II. I
THE ESSENTIALS
OF
AMERICAN TIMBER LAW
BY
J P KINNEY, A.B., LLB., M.F.
FIRST EDITION
LIBRARY
FACULTY OF FORESTRY
UNIVERSITY OF TORONTO
NEW YORK:
JOHN WILEY & SONS, INC.
LONDON:
CHAPMAN & HALL, LIMITED
1917
Copyright, 1917,
by
J. P Kinney
5D
Press ot
THE ARTHUR H. CRIST CO.,
Cooperstown, N. Y.
TO THE MEMORY OF
A FATHER
FROM WHOM THE PRACTICE OF FOREST
CONSERVATION WAS LEARNED MANY YEARS
BEFORE THE AUTHOR FIRST MET THE
WORD "FORESTRY",
THIS BOOK IS DEDICATED.
THE ESSENTIALS OF AMERICAN TIMBER LAW
PREFACE
In the newspapers there has recently appeared what pur-
ported to be a true account of the experiences of an Indian
who, in the autumn of 1915, became separated from his com-
panions in the extensive uninhabited region south of Hudson
Bay. Surrounded by conditions peculiarly unfavorable to
human existence and confronted by dangers that would have
overwhelmed a man lacking in courage and initiative, this
native American maintained his poise and applied himself
to the task of mastering the situation into which a seemingly
unkind fate had brought him.
Not only did this Indian successfully resist the hostile
forces that threatened his destruction but, with no mechanical
appliance other than a knife, he started a fire, erected a
shelter, fashioned traps for fish and' game and supplied him-
self with the three essentials of life, food, clothing and a
habitation. Before the long sub-arctic winter was over he
had gathered a large stock of furs and had constructed a
canoe in which to transport his furs to a place where they
would have a value a hundred fold greater than in the wilder-
ness in which he had collected them.
The situation of those Americans who began the study
of forestry in the early years of the first decade of the
twentieth century was not entirely unlike that of the Ca-
VI PREFACE
nadian Indian lost in the wilds of the inhospitable north-
land. The author vividly remembers the time when the num-
ber of books printed in English that were devoted chiefly
to a discussion of the principles and practice of forestry as
applicable to American conditions, could be counted with
one bout of the fingers. However, with this inadequate
supply of equipment, comparable to the single mechanical
device possessed by the Indian, there went a resourcefulness
of nature and a persistency of spirit that has effected a mar-
velous development within less than a score of years from
the first announcement that an American university would
give a full course in the science and practice of forestry.
To-day there are courses leading to degrees in forestry in
many universities and almost monthly one or more books
are added to the long list of publications now available to
the student of this fascinating subject. The individual
forester is no longer required to devise and construct his
equipment but, in pushing forward to new fields of accom-
plishment, he may use the means contributed by the efforts
of others.
Yet in one field and, in the opinion of the writer, a field
of the greatest importance to the profession nothing has
been published other than pamphlets and circulars for the
information of the public as to statutes regarding fire, tres-
pass and reforestation laws. In the field of forest law there
is available to the American forester almost nothing in the
form of practical and convenient equipment. Without
tools any artisan is handicapped; without books for guid-
ance and reference a forester cannot find the time to con-
tribute to the further development of his profession.
It was with the purpose of saving others, as well as him-
self, the laborious task of "looking-up" the law in widely
scattered places each time that a specific question in forest
law arose, that the author undertook the work of bringing
together into a volume of convenient size the essentials of
American forest law.
For a long time subsequent to the formation of a purpose
to prepare such a compilation and discussion of the law, the
writer found no opportunity to begin the work. In fact
the material for the book now published has been gathered
chiefly during the early morning hours and the late evenings
PREFACE VII
of days devoted to work of another character. Fortun-
ately in this other work there was frequent occasion to
realize how valuable would be a book in which a forester or a
lumberman could find quickly the elements of the law appli-
able to his profession or business and in which a lawyer
could find conveniently a more or less exhaustive citation
of the authorities supporting established views of the law.
Had the author foreseen at the start how completely the
undertaking was destined to absorb, for a period of four
years, the hours and minutes that should have been devoted
to rest and recreation, he would possibly have abandoned
his purpose; and had the material to be collected been less
extensive or the time available for selection and arrange-
ment greater, certain general features of the book could have
been improved and numerous imperfections eradicated.
There being no similar work in English nor in any other
language so far as the knowledge of the writer extends
the selection of the headings under which the information
should be presented required considerable attention. To a
large extent the methods of the woodsman were employed.
Each line, first run and marked only by a few light blazes
and broken twigs, was later rerun one or more times and
checked up with other lines before it was definitely blazed
as constituting a part of the boundary of a chapter. At
times in this work, as in woods-work, the lines could not be
made to "close" as one would wish and occasionally upon the
completion of a chapter it became apparent, too late for
correction, that a different order of progression would have
proven more satisfactory. The author desires to acknowl-
edge his indebtedness to the Cyclopedia of Pleading and
Practice, published by the American Law Book Company
of New York, which has been relied upon largely both as to
the statement of the law and as to the references supporting
such statement.
Previous to the time when the present volume began to
take shape chapter by chapter, the writer had comtem-
plated the production of a work in a single volume that
should trace the development of all forest and timber
statutory law in America and also present the existing law
as determined by the statutes and by court decisions. As
the work proceeded it, became evident that the whole field
VIII
could not be appropriately treated in a volume of moderate
size. Furthermore it appeared practicable to divide the
whole subject into two fairly distinct branches; namely, the
law that was concerned with trees, forest and forest pro-
ducts as subject to public or private property interests, and
the law that found its stimulus in the interest that the public
had in the protection, extension and maintenance of both
public and private forests as a means of preserving and ad-
vancing the general welfare.
Accordingly the present volume is confined to a presenta-
tion of the existing law regarding trees and their products
as property, with only such observations and references to
historical development as are considered necessary to an
understanding of the reasons for existing law. No attempt
is made to present the substance of the existing statutes in
the various states, but much effort has been expended in as-
certaining and citing the page or section of the compiled
laws or session laws of the different states where the reader
may find the law set out in full. The author felt that by
this method he could best serve the requirements of both
foresters and lawyers.
The statutory law, constantly subject to amendment and
repeal, can be ascertained at any particular time only by a
first hand study of the law in each state as established or
modified by the latest enactment of the legislature. On
the other hand, the interpretation of the law by the courts,
though ever subject to new definition and differentiation and
occasionally to reversal, has much greater stability and for
this reason prominence is given in this volume to the law
as determined by the courts.
It is the purpose of the author to trace in another volume
the development in America of statutory law directed pri-
marily to the advancement of the social and economic wel-
fare of the people.
J. P KINNEY.
Washington, D. C.
August 1, 1916.
THE ESSENTIALS OF AMERICAN TIMBER LAW
TABLE OF CONTENTS
Page
Preface v
CHAPTER I
CLASSIFICATIONS OF PROPERTY
Section 1. Corporeal and Incorporeal Things 1
Section 2. The Development of the Terms Real
Property and Personal Property 1
Section 3. The Distinction Between Movables and
Immovables 3
Section 4. Modern Application of the Phrases Real
Property and Personal Property 3
Section 5. The Meaning of the Terms Tenemeni/s
and Hereditaments 4
Section 6. The Descent of Real Property and of
Personal Property 5
Section 7. Fundamental Distinctions Between Real-
ty and Personalty 5
CHAPTER II
FORMS' OF PRIVATE POSSESSION OF LAND AND
INCIDENTS THEREOF
Section 8. Ownership in Fee 8
Section 9. Tenancy in Tail 8
Section 10. Tenancy in Entirety 8
Section 11. Tenancy in Common 8
Section 12. Joint Tenancy 9
Section 13. Coparcenary 9
Section 14. Life Tenancy 10
IX
fc TABLE OF CONTENTS
\ Page
Section 15. Dower 10
Section 16. Curtesy\ 11
Section 17. Tenancy for Years 11
Section 18. Tenancy at Will 11
Section 19. Tenancy from Year to Year 12
Section 20. Tenancy from Month to Month 12
Section 21. Tenancy by Sufferance 12
Section 22. Quasi Tenancies 13
CHAPTER HI
TREES AND TIMBER AS PROPERTY
Section 23. The Use of the Terms Tree, Timber,
Wood, Forest and Woods 14
Section 24. The Special Significance of the Word
Timber as used in England and Amer-
ica 15
Section 25. The Legal Meaning of the Words Stump-
age, Lumber, Firewood, Etc 18
Section 26. Growing Trees are Real Property 20
Section 27. Severed Trees are Personal Property. ... 22
Section 28. Trees Subject to Taxation and Execu-
tion 23
Section 29. The Taxation of Logs and Other Timber
Products under Statutes 25
CHAPTER IV
THE LIABILITY OF A TENANT AS TO WASTE
Section 30. The Definition of Waste 26
Section 31. The Development of the Doctrine of
Waste 26
Section 32. Waste Under Tenancies of Dower and
Curtesy and for Definite Periods 27
Section 33. Waste by Tenants at Will 27
Section 34. Commissive, Permissive and Equitable
Waste . 28
XI
Page
Section 35. Waste Under a Joint Tenancy or a Ten-
ancy in Common 29
Section 36. The Avoidance of Liability for Waste ... 30
Section 37. The Essential Elements of Waste 31
CHAPTER V
THE DOCTRINE OF WASTE AS APPLIED TO TIM-
BER
Section 38. The Right of a Tenant to Estovers 32
Section 39.. Waste in England ' 33
Section 40. Waste in America 34
Section 41. General Principles in Both England and
America 34
Section 42. Limitations Upon the Amount of Timber
a Tenant may Cut 36
Section 43. The Relationship between Possession of
Land and Use of Timber must be Inti-
mate 37
Section 44. The Judge and Jury Exercise Broad
Discretion 39
Section 45. Local Custom and Previous Use are Im-
portant Factors 40
Section 46. The Express or Implied Terms of a
Conveyance or Demise will be given
Effect 41
Section 47. Waste by Tenants in Common 42
Section 48. A Liberal Construction is Given the Law
in America when Land is Cleared for
Cultivation 43
Section 49. The Removal of Timber must be Bene-
ficial to the Estate 46
Section 50. The Cutting of Immature Trees or
Those Bearing a Special Relationship
to the Land 46
Section 51. Prudent Husbandry is the Test as to
Waste 47
Section 52. Special Statutes Permitting or Forbid-
ding the Cutting of Timber 48
XII TABLE OF CONTENTS
CHAPTER VI
REMEDIES 'FOR WASTE
Page
Section 53. Early Common Law Remedies 50
Section 54. Modern Remedies at Law 51
Section 55. Statutory Remedies for Waste 52
Section 56. The Effect of Special Conditions upon
the Form and Time of Action 53
Section 57. The Remedy Applicable to Tenants
at Will 54
Section 58. Damages Recoverable at Law 54
Section 59. Multiple Damages and Forfeiture Pro-
vided for by Statute 54
Section 60. Multiple Damage and Forfeiture Stat-
utes are not Strictly Enforced Against
Cotenants 56
Section 61. The Use of Injunction for the Preven-
tion of Waste 57
Section 62. Injunctions are Granted Liberally in
Modern Practice 58
Section 63. An Equity Court may even Redress Fast
Injuries after its Jurisdiction Attaches 59
Section 64. Injunction Regarding the Cutting of Tim-
ber 60
Section 65. Injunction Against the Cutting of Tim-
ber by a Vendor or Purchaser under an
^Executory Contract of Sale 63
Section 66. Grounds for a Refusal of an Injunc-
tion 64
Section 67. Injunction is Available for the Protection
of Public Timber 65
CHAPTER VII
CIVIL LIABILITY FOR TRESPASS UPON TIMBER
AND FOR THE CONVERSION OF TIMBER PRO-
DUCTS
Section 68. Trespass upon Realty.
