From a general lease of the defendant's lands to one James Grice, for the purpose of making and distilling turpentine, there was a reservation to herself (deft.) of the privilege of using the tun timber. The plaintiff entered under James Grice, and afterwards the defendant entered and cut tun timber which was also good for making turpentine; indeed it appears that all pine trees fit for timber are also fir for turpentine; but there are trees fit for making turpentine which are not so for tun timber.
It was insisted by the plaintiff that this reservation of the privilege of using tun timber was inconsistent with, and repugnant to, the granting part of the lease, and as such, was void.
His Honor charged the jury that the exception was not repugnant to the granting portion, and that the exception was good, and that if they believed the defendant cut such trees only as were suitable for timber, she had a right to do so, and the plaintiff could not recover. To which instruction the plaintiff excepted.
Verdict for the defendant. Judgment and appeal to this Court. We cannot perceive any reason for doubting the correctness of the opinion expressed by his Honor in the court below. The exception of the trees fit for tun timber did not embrace all the trees fit for turpentine, and, therefore, was not repugnant to the grant in the lease under which the plaintiff claimed. The cases of Robinson v. Gee, 4 Ire. Rep. 186, andWhitted v. Smith, ante 36, are both cases in which the deeds contained exceptions as much, if not more, liable to objection than this, and yet no doubt was expressed as to their sufficiency, and the only questions raised on them were as to their extent: An exception necessarily excludes from a grant a part of the whole of what would otherwise be contained in it, and that is all the effect it has in this case.
PER CURIAM. Judgment affirmed. *Page 186