Saltonstall v. Little

90 Pa. 422 | Pa. | 1879

Mr. Justice Paxson

delivered the opinion of the court,

Whether we regard the clause in controversy, in the deed from Kingsbury to Yeazie, as a reservation or an exception, the result is the same, for in either event Kingsbury of his grantee of the timber was restricted to twelve years, in which to cut and remove it. The reservation of the timber was not an absolute severance of it from the freehold. It was a severance only upon the condition of its removal within twelve years. It is true no such express condition appears, and the words proviso, ita quod and sub-oonditione, so much relied upon by Lord Coke, are not to be found in the reservation. But conditions may be implied as well as expressed. There is abundance in the reservation from which such a condition may be implied. “ If a man grant all his trees to be taken within five years, the grantee cannot take any after the expiration of five years, for this is in the nature of a condition annexed to the grant:” Bacon’s Abridgment, tit. Chrant. In Boults v. Mitchell, 3 Harris 371, there was a sale of the land, “excepting and reserving therefrom, all the timber that is suitable for rafting and sawing of every description.” In that case no time was limited within which the timber must be removed, yet it was held that “ the gran.t was in its very nature determinable; the right to cut timber was not to continue for ever at the pleasure of the grantee a.nd his assigns; and if from the destruction of the trees, the subject of it, or the refusal of the party to exercise his right after a reasonable notice to do so, the right itself is determined; the privilege of entry is gone with it, and the owner of the land may sue for breach of close, though he may not recover in damages the value of trees taken, the property of which is not in him.” In the case in hand, the parties have fixed the time during which the trees may be removed. Had no time been limited, the law would have allowed a reasonable time in order that the grantor might not be defeated of his reservation. But he would have been compelled to remove them upon reasonable notice, otherwise the reservation would have been a perpetual servitude, which was not contemplated by the parties, and is repugnant to the grant. Having fixed their own time for the removal of the timber, it is too clear for argument, that the right of entry falls with its expiration. It was contended, however, that even if the right of entry is gone, the right of property in the trees remains, and the case stated was evidently framed to meet this possibility. It would certainly be a barren right to own trees upon another’s land, with no right of entry to take them away. The plaintiffs have no such property in the timber. The limitation upon the right of entry was a limitation upon the exception itself. It was a reservation of the timber for twelve years and no longer. After that time, the trees remaining passed with the grant of the soil to which they were attached. This is the construction placed upon such agreements in the lumber regions where they are frequent, and it accords with 'reason and common sense. We made a some what similar ruling in Leconte v. Royer, decided in 1877.

It also appears by the case stated, that Kingsbury sold the timber in question, to one Joseph S. Hyde, twenty-six days before his deed to Veazie, with the right to take it o.ff for twelve years from the date of the sale. Whatever the rights of the defendants may be, the plaintiffs, by their own showing have none.

The judgment is reversed, and judgment on the case stated for the defendant.