66
TABLE OF CONTENTS XIII
Page
Section 69. The Interest Necessary for a Realty Ac-
tion 67
Section 70. Adverse Possession 69
Section 71. Trespass upon Severed Trees as Person-
alty 71
Section 72. The taking of Timber after the Expira-
tion of the time Limited for Removal 72
Section 73. A Trespasser Acquires no Right in Tim-
ber Cut 73
Section 74. The Measure of Damages in Trespass
upon Realty 73
Section 75. The Highest Measure of Damages is
Allowed 75
Section 76. A Choice of Actions in Timber Trespass
Cases 78
Section 77. Recovery by Replevin 79
Section 78. Conversion 81
Section 79. Conversion in Actions Against an In-
nocent Timber Trespasser 83
Section 80. The Rule in Wisconsin Regarding Inno-
cent Timber Trespass 90
Section 81. The Rule in Michigan Regarding Inno-
cent Timber Trespass 92
Section 82. The Liability of an Innocent Purchaser
from an Unintentional Trespasser .... 92
Section 83. The Liability of a Wilful Trespasser or
of his Vendee with Notice 93
Section 84. The Liability of an Innocent Purchaser
from a Wilful Trespasser 94
Section 85. Exemplaiy Damages may be Allowed in
Cases of Wilful Trespass 94
CHAPTER VIII
STATUTORY CIVIL LIABILITY FOR TIMBER TRES-
PASS
Section 86. The Development of Timber Trespass
Legislation in America 96
XIV
TABLE OF CONTENTS
Section 87. Multiple Damages and Penalties under
Statutes 97
Section 88. Conditions Necessary for the Mainten-
ance of a Statutory Action 100
Section 89. Defenses in Actions for Statutory Dam-
ages 103
Section 90. Determination of the Amount Allowable
as Multiple Damages 104
Section 91. Interest on Damages 105
Section 92. Timber Cut from Federal and State
Lands 106
Section 93. Civil Damages for the Burning of the
Woods 109
Section 94. Statutory Liability of Railroad Opera-
tors for the Setting of Fires Ill
CHAPTER IX
INJURY TO GROWING TREES AS A CRIMINAL
OFFENSE
Section 95. The Cutting of Growing Timber, State
Statutes 113
Section 96. The Establishment of Criminal Intent
is Essential to Conviction 116
Section 97. Criminal Timber Trespass Statutes are
Construed Strictly 117
Section 98. Firing the Woods, State Statutes 118
Section 99. Special State Statutes Requiring Fire
Precautions by Railroads 120
Section 100. Federal Trespass Statutes and the Inter-
pretation of Them by the Courts 122
Section 101. Federal Statutes Regarding the Firing of
the Public Lands . 127
TABLE OF CONTENTS XV
CHAPTER X
CONTRACTS REGARDING GROWING TIMBER
Pago
Section 102. The Fundamental Principles of the Law
of Contracts 129
Section 103. Misrepresentations at the Time of Sale
of Timber or Timberland 132
Section 104. Trees may be Constructively Severed. . . 134
Section 105. Fallen Trees Sometimes Pass with the
Land 136
Section 106. Special Interests in Trees 137
Section 107. Interests in Land Incident to Timber
Ownership 137
Section 108. The Application of the Statute of Frauds
to Timber Sales 139
Section 109. The English Doctrine as to the Statute
of Frauds 141
Section 110. The Rule in Massachusetts, Maine and
Connecticut 142
Section 111. The Maryland Rule 143
Section 112. The Pennsylvania Rule 143
Section 113. The Kentucky Rule 143
Section 114. The Rule in the Majority of the States. . 145
Section 115. Sales of Severed Products not Within
the Statute 145
Section 116. The Period Allowed for Removal 146
Section 117. The Effect of the Termination of the
Time Limited for Removal 147
Section 118. The Title to Timber Cut but not Re-
moved before the Expiration of the
Limited Time 153
Section 119. The Reservation of Title Until Pay-
ment is Made 154
Section 120. The Description of the Timber Sold ... 156
XV* ' TABLE OF CONTENTS
CHAPTER XI
CONTRACTS REGARDING THE PREPARATION
AND MANUFACTURE OF TIMBER PRODUCTS
Page
Section 121. Contracts for the Logging of Timber. ... 160
Section 122. Divisible Contracts and Partial Perform-
ance 162
Section 123. The Application of General Legal Prin-
ciples to Contracts for the Cutting of
Timber . 165
Section 124. Contracts for the Sawing of Lumber. . . . 167
Section 125. Liens for Expenditures and Services in
the Manufacture of Timber Products . 168
Section 126. Statutory Liens 170
Section 127. Classes of Service Covered by Statutes. . 172
Section 128. Persons Entitled to Statutory Liens ... 175
Section 129. Logging Roads and Railroads 177
Section 130. An Employer's Liability for Injuries to
Employees 178
CHAPTER XII
CONTRACTS FOR THE SALE OF TIMBER PRO-
DUCTS
Section 131. The Essentials and Scope of Contractual
Agreements 183
Section 132. Legal Delivery and the Transfer of Title 184
Section 133. Contracts for Delivery in Installments or
as Manufactured 188
Section 134. Delivery to a Common Carrier 190
Section 135. The Right of Stoppage. 191
Section 136. The Rights and Liabilities of Common
Carriers in Particular Cases 192
Section 137. General Principles of Law Applied in
Actions for the Breach of Contracts
for the Sale of Timber Products 193
Section 138. The Liability of a Principal for the Acts
of an Agent 194
TABLE OF CONTENTS
CHAPTER XIII
XVII
THE INSPECTION AND MEASUREMENT OF TIM-
BER PRODUCTS
Page
Section 139. The Development of Legislative Regu-
lation of Inspection and Measurement 196
Section 140. Legal Standards of Timber Measure-
ment 199
Section 141. Custom Often Controls 200
Section 142. A Measurement May be Conclusive .... 202
Section 143. Official Inspection and Measurement. . . . 203
Section 144. Kinds of Evidence Admissible 205
Section 145. Court Instructions to Juries . . 208
CHAPTER XIV
THE TRANSPORTATION OF TIMBER PRODUCTS
BY FLOTATION
Section 146. The Use of Streams 210
Section 147. The Use of and Injuries to Land Ad-
jacent to Streams 214
Section 148. The Rights of a Riparian Owner as to the
use of a Drivable Stream 217
Section 149. Contracts for the Floating of Logs 218
Section 150. Commingled Logs 219
Section 151. General Statutory Regulation of Log
Driving 220
Section 152. Log Driving and Booming Companies. . 223
Section 153. The Collection of Tolls by Driving and
Booming Companies 226
Section 154. The Liability of Driving and Booming
Companies 229
Section 155. Scattered or Stranded Logs 231
Section 156. Statutory Regulation of the Disposal of
Floated Timber over which the Owner
has Lost Control 232
Section 157. The Conversion of Floating or Stranded
Logs. . . , , , 230
XVIII TABLE OF CONTENTS
Page
Section 158. Criminal Interference with Floatirg Tim-
ber 238
CHAPTER XV
STANDING TIMBER AS INCLUDED IN A MORT-
GAGE
Section 159. The Legal Effect of a Realty Mortgage . 241
Section 160. A Mortgagee May Protect his Interest
in Timber when the Mortgagor is in
Possession of the Land /. 242
Section 161. Remedies Available to a Mortgagee after
Foreclosure 245
Section 162. Limitations upon the Use and Sale of
Timber when a Mortgagee is in Pos-
session of land 246
Section 163. Rights in Timber after Foreclosure of a
Mortgage on Land 246
CHAPTER XVI
TREES ON A BOUNDARY LINE OR IN A HIGH-
WAY
Section 164. Rights of Adjoining Land Owners Re-
garding Trees on or Near the Division
Line ! 248
Section 165. Trees Marked as Boundary, Corner or
Witness Trees 251
Section 166. Trees in Streets and Highways 253
Section 167. Injuries to Trees by Public Service Cor-
porations 256
Section 168. Trees Subject to Eminent Domain 259
TABLE OF CONTENTS XIX
CHAPTER XVII
TREES, NURSERY EQUIPMENT, AND SAWMILLS,
AS FIXTURES
Page
Section 169. The Definition of Fixtures. . . > 261
Section 170. Trees and Nursery Appliances as Fix-
tures in England 262
Section 171. Trees and Nursery Appliances as Fix-
tures in the United States 263
Section 172. The Rule as to Fixtures is Dependent
upon the Relationship Between the
Parties 264
Section 173. Sawmills and Related Structures or Me-
chanical Devices as Fixtures 265
CHAPTER XVIII
THE POLICY OF THE NATIONAL GOVERNMENT
IN REGARt) TO THE FREE USE OF TIMBER TAKEN
FROM PUBLIC LANDS
Section 174. The Use of Timber by Settlers and
Temporary Occupants 268
Section 175. The Cutting of Timber on Mineral
Lands 272
Section 176. The Free Use of Timber by Telegraph
and Railroad Companies 277
ERRATA
On page
! 5,
All footnote reference numerals after the first should be ntrtased one unit, in the text.
12,
Section 9,
Line 7,
for "therafter"
read thereafter
39.
Section 44,
" 3,
" "or"
" of
44,
" 5,
" "or"
" of
45,
" 2,
" "cat"
" act
45,
" U,
' "prejudicial" '
" prejudicial
48.
" 7,
" "ane"
" and
48,
Section 52,
" 8.
" "tenency"
" tenancy
51,
" 5,
" "estates"
" estate
52,
" 2,
" "does"
" did
52,
Section 55,
" 1,
" "mnay"
" many
71,
Section 71,
" 3,
" "een"
" been
79.
" 8,
' "co-tennant"
" co-tenant
79,
" 9,
' "tennant"
" tenant
80,
.
" 1,
" "rees"
" trees
81,
final
"
" "tinent"
" intent
84,
final Paragraph
" 1,
" "intentional"
" unintentional
86,
" 13,
" "damage"
" damages
89,
" 18,
" "specificaily"
" specifically
90.
final
"
" "thet"
" that
105.
Section 91,
" 7,
" "or"
" on
109,
" 2,
" "hi splea"
" his pica
122,
" 9,
' "ndjoining"
" adjoining
125,
final paragraph
" 3,
" "enforced"
" construed
143,
Section 112,
" 8,
" "severence"
" severance
190,
" U,
" "il"
" li
190,
near bottom
" 34,
" "payee"
" drawee
247,
" 8.
" "in unction"
" injunction
255,
second Paragraph
" 9,
" "often"
" main
250,
" "
" 6,
" "menance"
" menace
261,
" "
" 2.
" " "as" "
" aa"
261,
M U
" 8.
" "self"
" self"
264,
" 1,
" "own"
" "owner"
THE ESSENTIALS
OF
AMERICAN TIMBER LAW
CHAPTER I
CLASSIFICATIONS OF PROPERTY
1. Corporeal and Incorporeal Things. The term
"property" has been, and still is, used in more than one
sense. Thus at times the word is used to signify the thing
owned, and again the word denotes the right or interest
which one has in a thing that is susceptible of ownership.
The latter use of the term is better adapted to the require-
ments of a legal discussion.
Some writers on English jurisprudence have made a
classification of property into corporeal things, or physical
objects that are visible and tangible, and incorporeal things,
or those that have no physical existence but are mere rights
or groups of rights which are related to and dependent upon
corporeal things. It will be noted that the word "thing"
is here used in a broad sense, and includes not only material
objects that have physical existence, but also immaterial
concepts that have only an ideal existence. The term
"thing" is here equivalent to the word "res," or the word
"chose," as used in legal parlance.
2. The Development of the Terms Real Property
and Personal Property. While learned jurists were writ-
ing profound works upon the theory of corporeal and in-
corporeal rights, and attempting to explain the abstruse
and subtle distinctions between lands, tenements and heredit-
aments on the one hand and goods and chattels on the
l
2 CLASSIFICATIONS OF PROPERTY
other, there gradually developed in the common law a
division of the same rights along an entirely different line
of cleavage. This distinction appears to have had its
origin in the pleadings, or procedure, by which property
rights were enforced. Thus there were certain actions in
which a tangible, specific thing, or right, which formed the
subject matter of a legal contest could be recovered and
there were other actions in which the complainant could
demand, only, either the restitution of the thing of which
he was deprived or money damages sufficient to redress the
wrong which gave rise to the action at law. The first
class of actions were called "real actions"; the second class
"personal actions." Real actions were allowed only in
those instances in which the subject matter of the dispute
was considered of such importance that its value could not
be measured in money, where the character of the property
right was such that the restoration of the thing, or right,
to its true owner was the only just solution of the contro-
versy. When the subject matter of the dispute was not
something which was considered by the administrators of
the law to have this peculiar character the complainant
was not permitted to bring a "real" action. The things
held in highest estimation at the time of the development
of this distinction were land and the rights or privileges
which were incident to, or sprang from, land ownership.
Thus things which could be recovered in a "real" action
came to be called "realty" instead of "lands, tenements
and hereditaments," while all things which were not con-
sidered to be of such a character as to support a "real"
action for specific recovery came to receive the appellation,
"personalty." In a further development of the law, it
was recognized that there were certain interests in land which
could not consistently be held to form the basis of "real"
actions, and gradually such intersts in land assumed the
full character of personal property. Thus descendible
rights in land, an interest in land during the life of the one
holding the interest, and, except where modified by statute,
an interest in land during the lifetime of another person
(an estate pur autre vie) and a few other special interests
in land were considered realty, while leaseholds of lands,
hens on land in the form of mortgages, and the interest
DEVELOPMENT OF TERMS 3
which partners hold in land were determined to be per-
sonalty. 1 One well denned exception to the general rule
of law exists in what is known as equitable conversion.
By this doctrine money which has been left by will with a
direction that it be invested in land for the benefit of the
legatee (devisee) is considered realty while land which, by
direction of a will, is to be converted into money before
passing into the possession of the beneficiary of the will
is considered personalty. 2 Although under modern pro-
cedure any tangible thing can be specifically recovered, the
distinction between realty and personalty remains of the
greatest importance in the law.
