| Me. | Dec 24, 1896
Action, of trover to recover the value of one hundred and twenty cords of hemlock bark. The plaintiff claims title to the same under a warranty deed from Luden B. Grout and wife to him, dated July 19th, 1881, conveying “all 'the hemlock bark and one-half of the hemlock logs on the following described land situated in. Sherman aforesaid, to wit: Lot numbered seventy-two containing one hundred four and 28-100 acres, more or less, with the right to enter upon said lot of land at any and all times during the term of ten years to cut any trees and make necessary roads, to remove said hemlock bark and hemlock trees or logs from the land during the term aforesaid without being liable for trespass.
“Also all the hemlock bark of every description on the following described land situated in said Sherman aforesaid, to wit: Lot numbered one hundred and thirty-nine, excepting land owned by A. T. Robinson in said lot, meaning all the hemlock bark on land conveyed to Lucien B. Grout by Joseph H. Dolley, May 14th, 1878, containing seventy-five acres more or less, with the right to enter upon said land at any and all times during the term of five*406 years from March 80, 1882; to cut any trees and make necessary roads to remove said hemlock bark from the land without being liable for trespass during term aforesaid. Reserving the right to peel and yard the hemlock bark on such land as we wish to clear for farming purposes for said Webber, for which the said Webber is to pay two dollars per cord tannery survey for so peeling and yarding said bark into the clearing where we can protect it from fires from the choppings, all the work being done in a workmanlike manner,” — habendum to him, his heirs, and assigns forever.
The time limit in the deed expired long before the summer of 1894, at which time the bark in question was cut and removed by parties under whom the defendants claim by purchase, and who had all the rights of the grantors in the bark, logs and land which the grantors had subsequent to their deed to the plaintiff.
Whatever rights the plaintiff might have had in bark peeled, or timber cut, prior to the expiration of the time mentioned in the deed, but not removed from the land, as in Plummer v. Prescott, 43 N. H. 277, it is unnecessary to consider, as no such fact's appear in the case.
The plaintiff’s claim is that the property in the bark and logs still remains in him, notwithstanding the expiration of the five and ten years mentioned in the deed; and that lie can maintain trover for their conversion; or enter and remove the same, although liable in trespass for damages in so doing.
The question to be determined is one of title, and the rights of the parties, therefore, must depend upon the construction to be given to the deed under which the plaintiff claims.
Such a construction as is contended for by the plaintiff, that, it was an absolute sale of all the bark and one-half the logs upon the land, and not merely such as might be peeled, cut and taken off within the periods mentioned, would be to disregard the true intent and meaning of the parties as evidenced by the language of the deed. We do not think the plaintiff had any title or interest in the bark or logs which remained unappropriated after the respective limits of five and ten years. The plaintiff had been granted all the hemlock bark, and one-half the hemlock logs on
The construction which we have given to this deed is sustained by numerous authorities. The case of Pease v. Gibson, 6 Maine, 81, is an early and leading case in this State upon this subject. In that case, there was a sale under seal of all pine trees fit for mill
This case was followed and approved in Howard v. Lincoln, 13 Maine, 122, which was a sale of pine timber on a certain tract, the vendee “ to have the term of three years from the date hereof, to haul said timber,” and the court held that it was a sale of only so much of the timber as the vendee might get off within the time limited.
Pease v. Gibson was also cited and approved by the court in Davis v. Emery, 61 Maine, 141, and must be regarded as the settled law of this State.
To the same effect are the cases of Reed v. Merrifield, 10 Met. 155; White v. Foster, 102 Mass, 375; Putney v. Day, 6 N. H.
The case last cited is very similar to the case at bar, and was decided upon the authority of Pease v. Gibson, and Howard v. Lincoln, supra. In that case there was a grant of all the pine timber standing and lying on a certain tract of land, with habendum to the grantee, his heirs and assigns forever, “ together with the right of entering upon the land until January 1, 1841, to cut and remove the said timber.” It was held that the grantee had no right or interest in the standing pine timber after that date, and must account for all cut and removed thereafter, and an injunction was granted against further cutting.
Upon the construction which we think should be given to the deed in this case, the entry must be,
Judgment for defendants.