102 Mass. 375 | Mass. | 1869
By the deed of May 17, 1865, the demandant’s grantor conveyed to the tenants all the standing timber on the demanded premises, with a proviso that it should be removed within three years. He afterwards mortgaged the land by a deed containing a reservation of all the trees growing on the same, describing them as having been sold to the tenants, and then conveyed it, July 1, 1867, to the demandant, with full covenants of warranty, excepting only the said mortgage. We are. to take it as proved, in accordance with the tenants’ offer of evidence, that the demandant, when he took his deed, had actual notice of the previous sale Of the trees to them. This writ of entry is brought before the expiration of the term limited for the removal of the timber, and describes the premises in the usual way, by metes and bounds. The tenants disclaim any title except that which they have under the deed of May 17.
Upon the case thus presented, we are of opinion that the title of the -tenants to this timber maybe maintained according to the honest intention of the original parties, as against the present demandant, without infringing any rule of law necessary for the security of titlp to real property. It is to be distinguished from most of the cases cited, in the important fact that the tenants claim under a deed, containing apt words for the convey
Growing timber constitutes a part of the. realty, is parcel of the inheritance, and, like any other part of the estate, may be separated from the rest by express reservation or grant, so as to form itself a distinct inheritance. It was early so held by this court in Clap v. Draper, 4 Mass. 265, and trespass by the grantee of such an estate against the owner of the soil was maintained, for cutting down the trees. See also Putnam v. Tuttle, 10 Gray, 48. When so separated and made a distinct estate, it has the incidents of real property so long as it remains uncut, and the rules which govern the title and transfer of such property must apply. It is like property in mines and minerals, which may in like manner be separated from the general ownership of the soil, and become distinct estates in freehold, with all the incidents belonging to such estates. Adam v. Briggs Iron Co. 7 Cush. 367.
It may be difficult in many cases to determine, from the terms of the contract, whether the parties intend to grant a present estate in the trees while growing, or only a right, either definite or unlimited as to time, to enter and cut, with a title to the property when it becomes a chattel. If the former be the true construction, then it comes within the statute, and must be in writing; if the latter, then, though wholly oral, it may be enforced.
The deed under which the tenants claim, thus interpreted, without doubt conveys an interest in real estate. A present interest in the trees was granted ; and, by the rule that the grant of a thing carries with it, as incident, all that is necessary to its beneficial enjoyment, there passed by the same deed a right to the soil upon which they grew. This last named right, for the reasons above suggested, was not a mere license to enter upon the land and remove the trees within a limited time, revocable, except so far as already acted upon; but rather a peculiar incorporeal right or easement in the grantor’s land, so far as necessary for the support and growth of the trees, with rights of entry and of way during the time named, and not revocable by the grantor.
The estate which the tenants acquired in this case may be regarded either as giving full title to the trees, defeasible by fail
Verdict set aside; new trial ordered.