3. The Distinction Between Movables and Im-
movables. A classification which was never formally recog-
nized in the English common law, but which is nevertheless
of the greatest practical importance is that which classes
all actually existent things that form the subject matter of
property rights into movables and immovables. Both
movables and immovables aie comprised within the term
corporeal as heretofore defined, and the term "immovables"
is in a sense co-extensive with the word "land" as used in
law. The word "land" as used in law has a different
significance than it has in common usage, and many ob-
jects which are classed as immovables in the eye of the
law because of the relationship which they sustain to land
are in fact susceptible of removal. The spherical pyramid
of which any portion of the earth's surface is the base and
which has its apex at the center of the terrestrial globe
is of course immovable; and the base itself (considered
geometrically, and apart from the rock and soil upon its
surface) is not susceptible to movement by the power of
man from the position which it occupies in relation to the
remainder of the earth's surface. However, in law not
alone the surface of the earth within the defined superficial
area but also all material substances placed by nature within
such area are immovables and even things which become
attached to or closely associated with the land through the
industry of man are classed as a part of the land and there-
1. Bopp V. Pox, 63 111. 540.
2. Crate v. Leslie, 3 Wheaton 563.
4 CLASSIFICATIONS OF PROPERTY
fore immovable. All tangible objects which are not so
related to land as to be considered a part thereof are con-
sidered "movables."
4. Modern Application of the Phrases Real Prop-
erty and Personal Property. Accordingly we may say
that real property consists of land or of things so attached,
or annexed, to land as to be properly considered a part of
the land; and we may define personal property as including
all things and objects, subject to private property rights,
which are of a movable character; i. e., things which are
not annexed to land in any way, or if annexed, the annexa-
tion is of such a loose and temporary nature that the objects
may not properly be considered a part of the land to which
they are attached. As was indicated above certain prop-
erty rights in immovable things are considered personalty.
These legal rights which partake of the nature of both realty
and personalty are often called "chattels real," the term
chattel in itself being broad enough to include both goods
and rights. The law seems to regard these rights not as
interests in the realty itself, but as security for the personal
claims from which they arise and upon which they rest.
Under both the Roman and the common law the owner-
ship of any portion of the earth's surface carried with it,
as an incident thereto, the ownership and control of every
object or substance permanently affixed to such land, and a
theoretical right of control not only over the solid geomet-
ric figure which would be produced by the extension of
lines from each bounding point, or angle, of the superficial
tract inward to the center of the earth, but also over the
space included within the extensions of such lines outward
from the earth's surface to the limit of the celestial sphere
(Cuius est solum, eius est usque ad caelum). In the develop-
ment of English law the inflexibility of this common law
rule as to ownership by the holder of the realty of all ob-
jects which might be annexed to the soil was greatly weak-
ened in the efforts of the courts to protect the equitable
interests of tenants for life or for years and was eventual-
ly modified by statutory provisions.
5. The Meaning of the Terms Tenements and
Hereditaments. Although we shall not have occasion ,
FORMER RULES NOW MODIFIED 5
to enter into any extended discussion of the terms "tene-
ments" and "hereditaments," it may be well to here state
broadly the distinction between these and the term "land."
The word "tenement" was said by Blackstone to signify
"everything that may be holden, provided it be of a per-
manent nature, whether it be of a substantial and sensible,
or of an unsubstantial, ideal, kind." 1 Thus, this term
included all that was covered by the term "land" and in
addition embraced all incorporeal things which had a con-
nection with land. It included even some things which
were not subject to common law tenure. 1
The term "hereditament" covered all those objects of
property, undisposed of by will, which upon the death
of the owner passed, by act of law, to the heir, and not to
the executor. The term usually includes everything signi-
fied by the term "tenement" and even, in England at least,
may include property of a personal nature. 2
6. The Descent of Real Property and of Personal
Property. On the death of the owner, personal property,
at common law, passed to the executor or administrator
of the estate, for distribution to the legatees or next of kin
after the payment of the debts of the deceased. Real prop-
erty, on the other hand, passed immediately to the heirs
or devisees, and could be held for the debts of the deceased
only when the personal property was insufficient to irieet
them. 3 This rule has been modified by a statute in Eng-
land and in a number of American states, so that the exe-
cutor or administrator, in many instances, now takes pos-
session of real property as well as personal property in effect-
ing a settlement of the estate of a decedent. 4
In England those who take the real property as heirs
of an intestate decedent are generally different from those
who take the personalty as next of kin. In the United
States statutory provisions usually insure that the realty
and personalty of an intestate decedent shall pass to the
same person, or persons. 5
1 2 Bl. Com. 17.
2. See 2 Pollock & Maitland, Hist. Eng. Law, 148.
Challis, Real Prop. 37; Co. Litt. 18a; Gray Perpetuities, Sec. 43, note.
3. Co. Litt. 6a; Bl. Com. 17; Challis Real Prop. 39; Stafford v. Buckley, 2 Ves. Sr.
170; Mitchell v. Warner, 5 Conn. 518.
4. 1 Woerner, Administration, Sec. 276; 11 Am. & Eng.'Enc. Law(2d Ed.) 830-845,
984, 1035, 1068, 1085; See Webster v. Parker, 42 Miss. 465, Finch's Cases 42.
5. 60 and 61 Viet. C. 65 (1897) ; 11 Am. & Eng. Enc. Law (2nd Ed.), 1037 et seq.
6. See 1 Stimson, Am. St. Law, Sees. 3101, 3104.
6 CLASSIFICATIONS OF PROPERTY
7. Fundamental Distinctions Between Realty and
Personalty. The fundamental difference between land
and personal property in their legal relations which must
be accentuated arises from the fact that the one class of
property is fixed or "immovable" in nature while the other
class consists of "movable" things. Thus it happens that
one person may enjoy the ownership of a piece of land while
another contemporaneously enjoys certain privileges of
use and possession, and the owner need under ordinary
circumstances have no particular concern as to the possi-
bility of the value of his property right being diminished
as a result of the advantages which the other person enjoys
through possession, nor need he generally feel disquietude
lest the' one in possession, through evil purpose, attempt
to deprive him permanently of the subject of his right.
Such is not the case, however, with personalty, for the
enjoyment of the advantages of such property is relatively
much more dependent upon possession and because of its
movable character personalty is more exposed to the danger
of an appropriation by the one in possession to the per-
manent loss of the rightful owner. From this difference
in character it occurs that there is no counterpart in per-
sonal property law, to the doctrine of "estates" as developed
in real property law, through which different persons are
enabled to enjoy separate and distinct rights in the same
property contemporaneously, which rights may not com-
prise the enjoyment of present possession.
Statute law usually makes a distinction between real
and personal property as b o the form of creation and trans-
fer of rights therein. Delivery of possession coupled with
an intention to part with the property right is generally
sufficient to transfer a right of property in movables; while
a written instrument is required for the transference of an
interest in land of any importance. 1
Agaifeall legal rights pertaining to land are determined
by the law of the place where the land is situated, (the
lex rei sitae). All legal rights pertaining to movable chattels
1. Williams, Pers. Prop. 36; Browne, Statute of Frauds, C. 1; 1 Stimson Am. St.
Law, Sec. 4143.
FUNDAMENTAL DISTINCTIONS 7
are determined by the law of the place of domicile of the
owner. l
At common law the legal proceedings necessary to re-
cover land were essentially different from those necessary
for the recovery of movables. Although the procedure
has been harmonized by statute to a large extent, yet actions
regarding land must generally be brought in the jurisdic-
tion where the land is situated; but this rule is not appli-
cable to actions as to movables. 2
1. Minor, Conflict of Laws, Sec. 13; Dicey, Conflict of Laws (Am. Ed.) 72; Freke v.
Lord Carbery. L. K. l(i Eq. 401. (The distinction here made between mov-
ables and immovables is not the same as that between real and personal prop-
erty.) See Sec. of Tiffany Modern Law Real Prop., Chicago 1912, disap-
proving of decision in Despard v. Churchill, 5.'! N. V. 192.
2. 3 IJ1. Com. 294: Brantley, Pers. Prop.. Sec. 7: Notes to Moctyn v. Fabrigas,
1 Smith's Lead. Cases 052: MeCionigle v. Atchison, 33 Kan. 726, Finch's
Cas. 05.
CHAPTER II.
FORMS OF PRIVATE POSSESSION OF LAND AND
INCIDENTS THEREOF
8. Ownership in Fee. An owner of land in fee
simple is, under the common law, subject to no restrictions
as to the manner in which he shall manage the property,
provided he does not use it in such manner as to injure the
persons or property of others; but there are important re-
strictions as to the use of real estate which must be observed
by persons who are in possession of it under a title which
is less than a fee simple.
9. Tenancy in Tail. Under the common law estates
in tail might be created. Real estate held in tail did not
descend to the holder's heirs generally but only to the
heirs of his body; i. e., his lawful issue. Through failure
of issue, the estate ended with the death of the tenant.
The holder did not have the full control over the disposition
of the property which was enjoyed by one holding a fee
simple title. Estates in tail no longer exist in the United
States.
10. Tenancy in Entirety. This is the tenancy by
which husband and wife hold land conveyed or demised
to them by a single instrument which does not expressly
require them to hold it by another form of tenancy. There
is butt a single estate between the two. Neither is liable
for waste during such tenancy. 1 The rights, privileges
and duties of the husband and wife as to timber on estates
thus held will require no separate discussion. In a few
American states property acquired during marriage takes
a peculiar status as community property which is held in
equal shares by the husband and wife.
11. Tenancy in Common. Tenants in common are
1. Davis v. Gilliam, 40 N. C. 308.
8
COTENANTS 9
persons who hold property, real or personal, by several
and distinct titles, or by a single title and several rights,
but by unity of possession. The qualities of the estates
of the co-tenants may be different, the shares unequal
and the manner of acquisition of title not uniform. Pos-
session may be the only unity between them, and there
may be an entire disunion of interest, title and time. A
tenancy in common springs up whenever an estate in real
or personal property is owned concurrently by two or more
persons under a conveyance or under circumstances which
do not either expressly or by necessary implication call
for some other form of co-tenancy. Such tenancy may be
created by will, by descent, by purchase, sale or convey-
ance. 1 Before severance, or partition, each co-tenant is
entitled to an interest in every inch of the soil; but no one
of them is entitled to the exclusive possession of any par-
ticular part of the land, each being entitled to occupy the
whole in common with the others or to receive his share
of the rents and profits. 2
12. Joint Tenancy. A joint tenancy exists where a
single estate in property, real or personal, is owned by two
or more persons, other than husband and wife, under one
instrument or act of the parties. 3 Such estate can be created
only by a devise, conveyance or act of purchase inter vivos
and not by descent or act of law. Unlike tenants in com-
mon, joint tenants hold by a single title and one right. A
joint tenant can convey his interest to his co-tenant by a
release and upon his death his interest goes to the surviving
co-tenant or co-tenants. A tenant in common cannot re-
lease his interest to his co-tenant nor does the right of
survivorship exist in his favor. In both England and the
United States the modern tendency of both statutes and
court decisions is to hold a conveyance to two or more
persons to create a tenancy in common rather than a joint
tenancy unless the words of creation expressly require
the tenancy to be held joint.
13. Coparcenary. An estate in coparcenary is an
1. 38 Cyc. of Law & Proc. Ed. 1904, p. 6.
2. 38 Cyc. of Law & Proc., p. 4.
3. 23 Oyc., p. 483.
10 FORMS OF POSSESSION
estate acquired by two or more persons, usually females,
by descent from the same ancestor. There is but a single
estate and it resembles a joint tenancy more closely than a
tenancy in common, but it is like the latter in that there
is no survivorship. Estates in coparcenary are now gen-
erally abolished or changed into tenancies in common in
the United States by statute.
14. Life Tenancy. "An estate for life is a freehold
interest in land, the duration of which cannot extend beyond
the life or lives of some particular person or persons, but
which may possibly endure for the period of such life or
lives." 1 During the period that the estate endures, the
life tenant is entitled to the exclusive possession and en-
joyment of the premises but he cannot take advantage of
this possession and beneficial use in such a manner as to
diminish or abridge the right of the reversioner or remain-
derman who is to take the full title as soon as the life estate
is ended.
15. Dower. Dower consists at common law of a
third part of all the lands and tenements of which a hus-
band was seized in fee simple or fee tail at any time during
coverture, and to which any issue which his wife might
have had, might by possibility have been heir, to be held
by the wife for the term of her natural life. 2 After assign-
ment of dower in particular lands by metes and bounds and
entry thereon, the widow is seized of an immediate free-
hold and is vested with a life estate therein. 3 As standing
timber is part of the realty a widow's dower attaches thereto.
