219 Pa. 229 | Pa. | 1908
Opinion by
Mahan, the owner of the soil, by a contract in writing sold and conveyed to Kramer “ all the timber lying and standing down to eight inches across the stump two feet from the
In support of this position three Pennsylvania cases and two or three from other jurisdictions are relied on. It is true that in Boults v. .Mitchell, 15 Pa. 371, it was held that where a right of entry on land for the cutting and removing of timber has terminated, trespass quare clausum fregit may be maintained by the owner of the land against the person who had such prior right of entry, for cutting trees thereon, and the value of the trees cut and removed may be recovered ; and even when no time was limited in the grant, the law would imply a duty on the part of the grantee to remove within a reasonable time, certainly a reasonable time after notice to remove had been given, and a failure to remove would work a forfeiture of his rights.
It will be observed, however, that in all of these cases the timber had not been cut within the time specified. It remained standing in its original state and was part of the soil. It has been uniformly held in this state that standing timber is real estate and that a conveyance, thereof which does not contemplate an immediate severance is within the statute of frauds: Yeakle v. Jacob, 33 Pa. 376; Neumoyer v. Andreas, 57 Pa. 446; Pattison’s Appeal, 61 Pa. 294; Bowers v. Bowers, 95 Pa. 477; Miller v. Zufall, 113 Pa. 317. This may be, and perhaps is, the foundation of the rule. It would seem as though the original grant, being a sale of real estate, subject to a limitation of time in which to remove, failure to remove within the time should work a forfeiture, or reversion, of the same character of estate as that granted. Our cases hare gone no further. In no case has it been held in this state that where the timber had been cut and manufactured or prepared into lumber or other products and thus converted into personal property, the rule applies. Under these circumstances it will be helpful to review the decisions of other states in order to reach a proper. conclusion in the case at bar. It must be conceded that the courts of other jurisdictions have reached different conclusions in the determination of this question. In Maine the rule is that where a grantor in a deed reserved all timber, with the right to enter upon the premises at any time within five years for the purpose of cutting and removing the same, the trees remained a part of the real estate until severed from the soil, but if severed within the period limited they became personal property, the title to which vested in the vendee who did not forfeit the same by failure to remove within the five year period: Erskine v. Savage, 96 Me. 57. In Wisconsin it was decided that in a conveyance of standing timber with the right to remove within two years, trees cut and manufactured into stave bolts
Boisaubin v. Reed, 2 Keyes (N. Y.), 323; Strong v. Eddy, 40 Vt. 547, and perhaps a very few other cases, are authority for the contrary rule. After a careful review of all these cases we are convinced that the great weight of authority, as well
Judgment reversed.