The general rule in the United States is that a wife is
dowable of wild lands which are not valuable except for
the timber thereon, 4 but in some states court decisions or
statutes exclude dower in such lands unless they are used
1. 16 Cyc. 614.
2. 14 Cyc. 880.
3. 14 Cyc. 1013.
4. Pike v. Underbill, 24 Ark. 124; Chapman v. Schroeder, 10 Ga. 321; Schnebly v.
Schnebly, 26 111. 116; Hickman v. Irvine's Heirs, 3 Dana (Ky.) 121; In re
Campbell 2 Dougl. (Mich.) 141; Brown v.Richards, 17 N. J. Eq. 32; Walker
v. Schuyler 10 Wend. (N. Y.) 480; Allen v.McCoy 8 Ohio 418; Macaulay v.
Dismal Swamp Land Co., 2 Rob., Va., 507; Canada. Titus v. Haines, 11
Nova Scotia 542; See 17 Cent. Dig. tit. "Dower."Sec. 35. Contra. Conner Y.
Shepherd. 15 Mass. 164.
DOWER, CURTESY AND FIXED TERMS 11
in connection with the dwelling house of the widow or with
cultivated lands held by her as dower, l even when improved
by grantee of husband. 2
16. Curtesy. Curtesy is the estate to which by com-
mon law a man is entitled on the death of his wife, in the
lands or tenements of which she was seized in possession
in fee simple or in tail during then* coverture, provided
they had lawful issue born alive which might have been
capable of inheriting the estate. A tenant by the curtesy
is entitled to exercise the same rights in the reasonable
enjoyment of his estate as may be exercised by any tenant
for life. 3 In many of the States of the American Union
estates by curtesy have been abolished and in lieu thereof
the husband has been given a dower right of the same
quality and character as the dower of a wife, which is es-
sentially a life estate in one-third of the real estate of which
the deceased spouse was seized during the period of the
married life.
17. Tenancy for Years. A tenancy for years is any
tenancy which is created for a definite ascertained period,
and is ordinarily evidenced by writing. Such a tenancy
may embrace any fixed time whether a number of weeks
or months or a single year, as well as a definite number of
years. "To create an estate for years the lease must be
certain or capable of being made certain as to beginning,
duration and termination of the term." 4
18. Tenancy at Will. A tenancy at will in lands is
the estate held by a tenant who has the right to remain in
possession of the land during the joint wills of himself
and the one holding the fee to the land. A tenant at will
is in possession by right, with the consent of the landlord
either express or implied; and he is the owner of the premi-
1. See Ford v. Erskine, 50 Me. 227; Stevens v. Owen, 25 Me. 94; Mosher v. Mosher,
15 Me. 371; Kuhn v. Kaler, 14 Me. 409; Shattuck v. Gragg, 23 Pick. (Mass.)
88; White v. Willis, 7 Pick. (Mass.) 21, 11 Am. Dec. 132; Fuller v. Watson,
7 N. H. 341; Johnson v. Perley, 2 N. H. 56; 9 Am. Dec. 35.
2. Webb v. Townsend, 1 Pick. (Mass.) 21, 11 Am. Dec. 132.
3. 12 Cyc. 1013. Armstrong v. Wilson, 60 111. 226; Babb v. Perley 1 Me. 6 (Hus-
band's interest in trees cannot be taken on execution). Of. Garnett Smelting
& Development v. Watts, 37 So. 201 (Ala. 1904.) Dower case.
4. 24 Cyc. 959.
12 FORMS OF POSSESSION
ses he occupies, until the tenancy has been terminated by
notice from his landlord to vacate, but he has no certain
and indefeasible estate which he can assign or grant to
any other person. l
19. Tenancy from Year to Year. Tenancies of
this character have arisen, through the application by the
courts of principles of policy and justice, out of what were
once tenancies at will, determinable at any time by either
party without notice. 2 A tenant from year to year has
a lease for a year certain, with a growing interest during
every year therafter, springing out of the original contract
and parcel of it. But, although it has many of the qualities
of a term for years, the tenancy is substantially a tenancy
at will, except that such tenancy cannot be determined
by either party without due notice to quit. Such a ten-
ancy may arise either expressly or by implication and
either by writing or by parol. A lease for no definite term
with an annual rent, which may be payable quarterly or
monthly, is a lease from year to year. The incidents of
this estate are generally the same as those of an estate for
years.
------ ;
1
20. Tenancy from Month to Month or Week to
Week. A tenancy from month to month or from week
to week, like one from year to year, is of the same nature
as a tenancy at will, but requires notice for its termination.
21. Tenancy by Sufferance. A tenancy by suffer-
ance exists where a person who has come into possession
of premises lawfully continues to remain thereon after
the right to do so has ended. He does not have even the
interest possessed by a tenant at will but is in possession
wrongfully and holds such possession only by the laches
or neglect of the rightful owner. The so-called "tenant
by sufferance" has no estate which he can transfer or trans-
mit and strictly speaking is not a tenant. However, al-
though, in most respects, he has possession only like a
1. 24 Cyc. 1037.
2. 24 Oyc. 1027; Real Prop., Tiffany, Ed. 1912. Sec. 57 et seq., p. 144.
QUASI TENANCIES 13
disseizor, yet he cannot be sued in trespass until the owner
enters. 1
22. Quasi Tenancies. A vendor of land who re-
mains in possession after the execution of a contract of
sale, a judgment debtor in possession of attached land, or
a mortgagor in possession, in a jurisdiction in which a realty
mortgage is held to vest the title to the land in the mort-
gagee prior to redemption, is a tenant at will or by suffer-
ance. Likewise a purchaser in possession under an execu-
tory contract of sale, a purchaser at a tax sale in possession
prior to the period allowed for redemption, or a mortgagee
in possession under a mortgage having the legal effect of
a lien, is ordinarily considered to occupy the premises as a
tenant. Executors, administrators, trustees and guardians
also may sustain relationships toward land similar to forms
of tenancy.
1. Modern Law of Real Property, Tiffany, Chicago 1912, Sec. 60, p. 150.
CHAPTER III.
TREES AND TIMBER AS PROPERTY
23. The Use of the Terms Tree, Timber, Wood,
Forest and Woods. The Century Dictionary defines a
"tree" as "a perennial plant which grows from the ground
with a single permanent woody self-supporting trunk or
stem, ordinarily to a height of at least 25 or 30 feet." Per-
ennial plants with woody structure which do not have a
single well-developed trunk but several main stems or bran-
ches starting near the ground and which do not normally
reach a height of over 25 feet are called shrubs. The word
"wood," from which the adjective used above is derived,
is the name commonly applied to the hard fibrous substance
that composes the main portion of the trunk and branches
of a tree or shrub. 1 The word "timber" is generally used
in its original sense as designating standing trees that are
suitable for building houses and ships or for other construc-
tion purposes, or the portions of severed trees that are
adapted to such uses or that have been actually hewn or
sawn into coarse constructional material. -
In early English law the word "forest" was applied
exclusively to a tract of land composed entirely of a wooded
area or of both woods and pastures that was kept as a refuge
or breeding place for wild beasts and fowls, and within
which the sovereign or other political dignitary enjoyed
exclusive privileges for recreation and hunting. Such
tracts often bore distinctive names, were governed by
special laws and were supported at public expense. In
1. See Clay v. Postal Tel., Cable Co.. 70 Miss.[406, 411; 10 So. 658, which defined a
tree as a woody plant whose branches spring from and are supported upon a
trunk or body. ]|
Patterson v. McCausland, 3 Bland (Md.) 69, (Dec. 1830) which discusses wood
structure at length and strangely reaches the conclusion that the successive
rings of growth are not evidence of the age of a tree.
2. Leigh v. Heald, 1 B. & Ad. 622, 625. 20 E. C. L. 624. But see Strout v. Harper,
72 Me. 270, 273; Duren v. Gage, 72 Me. 118; Darling v. Clement, 69 Vt. 292,
37 Atl. 779; Hutchinson v. Ford, 62 Vt. 97, 18 Atl. 1044, Swift v. David 16
B. C. 275.
14
TREE, TIMBER, WOOD, FOREST AND WOODS 15
America the words forest, wood, woods, and also timber,
are all used to designate "a large and thick collection of
growing trees." l Such terms have been held to include
in meaning not only the trees but also the land upon which
the trees grow. 2
The word "woods" as used in statutes prescribing penal-
ties for firing the woods has been held to mean forest lands
in their natural state as distinguished from lands cleared
and enclosed for cultivation, 3 but an abandoned field cov-
ered with bushes and trees may fall within the purview of
such a statute. 4 However, a North Carolina Court re-
fused to extend such a statute so as to cover a field which
was still surrounded by an old fence and used as pasture
land even though it had grown up to bushes and resembled
a wood in its natural state. 5
24. The Special Significance of the Word Timber
as used in England and America. The word "timber"
as denoting growing trees yielding wood suitable for con-
struction purposes requires further consideration. Black-
stone says "timber also is part of the inheritance. Such are
oa x k, ash, elm, in all places; and in some particular counties,
by local custom, where other trees are generally used for
building, they are for that reason considered as timber;
and to cut down such trees, or top them, or do any other
act whereby the timber may decay, is waste." 6 The de-
termination of what trees were "timber" became so im-
portant a matter in England as to claim the attention of
the legislature. A parliamentary act of 1766 7 named oak,
beech, chestnut, walnut, ash, elm, cedar, fir, asp (aspen),
lime (basswood), sycamore and birch as timber trees. A
supplementary act of 1773 8 declared poplar, alder, larch,
1. See Century Dictionary, Godden v. Coonan, 107 Iowa 209, 77 N. W. 852; State
v. Howard, 72 Me. 459, 464; Donworth v. Sawyer, 94 Me. 243, 253, 47 Atl. 521.
2. People v. Long Island R. Co., 126 N. Y. App. Div. 477, 110 N. Y. Suppl. 512;
Boults v. Mitchell, 15 Pa. St. 371, 380; Whistler v. Paslow, Cro. Jac. 487,
79 Eng. Reprint 416.
But see Fletcher v. Alcona Tp., 72 Mich. 23, 40 N. W. 36.
3. Brunell v. Hopkins, 42 Iowa 429; Averitt v. Murrell, 49 N. C. 322. 323.
4. Hall v. Cranford, 50 N. C. 3, 5.
5. Achenbach v. Johnston. 84 N. C. 264.
6. Black. Com., Vol. 2, p. 281.
' 7. 6 Geo. 3, Chap, 48, Stat. at Large, Ruffhead Series, London, 1771. Vol. 10, pp.
260, 261.
8. 13 Geo. 3, Chap. 33, Stat. at Large, Ruffhead Series. London, 1774, Vol. 11, p. 701.
Cf. 35 Henry 8 (1543-4) ch. 17 repealed as to England in 7th and 8th Geo. 4 ch. 27.
16 TREES AND TIMBER AS PROPERTY
maple, and hornbeam to be timber trees and imposed the
penalties of Chapter 48, 6 Geo. Ill, for the destruction of
these trees after May 1, 1773.
Some of the early trespass statutes in the United States
named the timber species, but in America the courts have
generally been influenced by the view that land should
be devoted to its most profitable use, even though prepara-
tion for such use required the removal of trees suitable for
the manufacture of beams, planks, boards, etc., and a liber-
ization of the law against waste has resulted. It appears,
however, that this departure from the English rule has
been announced principally in cases which have involved
the relationship of tenancy. The law has been construed
more closely in accord with the English common law
rule when controversies have arisen between vendor and
purchaser, or in the administration of civil or criminal
statutes imposing penalties for the unlawful cutting of
trees. l Thus in a Maine case it was held that the construc-
tion to be placed upon the word "timber" as used in a con-
tract for the sale of standing timber was a matter of law
and could not be given to the jury for a determination of
the meaning of the word as a matter of fact, and that a
contract which gave the purchaser "the right to cut and
haul all the timber and bark," on certain land, "down to
as small as ten inches at the stump or butt of the trees,"
did not authorize the cutting and removal of trees fit
only for firewood. 2
In a prosecution for the unlawful cutting of timber in
violation of a criminal statute which imposed a penalty
ior the cutting and removal of live oak, red cedar and other
timber trees from the public lands of the United States
(Act of March 2, 1831, Sec. 2461, U. S. R. S.), the Federal
district court held that mesquite was not a timber tree
such as was contemplated by the statute and that the one
who was charged with the cutting of mesquite on public
lands of the United States was not liable to the penalties
1. Com. v. LaBar. 32 Pa. Sup. Ct. 228; Wilson v. State 17 Tex. App. 393; Fogo v.
Boyle 130 Wis. 154, 109 N. W. 977.
2. Nash v. Drisco, 51 Me. 417.; Baldwin v. Seeley, 160 Mich. 186, 125 N. W. 37;
Lbr. Co. v. Lyman, (Vt.) 94 Atl. 837 (all standing timber means that fit for
lumber only) See also Lbr. Co. v. Jeraigan, 185 Ala. 125. 64 So. 300 (Local
custom may limit to pine timber only.)
USE OF THE WORD TIMBER 17
of the act. In rendering this decision the judge said that
mesquite was "a brittle, knotty, skraggy, fibreless wood
that can only be used for firewood. It is used in the manu-
facture of no useful article." 1 However, when a later
case arose under the same section of the Revised Statutes
regarding the cutting of mesquite the Supreme Court of
Arizona questioned the propriety of the action of the judge
in Bustamente v. United States in assuming that mesquite
was as a matter of common knowledge not a timber tree,
declined to follow the decision in that case, quoted from the
definition of mesquite given in the Century Dictionary
which indicated that mesquite trees sometimes attained
a height of more than thirty feet and the wood was used
for various purposes, including foundations for buildings,
and held that whether the mesquite trees cut were of such
character as to come under section 2461 U. S. R. S. was a
question of fact which should be submitted to the jury. 2
Another court decided that this Federal Statute included
trees fit only for firewood and charcoal wood. 3 In an-
other prosecution under the same section it was held that
the term "timber" as used in the federal statute did not
embrace manufactured articles such as boards and shin-
gles. 4
As generally applied to standing trees in the United
States and Canada, the word "timber" signifies those trees
which are suitable for the construction of buildings, ships,
furniture, fences and tools, 5 but it does not include im-
mature trees of such timber species. 6 The courts will
give to the word the restricted application which was evi-
dently contemplated in a contract or conveyance 7 and
in particular cases it has been held that "timber" did not
1 . Bustamente v. United States, 42 Pac. Rep. 111,4 Ariz. 344.
2. United States v. Soto, 7 Ariz. 230, 64 Pac. 420.
3. United States v. Stores, et al., 14 Fed. Rep. 824. See Don worth v. Sawyer, 94
Me. 243, 47 Atl. 523; Wilson v. State, 17 Tex. App. 393; Liu Kong v. Keah-
ialoa, 8 Hawaii 511.
4. United States v. S^chuler, 6 McLean 28, 27 Fed. Gas. No. 16, 234, Decided June,
1853.
5. Alcutt v. Lakin, 33 N. H. 507, 66 Am. Dec. 739; Lord v. Meader, 73 N. H. 185.
60 Atl. 434; Corbett v. Harper, 5 Ont. 93, 97. See Com. v. Noxon, 121 Mass. 42
6. Corbett v. Harper, 5 Ont. 93; See Campbell v. Shields, 44 U. C. Q. B. 449.
7. Kollock v. Parcher, 52 Wis. 393, 9 N. W. 67; See Keeton v. Audsley, 19 Mo. 362.
61 Am. Dec. 560; Bryant v. United States, 105 Fed. 941, 45 C. C. A. 145.
18 TREES AND TIMBER AS PROPERTY
embrace lath, 1 shingles, 2 fence rails, 3 railroad ties 4 or
pulpwood; 5 that "saw timber" did not include telegraph
poles; 6 and that "lumber and timber," as used in a statute
giving a lien for work in manufacturing the same did not
include slabs. 7 However, a Maine statute regulating
the driving of "timber" in streams has been held to include
pulpwood. 8
25. The Legal Meaning of the words Stump-
age," "Lumber," "Firewood," etc. The word "stump-
age" as generally used denotes the value of the timber
standing in the tree, 9 but the term has sometimes, im-
properly, been used to mean the value of the trees after
they were cut down. 10 The word "wood" may not only
mean a forest, " or timber which has been cut down, 12
but it may include lumber and bark. 13 Although the
word "timber" has been given the restricted meaning of
material fit for building and allied purposes, 14 it has been
held that "standing wood" includes trees suitable for tim-
ber as well as those fit only for fuel. 15 However, where
the expression ''wood and Underwoods" was used in a lease
following the phrase "timber and other trees," it was held
to denote only such trees as were not fit for timber. 16
1. Babka v. Eldred, 47 Wis. 189, 2 N. W. 559.
2. Battis v. Hamlin, 22 Wis. 669.
3. McCauley v. State, 43 Tex. 374. But see Hunter v. Hunter, 17 Barb. (X. Y.) 25.
4. Johnson v. Truitt. 122 Ga. 327, 50 S. E. 135; Butler v. McPherson, 95 Miss. 635.
49 So. 257. Hubbard v. Burton, 75 Mo. 65. But ee Kollock V. Parcher, 52
Wis. 393, 9 X. W. 67.
5. Kaul v. Weed, 203 Pa. St. 586, 53 Atl. 489;
6. Elliott v. Bloyd. 40 Ore. 326, 67 Pac. 202. Cf. Kelly v. Robb, 58 Tex. 377.
7. Engi v. Hardell, 123 Wis. 407, 100 N. W. 1046.
8. Bearce v. Dudley, 88 Me. 410, 34 Atl. 260. See Slight v. Frix, 165 Ala. 230, 51
So. 601 ("Lumber" in pleading not fatal, "timber" Stat.)
9. Ciapusci v. Clark, 12 Calif. App. 44, 106 Pac. 436; Ray v. Schmidt & Co., 7 Ga.
App. 380, 66 S. E. 1035; Stanley v. Livingston, 9 Ga. App. 523, 71 S. E. 878;
Gordon v. Grand Rapids Etc. R. Co., 103 Mich. 379, 61 N. \V. 549; Xitz v.
Bolton, 71 Mich. 388, 39 N. W. 15; Skeels v. Starrett, 57 Mich. 350, 24 N. W.
98; U. S. v. Mills, 9 Fed. 684, 687; Baker v. Whiting, 2 Fed. Cas. Xo. 787, 3
Summ. 475, 484.
10. Blood v. Drummond, 67 Me. 476; Ayres v. Hubbard, 71 Mich. 594, 40 X. W.
10: Single v. Schneider, 30 Wis. 570, 574.
11. State v. Howard, 72 Me. 459.
12. Darling v. Clement, 69 Vt. 292, 37 Atl. 779.
13. Hutchinson v. Ford. 62 Vt. 97, 18 Atl. 1044.
14. Gulf Yellow Pine Lbr. Co. v. Monk, 159 Ala. 318, 49 So. 248. Cf. Webb. v.
Xational Fire Ins. Co. 2 Sandf. (X. Y.) 497, 504. Cf. U. S. v. Schuler, 27
Fed. Cas. Xo. 16234, 6 McLean, 28, 37.
] 5. Strout v. Harper, 72 Me. 270.
16 Leigh v. Heald, 1 B. & Ad. 622. 20 E. C. L. 624.
MEANING OF STUMPAGE, LUMBER, ETC 19
The words "refuse wood" in a statute were construed to
include "shingle sawdust" and "shingle shavings," but
not the fuel which had been prepared from trees cut for
fuel, 1 and "firewood" as used in a statute regulating the
measurement of wood for sale was held not to include
chips and trimmings of lumber which were sold by the load
instead of by the cord. - It has been held that an allow-
ance for roads was not included in a devise of woodland, :!
and woodland has been judicially distinguished from
prairie land. 4 "Woodleave" has been defined as a license
to take wood. "'
It has been held that contracts for the cutting of dead
timber include trees which have been so badly injured that
a prudent owner would cut them to prevent further loss. 6
A sawlog has been defined as a part of the trunk of a
tree stripped of its branches and cut into suitable lengths
for the manufacture of lumber. 7 It has been held that a
sale of logs upon the basis of a scale did not include a mast
upon the same scale bill. 8
Lumber has been defined by the courts as timber sawed
or split for use in building. 9 Some courts have held that
shingles are lumber 10 , and others that they are not. 11
Pieces of cedar four feet long, rived for shingle spurpoes,
have been held subject to a lien for the cutting and hauling
of lumber. 12 In some states lumber is defined very com-
1. State v. Howard, 72 Me. 459, 4(15.
2. Duren v. (iaf?e. 72 Me. IIS.
3. Blaine v. Chambers, 1 Serf?. & K. (Pa.) I till.
4. Buxtun v. St. Louis, etc. K. Co. f>K Mo. 55.
5. Osborne v. O'Reilly. 12 V .1. Kq. 4(17, 9 Atl. 20H.
6. I'. S. v. Boimess, 125 Fed. Kep. 4S5; I'. S. v. Pine River Logging X Impr. Co.,
SO Fed. 907, 1)15.
7. Hardwood Co. v. R. R. Co.. (1 Ala. App. (i2'., <'>('> So. 9 lit. Slate v. Addition,
121 X. C. 53S, 27 S. K. 9SS. Cf. in re Ooseli, 121 Fed. (104. Cinrhmati Kte.
R. Co. v. Dickey, 30 Ohio 1(1 (Sticks refers to square timber rather than logs.:
S. H.iynes v. 1 1 ay ward, 40 Me. 145.
9. Craze, v. Land Co., 155 Ala. 4:51, 1(1 So. 179: Ward v. Kadel. 3S Ark. 174, ISO;
McKinnoy v. Matthews, l(i(i X. C. 57(1. 5SO. S2 S. K. 103(1: Dutch v. Anderson,
75 Ind, 35; Williams v. Stevens Point Lbr. Co.. 72 \Vis. 4S7, 40 X. W. 154;
Allen v. Red ward, 10 Hawaii 159: Townsend v. Ha
Out. L. 521, 27 Out. L. 479. 2(1 Out. L. 291. 4 I )<
1105. 21 Out. \V. R. <)(il.
10. (iross v. Kiden. 5:5 \Vis. 543, 1 1 X. W. 9: Lbr. C >. v. R<
11. Dexter Horton & Co. v. Sparkman. 2 Wash. 1(15. 25 I
12. Sands v. Sands, 74 Me. 239. Cf. Bondur v. LeHour
ik. 49 Can. S. Ct. 394. 2S
in. L. R. 91. 3 Out. W. X.
ladlock v.
Shumway. 11 Wash. 090; Hurlburt v. Lake Shore R.. 2 Int. St. Com. 122.
20 TREES AND TIMBER AS PROPERTY
prehensively by statutes regulating liens. x The phrase
"wood and manufactures thereof," as occurring in tariff
schedules, has also received judicial interpretation. 2
Crude turpentine which has exuded from trees cut or
boxed for turpentining purposes is personalty which be-
longs to the one who lawfully prepared the trees, 3 and
conversion will lie for the unlawful taking of such personal-
ity. 4
26. Growing Trees are Real Property. Standing
or growing trees, as fructus naturales, have always been
held to form a part of the realty 5 and under a State statute
regarding the recording and filing of real and chattel mort-
gages, an interest in timber must be considered to be real es-
1. Ryan v. Guilfoil, 13 Wash. 373, 43 Pac. 351; Hadlock v. Sbumway, 11 Wash.
690, 40 Pac. 346; Baxter v. Kennedy, 35 X. Brunsw. 179.
2. In general. Hartranft v. Wiegmann, 121 U. S. 609, 7 S. Ct. 1240, 30 L. Ed. 1012.
Lumber. Dudley v. U. S., 74 Fed. 548, 19 Sup. Ct. Rep. 801.
Holly whips. Davies v. U. S., 107 Fed. 266.
Picture frames. Hensal v. U. S., 99 Fed. 722; U. S. v. Gunther, 71 Fed. 499, 18-
C. C. A. 219.
Dry wood powder. Goldman v. U. S., 87 Fed. 193. (Not wood-pulp.)
Whipstocks, etc. In re Foppes v. U. S., 72 Fed. 45; In re Foppes, 56 Fed. 817.
Bamboo blinds, etc. U. S. v. China, etc. Trading Co., 71 Fed. 864, 18 C. C. A. 335
(Revs'g. 66 Fed. 733.)
Furniture. Richard v. Hedden, 42 Fed. 672.
Gun blocks. U. S. v. Windmuller, 42 Fed. 292.
Shingles. Stockwell v. U. S., 23 Fed. Cas. No. 13, 466, 3 Cliff. 284. Cf. Lueders
v. U. S., 131 Fed. 655; Sill v. Lawrence, 22 Fed. Cas. No. 12, 850, 1 Blatch, 605.
3. Lewis v. McNatt, 65 N. C. 63 (1871) 1 Gray Cas. 638; Branch v. Morrison, 5a
N. C. 16, 69 Am. Dec. 770, 5 Jones L, 16, 6 Id. 16.
4. Melrose Mfg. Co. v. Kennedy, 59 Fla, 312, 51 So. 595; Branch v. Morrison, 5O-
N. C. 16; Quitman Naval Stores Co. v. Conway, 58 So. 840.
5. Ala. Gibbs v. Wright, (Ala. App.) 57 So. 258; Milliken v. Faulk, 111 Ala. 658,
660, 20 So. 594; Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776.
Ark. Lbr. Co. v. Development Co. 176 S. W. 129. Starnes v. Boyd 142 S. W.
1143.
Fla. Grifflng Bros. Co. v. Winfleld, 53 Fla. 589, 43 So. 687.
Ga. Morgan v. Perkins, 94 Ga. 353, 21 S. E. 574; Moore v. Vickers, 126 Ga.
42. 54 S. E. 814; Balkcom v. Empire Lumber Co., 91 Ga. 651, 655, 17
S. E. 102O, 44 Am. St. Rep. 58; Goody v. Gress Lumber Co., 82 Ga. 793,
10 S. E. 218.
111. Osborn v. Rabe, 67 111. 108; Adams v. Smith, 1 111. 283.
Ind. Armstrong v. Lawson, 73 Ind. 498.
Me. Emerson v. Shores, 95 Me. 237, 49 Atl. 1051, 85 Am. St. Rep. 404.
Md. But see Whittington v. Hall, 116 Md. 467, 82 Atl. 163.
Miss. Harrell v. Miller, 35 Miss, 700, 72 Am. Dec. 154.
N.H. Howe v. Batchelder, 49 N. H. 204; Kingsley v. Holbrook, 45 N. H. 313,
86 Am. Dec. 173; Olmstead v. Niles, 7 N. H. 522; Putney v. Day, 6-
N. H. 430, 25 Am. Dec. 470.
N. J. Slocum v. Seymour, 36 N. J. L. 138, 13 Am. Rep. 432.
N. Y. Vorebeck v. Roe, 50 Barb. 302, 306; Goodyear v. Vosburgh, 39 How. Pr>
377; Green v. Armstrong, 1 Den. 550; Mclntyre v. Barnard, 1 Sandf-
Ch. 52.
N. C. Mizell v. Burnett, 49 N. C. 249, 69 Am. Dec. 744.
(Foot note 5 continued on next page)
TREES AS REALTY 21
tate. 1 Trees cannot be considered emblements but are
a part of the inheritance. 2 A sale of land passes the title
to the trees standing upon the land, 3 but they may be
reserved by deed. 4 The term "tree" without explana-
tion implies a standing tree and therefore it has been said
that it was not actionable slander to say "A stole my bee
tree," since a standing tree, as realty, was not subject to
larceny. 5 However, it has been held that timber within
the New York State forest lands is subject to larceny, 6
and in several states the wrongful taking of standing tim-
ber has been declared larceny by statute. 7
(Foot note 5 concluded from preceding page)
Ohio. Hirth v. Graham, 5O Ohio St. 57, 33 N. E. 90, 40 Am. St Rep. 641, 19
L. R. A. 721.
Pa. Miller v. Zufall, 113 Pa. St. 317, 6 Atl. 350; Bowers v. Bowers, 95 Pa. St.
477 ; Pattison's Appeal.61 Pa. St. 294, 100 Am. Dec. 637.
Tenn. Knox v. Haralson. 2 Tenn. Ch. 232.
Vt. Buck v. Pickwell, 27 Vt. 157.
Wis. Williams v. Jones, 131 Wis. 361, 111 N. W. 505; Lillie v. Dunbar, 62 Wis.
198, 22 N. W. 467; Daniels v. Bailey, 43 Wis. 566; Strasson v. Mont-
gomery, 32 Wis. 52.
U. S. Marthinson v. King, 150 Fed. 48, 82 C. C. A. 360.
Eng. Scorell v. Boxall, 1 Y. & J. 396.
Growing fruit trees are considered as part of the land.
Griffing Bros. Co. v. Winfleld, 53 Fla. 589, 43 So. 687; Adams v. Smith,
' 1 Breese (111.) 221, (1828).
1. Williams v. Hyde, 98 Mich. 152, 57 N. W. 98.
2. Slocum v. Seymour, 36 N. J. L. 138, 13 Am. Rep. 432.
3. Cockrill v. Downey, 4 Kans, 426.
4. McClintock's Appeal, 71 Pa. St. 365; Heflin v. Bingham, 56 Ala. 506, 28 Am.
Rep. 776; Goodwin v. Hubbard, 47 Me. 595; Howard v. Lincoln, 13 Me. 122;
See also, Putnam v. Tuttle, 10 Gray (Mass.) 48.
5. Idol v. Jones, 13 N. C. 162, 164, (2 Dev. L.).
6. People v. Gaylord, 139 N. Y. App. Div. 814, 124 N. Y. Suppl. 517; Pashley v.
Bennett, 108 N. Y. App. Div. 102, 95 N. Y. Suppl. 384.
The unlawful taking of turpentine which has flowed into boxes in trees may be
larceny.
State v. King 98 N. C. 648 (1887); State v. Moore 33 N. C. (11 Ired.) 70.
The same should be true of other products of trees. See distinction between
objects physically and constructively annexed in Jackson v. State 11 Ohio St.
104; but compare U. S. v. Wagner 1 Cranch C. C. 314, Fed. Gas. No. 16,630;
U. S. v. Smith 1 Cranch C. C. 475, Fed. Gas. No. 16,325.
7. Fla. Compiled Laws, 1914, Sec. 3295, (Act June 3, 1907).
Kan. Gen. St. 1909 Sec. 2577.
Md. Cf. Laws 1813, Ch. 162; Laws 1826, Ch. 260, (Both given in Laws of
Md. 1692-1839, Dorsey, Vol. 1. pp. 622 and 918). Pub. St. 1904 Sec.
265 (willows).
Minn. Rev. Laws, 1905, Sec. 5084.
Mo. Rev. Stat. 1889, Sec. 3603-3606. Rev. Stat. 1909 Sec. 4547.
Neb. Rev. Stat., 1913, Sec. 8683.
N. C. Cf. Code of 1883, Sec 1070, (Laws of 1866, Ch. 60).
Wash. Code of 1910, Rem. & Bal. Sec. 23 )1.
22 TREES AND TIMBER AS- PROPERTY
27. Severed Trees are Personal Property. Upon
severance from the land, either actual, l as by physical
detachment, or constructive, 2 as by valid sale and con-
veyance, trees become personalty. They are then subject
to all the rules of law applicable to personal property and
do not pass with a subsequent conveyance of the land. 3
However, it has been held that under a statute making
timber an immovable even when separated in ownership
from the land upon which it stands, 4 trees will retain
1. Ala. Carpenter v. Lewis, 6 Ala. 682.
Ark. Brock v. Smith, 14 Ark. 431.
Cal. Kimball v. Lohmas, 31 Cal. 154.
Fla. Jenkins v. Lykes, 19 Fla. 148, 4.5 Am. Rep. 19.
m. . Cf. Brown v. Throckmortou, 11 111. 529, Wincher v. Shr -wsbury, 3
111. 283, 35 Am. Dec. 108.
Iowa, Robertson v. Phillips, 3 Greene 221.
La. Woodruff v. Roberts, 4 La. Ann. 127; But see, Frank v. Magee, 49 La.
Ann. 1250.
Me. Goodwin v. Hubbard. 47 Me. 535; Whidden v. Seelye. 40 Me. 247, 63
Am. Dec. 661; Moody v. Whitney, 34 Me. 563; Richardson v. Vork,
14 Me. 216.
Md. Cranch v. Smith, 1 Md. Ch, 401.
Mass. Giles v. Simonds, 15 Gray 441, 77 Am. Dec. 373; Douglas v. Shumway,
13 Gray 498; Clark v. Holden, 7 Gray 8, 66 Am. Dec. 450; See
Fletcher v. Livingston, 153 Mass. 388.
Mich. Macomber v. Detroit etc. R. Co., 108 Mich. 491, 66 X.W. 376, 62 Am. St.
Rep. 713, 32 L. R. A. 102; White v. King, 87 Mich. 107, 49 X. W. 518.
Minn. Berthold v. Holman, 12 Minn. 335. 93 Am. Dec. 233.
Mo. Kelly v. Vandiver, 75 Mo. App. 435; Keeton v. Audsley, 19 Mo. 362,
61 Am. Dec. 560.
Xev. Peck v. Brown, 5 Nov. 81.
X. H. Kingsley v. Holbrook, 45 X. H. 313, 86 Am. Dec. 173; Plumer v. Pres-
cott, 43 N. H. 277.
X. J. Porch v. Fries, 18 N. J. Eq. 204.
X. Y. Bennett v. Scutt, 18 Barb. 347; Pierrepont v. Barnard, 6 X. Y. 279 (Re-
versing 5 Barb. 364) ; W T arren v. Leland, 2 Barb. 613.
X. C. Wall v. Williams, 91 X. C. 477.
. Ore. Schmidt v. Vogt, 8 Ore. 344.
Pa. Brewer v. Fleming, 51 Pa. St. 102; Altemose v. Hufsmith, 45 Pa. St. 121:
But see, Rogers v. Gilinger, 30 Pa. St. 188, 72 Am. Dec. 694; and
Leidy v. Proctor, 97 Pa. St. 492.
Tenn. Xew York etc. Iron Co. v. Green Co. Iron Co., 11 Heisk. 434.
Vt. Yale v. Seely, 15 Vt. 221.
Wis. Hicks v. Smith, 77 Wis. 146, 46 X. W. 133; Golden v. Clock, 57 Wis. 118,
15 N. W. 12, 46 Am. Rep. 32: Paine v. W T hite, 21 Wis. 423; State v.
School etc. Lands, 19 Wjs. 237.
See, 40 Cent. Dig., tit. "Property," Sec. 8.
2. Kingsley v. Holbrook, 45 X. H. 313. 86 Am. Dec. 173; Warren v. Leland. 2 Barb.
(N. Y.) 613: Asher Lumber Co. v. Cornett. 58 S. W. 438, 22 Ky. L. Rep. 569,
56 L. R. A. 672; For other cases see 32 Cyc. 674, note 66.
3. Woodruff v. Roberts, 4 La. Ann. 127: Berthold v. Holman, 12 Minn. 335, 93 Am.
Dec. 233; Peck v. Brown, 5 Xev. 1: Schmidt v. Voght, 8 Ore. 344: But see,
Byasse v. Reese, 4 Mete. (Ky.) 372, 83 Am. Dec. 481; Lockeshan v. Miller,
16 Ky. L. Rep. 55; Musser v. McRae, 44 Mum. 343. 46 X. W. 673.
4. Smith v. Huie-Hodge Lumber Co., 123 La. 959, 49 So. 655. Wolff Rev. L. 1908
Vol. 3, p. 723.
TREES SUBJECT TO TAXATION AND EXECUTION 23
their immovability, even after sale, until they are cut
down. ]
28. Trees as Subject to Taxation and Execution.
Trees constructively severed by a timber lease giving merely
the right to cut and carry away the trees have been held
to be subject to execution. 2 But a mere license to enter
and cut timber on another's land has been held to par-
take of the nature of a personal trust and not to be subject
to levy and sale under execution. 3
Ordinarily trees and their fruits cannot be seized and
sold as chattels until severed from the soil. 4 Timber
felled after a judgment lien attached to land passes with
the land at an execution sale. 5 Easements and other
special rights and interests in land are taxable only when
made so by statute. 6 Thus it has been held that a de-
mise giving a lessee the right to enter, box trees, and make
turpentine, did not create a taxable interest in the land, 7
even under a very inclusive statute regarding taxation; 8
and the same was held as to a right to cut timber and erect
buildings. 9 However, under a Minnesota statute a right
to cut trees from non-taxable railroad lands was consid-
ered a taxable interest. 10 Prior to physical severance
from the soil trees are ordinarily taxable as realty; 11 but
if through a valid sale trees have been constructively sev-
ered, they may be assessed to the true owner while still
1. Morgan v. O'Bannon, 125 La. 367, 51 So. 293.
2. Caldwell v. Fifield, 24 N. J. L. 150; Cf. Sparrow v. Pond, 49 Minn. 412, 52 N. W.
36, 32 Am. St. Rep. 571, 16 L. R. A. 103, holding blackberries on bushes not
subject to execution as personalty; See 17 Cyc. 942, Note 90, 1291, Note 41.
3. Potter v. Everett, 40 Mo. App. 152; Cf. Adams v. Smith, 1 Breese (111.) 283;
Rogers v. Elliott, 59 N. H. 201, 47 Am. Rep. 192.
4. State v. Gemmill, 1 Houst. (Del. 1855) 9, 16; Osborne & Rabe 67 111. 108 (1873,
Nursery trees); Bank of Lansingburgh v. Crary, 1 Barb. (N. Y.) 542 (1847).
But see Battennan v. Albright, 122 N. Y. 484 (1890 nursery trees); State v.
Fowler, 88 Md. 601 (1898) and Purner v. Piercy, 40 Md. 212. Cf. Late v. Mc-
Lean. 2 Nova S. Dec. 69 (1870).
5. Frank v. Magee, 49 La. Ann. 1250, 22 So. 739; Leidy v. Proctor, 97 Pa. St. 486;
Duff v. Bindley, 16 Fed. 178.
6. DeWitt v. Hays, 2 Cal. 463, 56 Am. Dec. 352; Boreel v. New York, 2 Sandf.
(N. Y.) 552; Willis v. Com., 97 Va. 667, 34 S. E. 460.
7. Hancock v. Imperial Naval Stores Co. 93 Miss. 822, 47 So. 177.
8. Ashe Carson Co. v. State, 138 Ala. 108, 35 So. 38.
9. Clove Springs Iron Works v. Cone, 56 Vt. 603.
10. Pine County v. Toyer, 56 Minn. 288, 57 N. W. 796.
11. Wilson v. Cass County, 69 Iowa 147, 28 N. W. 483: Williams v. Triche, 107 La.
92, 31 So. 926; Palfrey v. Connely, 106 La. 699, 31 So. 148; Fletcher v. Alcona
Tp., 72 Mich. 18, 40 N. W. 36.
Cf. Cottle v. Spitzer, 65 Cal. 456 (1884.)
24 TREES AND TIMBER AS PROPERTY
standing on the land of another. 1 In many States there
are statutes regulating the taxation of standing timber that
is owned separately from the land. 2
Ordinarily, when land is sold because of the non-pay-
ment of taxes, the former owner of the land is entitled to
the possession and enjoyment of the land until the period
allowed for redemption has expired. Accordingly if the
purchaser at the tax sale enters during such period without
the consent of the owner and cuts timber, he is liable for
trespass. 3 However, under some statutes the purchaser
at the tax sale is entitled to possession until the property
is redeemed, and where the purchaser has actual possession
no action for trespass will lie in favor of the owner, 4 and
it has been held that a redemption, or an offer to redeem,
must be shown to justify an injunction restraining the tax
purchaser from cutting. 5
And although a court of equity may restrain an owner
from the cutting of timber to such an extent as to injure
the lien of the one who has purchased at a tax sale, a
any cutting which does not involve a stripping of the
land may be done by the owner during the redemption
period, and the purchaser cannot maintain replevin for
timber thus removed. 7
When the purchaser obtains a deed after the expiration
of the period for redemption, he obtains title not only to
timber then standing, but also to that cut subsequent to
1. Williams v. Triche. 107 La. 92, 31 So. 926; Globe Lbr. Co. v. Lockett, 106 La.
414, 30 So. 902; Fox v. Pearl River Lbr. Co. 80 Miss. 1, 31 So. 583.
2. Ark. Castle's Suppl. of 1911 to Kirby's Digest of 1904, Sec. 6905 (Act Apr. 7
1905, S. L. No. 146, p. 36l); See also sec. 6905b-6905e (Act May 6,
1905, S. L. No. 303, p. 738. Tax Sales).
Va. Suppl. of 1910 to Pollard Code of 1904, p. 82, Sec. 470.
Wash. Code & Stat. 1910, Rem. & Bal. Sec. 9095-96.
W.Va. Code 1906, Sec. 723; Code 1913 Sec. 923.
3. Sullivan v. Davis, 29 Kan. 28; Brewer v. Ireland, 67 N. J. Law 31, 50 Atl. 437;
Millard v. Breckwoldt, 100 N. Y. App. Div. 44, 90 N. Y. Suppl. 890; Shale-
miller v. McCarty, 55 Pa. St. 186; Wing v. Hall, 47 Vt. 182; Paine v. Libby, 21
Wis. 425.
4. Cromelin v. Brink, 29 Pa. St. 522.
6. Wright v. King, 18 Wis. 45. See also Busch v. Nester, 62 Mich, 381, 28 N. W.
911; Eureka Lumber Co. v. Terrell (Miss. 1909), 48 So. 628; 45 Cent. Dig. tit.
Taxation, Sec. 1462.
6. Millard v. Breckwoldt, 100 N. Y. App. Div. 44, 90 N. Y. Suppl. 890.
7. Woodland Oil Co. v. Shoup, 107 Pa. St. 293; Shalemiller v. McCarty, 55 Pa. St.
186; Gaults Appeal, 33 Pa. St. 94; Woodland Oil Co. v. Lawrence, 1 Pennyp.
(Pa.) 480: Lightner v. Mooney, 10 Watts (Pa.) 407: Lacy v. Johnson, 58 Wis.
414, 17 N. W. 246; Smith v. Sherry. 54 Wis. 114, 11 N. W. 465. But see Gall-
aher v. Head, 108 Iowa 588, 79 N.W. 387, and McKean v. Gammon, 33 Me. 187.
THE TAXATION OF TIMBER PRODUCTS 25
the sale but not removed before the title was perfected. *
However, he can maintain no action for timber removed
before the tax sale by either the owner or a trespasser. 2
29. The Taxation of Logs and Other Timber
Products under Statute. In a number of states there
are statutes regulating the taxation of sawlogs and lumber. 3
These statutes ordinarily state that such property shall be
taxable in the political subdivision of the state in which
it shall be on a certain fixed day of the year, unless it be
in transit, in which case under provisions of the law it is
taxable either at the point of shipment or at the place of
destination. 4 The franchise of a boom company to re-
quire a toll on logs has been held to constitute a taxable
interest. 5
1. Nicklase v. Morrison, 56 Ark. 553, 20 S. W. 414; See Gates v. Lindey, 104 Cal.
451, 38 Pac. 311.
2. Taylor v. Frederick, McGloin (La.) 380; Hickey v. Rutledge 136 Mich. 128, 98
N. W. 974.
3. Minn. General Stat., 1913, Tiffany, Sec. 2000, Cf. Sec. 2184.
Miss. Code 1906, Ch. 45, Sec. 9, p. 179.
N. H. Public Stat. 1901, Ch. 56, Sec. 16, p. 207; Amendment, Suppl. to Stat.
1913, p 105; Cf. Acts July 4, 1860, S. L. Ch. 2351; Act Aug. 16,
1878, S. L. Ch. 48.
Wis. Statutes, 1913, Sec. 1040, Paragraph 4.
4. Me. See Fanningdale v. Berlin Mills Co., 45 Atl. 39; Bradley v. Penobscot
Chemical Fibre Co. 104 Me. 276.
Mich. See Mitchell et al v. Lake Township, 85 N. W. 865.
N. H. See Berlin Mills Co. v. Wen th worth's Location, 60 N. H. 156.
5. Chehalis Boom Co. v. Chehalis Co., 63 Pac. 1123 (Wash.) But see State v. A,
Wilbert's Sons Lbr. Co., 51 La. Ann. 1223, 26 So. 106; State v. Barnes, 35 S. E,
605 (Lumber Dealer). N. C. case.
CHAPTER IV
LIABILITY OF TENANT AS TO WASTE
30. The Definition of Waste. Uner 'the English
common law as developed at the time of the formation of
the American Union an obligation rested upon every tenant
of land to treat the premises in such manner that no harm
should be done them and that the estate should revert to
those having an underlying interest, undeteri orated by any
wilful or negligent act. Any violation of this obligation
by a tenant was considered an act of waste. * Legal waste
has been defined as any spoil or destruction, done or per-
mitted, to lands, houses, gardens, trees, or other corporeal
hereditaments, by the tenant thereof, to the prejudice of
the heir, or of the reversioner or the remainderman. 2 An
American court in stating the English common law doctrine
of waste has said that any act or omission of duty by a
tenant of land which does a permanent and substantial
injury to the freehold or inheritance is waste. 3
31. The Development of the Doctrine of Waste.
In the early development of the common law the only
persons against whom the legal action called waste could
be successfully maintained were the tenants of estates
created by act of law. 4 It was held that where an estate
was created by act of law there was an obligation assumed
by the law to insure that the estate should finally be turned
over to the one entitled to the fee undiminished as a result
of the intervening estate which the law had created. 5
Unless restrained by particular words from committing
waste, tenants for life, for years or at will were not liable
1. 40 Cyc. Law and Proc., Ed. 1904, p. 498. Ain. and Eng. Ency, of Law, 2d Ed..
Vol. 30, p. 236.
2. Black's Law Dictionary.
3. King v. Miller, 99 N. C. 593, 6 S. E. 660.
4. 40 Cyc. 512. For contrary view see Land. & Ten., Tiff. 1910, p. 724.
5. Am. & Eng. Ency, of Law, 2d Ed. Vol. 30, p. 259.
26
DEVELOPMENT OF DOCTRINE OF WASTE 27
for waste; upon the theory, evidently, that in all estates
created by conveyance or deed it was the duty of the party
creating the estate to provide such protection for the re-
version or remainder as was necessary. It was found ad-
visable to widen the scope of the action of waste as a pro-
tection against the destruction or diminution of landed
estates by persons occupying them temporarily under wills,
leases, etc. Accordingly, the Statutes of Marlbridge 1 and
Gloucester 2 extended the common law action for waste to
tenancies for life and for years, but these statutes did not
specifically include tenancies at will.
32. Waste under Tenancies of Dower and Cur-
tesy and for Definite Periods. Tenancy of real estate
by either the right of dower or that of curtesy is essentially
a life estate. The incidents of such an estate are substan-
tially the same as those enjoyed by a life tenant and the
general rules of liability for waste applicable to a life es-
tate will be applied in legal controversies arising in con-
nection with the use of realty by one claiming either by
dower or curtesy. Furthermore, the rules of law as to
waste which are enforced against a life tenant are like-
wise applicable to a tenant for years or from year to year.
33. Waste by Tenants at Will. In addition to the
fact that tenancies at will were not covered by the
Statutes of Ma/rlbridge and of Gloucester, the courts
considered that the other legal remedies available for a
landlord, who could at any time enter and thus end the
tenancy at will, were sufficient. 3 Although this theo-
retical distinction between a tenancy at will and the
other forms of tenancy has been generally observed in Eng-
land, and although authorities have announced this dis-
tinction as an American rule of law, 4 it appears that Ameri-
can courts have held tenants at will to be guilty of waste. 5
1. St. 52 Henry III, Chap. 23, Sec. 2, A. D. 1287.
2. St. 6 Edw. I, Chap. 5, A. D. 1278.
3. Eng. & Am. Ency. of Law, 2d Ed. Vol. 30, p. 269, Note 6.
4. 40 Cyc. 512.
5. In the cutting of timber. Suffern v. Townsend, 9 Johns, (N. Y.) 35; Phillips v.
Covert, 7 Johns (N. Y.) 1; Wright v. Roberts, 22 Wis. 161.
In destroying fruit trees. Bellows v. McGinnis, 17 Ind. 64; Cf. Freeman v. Head-
ley, 33 N. J. L. 523; and Chalmers v. Smith, 152 Mass. 561.
Contra. Coale v. Hannibal, etc. R. Co., 60 Mo. 227; Lothrop v. Thayer, 138
Mass. 466. However, both of these cases refer to permissive waste.
28 LIABILITY OF TENANT AS TO WASTE
34. Commissive, Permissive and Equitable Waste.
Different forms of waste were recognized by the common
law. Any positive action on the part of the tenant which
resulted in a permanent and substantial injury to the in-
heritance constituted what was known as voluntary waste.
Any neglect, or omission, of a legal duty which resulted
in such injury was known as permissive waste. Thus if
a tenant tore down a building or cut down a growing tim-
ber tree he would be held liable for voluntary waste while
if he suffered a building to become ruinous or allowed
young timber trees to be destroyed through neglect he
might be held liable for permissive waste. There was
still another form of waste for which the common law
afforded no adequate remedy but of which cognizance was
taken in the equity court. This was called "equitable
waste" and arose when a tenant did something which was
not inconsistent with his legal rights, but which, nevertheless,
was not such as a prudent man would do in the management
of his own property and which actually resulted in an in-
jury to the inheritance. It has been said that the doctrine
of equitable waste has not been developed in the United
States. l However, the doctrine has been defined in Ameri-
can cases. 2
There appears to have been much doubt and conflict of
opinion as to whether the Statutes of Marlbridge and of
Gloucester comprehended permissive as well as voluntary,
or commissive, waste. This uncertainty as to the law
has found expression in conflicting American opinions. 3
The weight of opinion seems to be that in the United States
1. Landlord and Tenant. Tiffany, Ed. 1910, p. 721.
2. Belt. v. Simklns, 113 Ga. 894; Clement v. Wheeler, 25 N. H. 361; Gannon v.
Peterson, 193 111. 372; Chapman v. Epperson Circled Heading Co., 101 111. App.
164.
3. Following hold tenant liable for permissive waste. Moore v. Townshend, 33
N. J. L. 284; Cargill v. Sewall, 19 Me. 288; White v. Wagner, 4 Hair. & J. (Md.)
373, 7 Am. Dec. 674; Stevens v. Rose, 69 Mich. 259, 37 N. W. 305; Newbold v.
Brown, 44 N. J. L. 266; Sampson v. Grogan, 21 R. I. 174, 42 Atl. 712, 44 L. R. A
711; Parrott v. Barney, 18 Fed. Cas. No. 10,773a, Deady 405.
Contra Danziger v. Silberthau, 18 N. Y. Suppl. 350, 21 N. Y. Civ. Proc. 283;
Shult v. Barker, 12 Serg. & R. (Pa.) 272; Smith v. Follansbee, 13 Me. 273; Rich-
ards v. Tarbert, 3 Houst. (Del.) 172; Smith v. Mattingly, 96 Ky. 228, 28 S. W.
203, 16 Ky. L. Rep. 418.
WASTE BY COTENANTS 29
tenants for life 1 and for years 2 are liable for permissive
waste, but tenants at will are not liable for permissive
waste 3 on the ground largely that the tenancy is too un-
certain for the tenant to assume obligations as to repair,
etc. 4 Thus upon the theory that the Statutes of Marl-
bridge and Gloucester form a part of the common law in
the United States, except as modified by American stat-
utes, 5 American courts have held that, in the absence
of a special agreement to the contrary, a tenant is ordinarily
responsible for waste committed on the premises of which
he has lawful possession, by whomever committed, unless
such waste is the result of an act of God, of a public enemy ,
or of the person holding the unltimate fee. 6
35. Waste under a Joint Tenancy or a Tenancy
in Common. Under the early common law a tenant in
common or joint tenant 7 could not be held for waste, but the
statute of Westminster II 8 gave to every tenant in common
the right to bring an action for waste against his co-tenant. 9
To remove any doubt as to the liability of co-tenants for
waste statutes have been enacted in many American states
under which relief against waste is given a tenant in
common. 10 In some jurisdictions the common law as modi-
1. Miller v. Shields, 55 Ind. 71; Stevens v. Rose, 69 Mich. 259; Wilson v. Edmonds,
24 N. H. 517; Schulting v. Schulting, 41 N. J. Eq. 130; Moore v. Town-
shend, 33 N. J. L. 284; Harvey v. Harvey, 41 Vt. 373. Contra Richards v.
Torbert, 3 Houst. (Del.) 172.
2. White v. Wagner, 4 Harr & J. (Md.) 373; Moore v. Townshend, 33 N. J. L. 284;
Newbold v. Brown, 44 N. J. L. 266; Suydam v. Jackson, 54 N. Y. 450; Long v.
Fitzsimmons, 1 W. & S. (Pa.) 530.
3. Lothrop v. Thayer, 138 Mass. 466. Harnett v. Maitland, 16 M. & W. 257.
4. Moore v. Townshend, 33 N. J. L. 284.
5. Parker v. Chanbliss, 12 Ga. 235; Sackett v. Sackett, 8 Pick. 309; Chase v. Hazel-
ton, 7 N. H. 171; Sherrill v. Conner, 107 N. C. 543, 12 S. E. 588; Dozier v.
Gregory, 46 N. C. 100; Parrott v. Barney, 18 Fed. Cas. No. 10773a, Deady 405.
But see. Stetson v. Day, 51 Me. 434; Smith v. Follansbee, 13 Me. 273; Moss
Point Lumber Co. v. Harrison County, 89 Miss. 448, 42 So. 290, 293 ; Hamden
v. Rice, 24 Conn. 350.
6. Miller v. Shields, 55 Ind. 71; Babb v. Perley, 1 Me. 6; Neel v. Neel, 19 Pa. St. 323;
Real Prop. Tiff., Sec. 254, N. 234-5.
7. Nelson v. Clay, 7 J. J. Marsh (Ky.) 138, 23 Am. Dec. 387; 23 Cyc. 492.
8. 13 Edw. I, Chap. 22, A. D. 1285.
9. Shiels v. Stark, 14 Ga. 429; Nelson v. Clay, supra.
10. Cal. McCord v. Oakland Quicksilver Min. Co., 64 Gal. 134; 49 Am. Rep. 686.
Ga. Shiels v. Stark, 14 Ga. 429.
111. Murray v. Haverty, 70 111. 318.
Ky. Novels v. Ky. Lumber Co. 108 Ky. 550; Nelson v. Clay, 7 J. J. Marsh
138, 23 Am. Dec. 387.
Me. Maxwell v. Maxwell, 31 Me. 184, 50 Am. Dec. 657; Hubbarb v. Hubbard,
15 Me. 198; Moody v. Moody, 15 Me. 205.
(Foot note 10 continued on next page)
30 LIABILITY OF TENANT AS TO WASTE
fied by the Statute of Westminster II has been held appli-
cable and co-tenants have been held liable for waste without
a statutory provision. 1
Rather more liberty than is enjoyed by life tenants ap-
pears to have been given to tenants in common and joint
tenants so long as the action of the tenant could be con-
sidered consistent with a reasonable enjoyment of the es-
tate, but any action by such a tenant that is not necessary
to a reasonable enjoyment of the estate which he holds
will be restrained in accordance with the general principles
of waste applicable to other forms of tenancy. Possibly
it may be said that the right of use is somewhat broader,
but there is no special liberty to go beyond the limitations
of such use as is considered reasonable.
36. The Avoidance of Liability for Waste. Through
the use of proper words, 2 or by other evidence of inten-
tion, in the creation of an estate a tenant of any class may
hold "without impeachment for waste." Against one hold-
ing under such a tenancy an action at law cannot be brought
to prevent the doing of acts which would ordinarily consti-
tute waste, nor can the tenant be compelled to account for
an injury done to the inheritance. 3 However, even where
(Foot note 10 concluded from preceding page)
Mass. Jenkins v. Wood, 145 Mass, 494; Byam v. Biokford. 140 Mass. 31.
Mich. Benedict v. Torrent, 83 Mich. 181, 21 Am. Dec. 589.
Minn. Shepard v. Pettit, 30 Mum. 119.
Mo. Childs v. Kansas City, Etc. R. Co. (Mo. 1891) 17 S. W. Rep. 954.
N. Y. Cosgriff v. Dewey, 164 N. Y. 1; Aff. 21 N. Y. App. Div. 129; Elwell v.
Burnside, 44 Barb. 447.
N. C. Morrison v. Morrison, 122 N. C. 598; Hinson v. Hinson. 120 N. C. 4(W;
Smith v. Sharpe, Busb. L. (44 N. C.) 91, 57 Am. Dec. 574; See Darden
v. Cowper, 7 Jones L. (52 N. C.) 210, 75 Am. Dec. 461.
S. C. Hancock v. Day, McMull, Eq. (S. C.) 69, 36 Am. Dec. 293; Johnson v.
Johnson, 2 Hill Eq. (S. C.) 277, 29 Am. Dec. 72.
W. Va.Cecil v. Clark, 47 W. Va. 4O2; Williamson v. Jones, 43 W. Va. 562.
For destruction of trees, a tenant has an action on the case in the nature of waste,
against his co-tenant but never an action of trespass quare clausum fregit.
Anders v. Meredith, 4 Dev. & B. L. (20 N. C.) 199, 34 Am. Dec. 376. Cf.
Smith v. Sharp, 44 N. C. 91, 57 Am. Dec. 574.
Childs v. Kansas City Et. R. Co. 117 Mo. 414, 17 S. W. 954, held that where one
tenant occupies land to exclusion of co-tenant, he is liable for waste irrespective
of statute such as 4th and 5th Anne, but Prescott v. Xevers, 4 Mason (U. S.)
326, 19 Fed. Cas. No. 11,390, holds contrary.
1. Dodge v. Davis, 85 lo. 77; Johnson v. Johnson, 2 Hill Eq. 277, 29 Am. Dec. 72;
Hancock v. Day, McMull. Eq. (S. C.) 69, 36 Am. Dec. 293; Thompson v.
Bostwick, McMull. Eq. (S. C.) 75.
2. Belt v. Simkins, 113 Ga. 894, 39 S. E. 490; Chapman v. Epperson Circled Head-
ing Co., 101 111. App. 161; Stevens v. Rose, 69 Mich. 259, 37 X. W. 205: Web-
ster v. Webster, 33 N. H. 18, 66 Am. Dec. 705; McDaniel v. Callan. 75 Ala. 329.
3. 40 Cyc. 500.
ELEMENTS OF WASTE 31
a tenant holds realty without impeachment for waste, he can -
not lawfully commit malicious waste and if his action is un-
conscientious a court of equity will restrain him as one com-
mitting equitable waste. 1 It should be noted that waste is
an injury to the estate by one who is rightfully in posses-
sion, while trespass is an injury by one who is a stranger
to the title and has no right whatever to the property.
37. The Essential Elements of Waste. Although
it has always been the rule in common law that there was
a presumption that waste had not been committed or con-
templated by the one charged with it, 2 and that the com-
plainant must show that an injury to the inheritance had
been, or was about to be, done, 3 yet the doctrine of waste
lias been very strictly construed against the one in possession
under a life estate or other tenancy whenever the plaintiff
succeeded in establishing a permanent and substantial
injury. The essence of the doctrine was that the reversioner,
remainderman, or other owner of the fee was entitled to
have the property come to him, after the termination of
the tenancy, in substantially the same form in which it
was at the time the tenant took possession. Acts which
actually increased the pecuniary value of the inheritance
but nevertheless tended to destroy the identity of the
property, to increase the burden upon it or to impair the
evidence of title were held to constitute waste. 4 Such
waste has been called "meliorating waste." A legal duty
rested upon the tenant to preserve the character of the
estate, and, as a matter of law, irrespective of whether
the market value of the estate or its capacity for producing
income were actually diminished or increased, it was waste
for him either to convert woodland into arable land or pas-
turage, or to permit arable land or pasturage to grow up
to brush or woods.
1. Clement v. Wheeler, 25 N. H. 361; Duncombe v. Felt. 81 Mich. 332, 45 N. W.
1004; Stevens v. Rose, 69 Mich. 259, 37 N. W. 205; Kane v. Vanderburgh. I
Johns, Ch. (N. Y.) 11. For English cases see: 16 Cyc. 627; 40 Cyc. 500.
2. Lynn's App., 31 Pa. St. 44, 72 Am. Dec. 721; Rutherford v. Wilson, 95 Ark. 246,
129 S. W. 534; Morris v. Knight, 14 Pa. Super. Ct. 324; Glass v. Glass, & Pa.
Co. Ct., 408.
3. Morris v. Knight, 14 Pa. Super. Ct. 324.
Act must be more than merely bad husbandry. Patterson v. Central Canada
Loan, Etc. Co., 29 Ont. 134.
4. Palmer v. Young, 108 111. App. 252, 255; McCullough v. Irvine, 13 Pa. S*. 438;
Livingston v. Reynolds, 26 Wend. (N. Y.) 115.
CHAPTER V
THE DOCTRINE OF WASTE AS APPLIED TO TIM-
BER
38. Right of Tenant to Estovers. Under the com-
mon law a person who is lawfully in possession of land
through life tenancy, dower, curtesy, tenancy in common,
tenancy for years, or tenancy from year to year, if not re-
strained by a stipulation to the contrary, is entitled to es-
tovers, or botes; i. e., he may take from the premises, if
available, so much wood as is needed for fuel, fences, agri-
cultural equipment and other necessary repairs and im-
provements. 1 However, if the amount of wood available
for fuel is limited, or the only trees growing upon the premi-
ses are of such species or character as to be especially valu-
1. Co. Litt., 41 b, 53 b, 54 b; 2 Minor's Inst. 531; Lee v. Alston, 1 Ves. Jr. 78;
Landlord and Tenant, Tiffany, Ed. 1910, p. 714.
Ala. Alexander v. Fisher, 7 Aia. 514.
Del. Harris v. Goslin, 3 Harr. 340.
Ga. Dickenson v. Jones, 36 Ga. 97.
Ind. Walters v. Hutchins Admsx, 29 Ind. 136; Miller v. Shields, 55 Ind. 71.
Iowa. Anderson v. Cowan, 125 Iowa 259, 101 N. W. 92, 68 L. R. A. 641, 106 Am.
St. Rep. 303.
Ky. Calvert v. Rice, 91 Ky. 533, 16 S. W. 35, 34 Am. St. Rep. 240; Loudon v.
Warfleld, 28 Ky. (5 J. J. Marsh) 196; Hinton v. Fox, 3 Litt. (Ky.) 380.
La. Patureau v. Wilbert, 44 La. Ann. 355, 10 So. 782.
Mass. Padelford v. Padelford, 24 Mass. (7 Pick.) 152; Hubbard v. Shaw, 92 Mass.
(12 Allen) 120; DorrelJ v. Johnson, 17 Pick. 263.
N. H. Smith v. Jewett, 40 N. H. 530; Webster v. Webster, 33 N. H. 18, 66 Am.
Dec. 705; Miles v. Miles, 32 N. H. 147, 64 Am. Dec. 362.
N. J. Den v. Kinney. 55 N. J. L. 552.
N. Y. Gardiner v. Derring, 1 Paige 573; Harder v. Harder, 26 Barb. 409; Van
Deusen v. Young, 29 N. Y. 9.
N. C. Parkins v. Cox, 3 N. C. 339.
Ohio Kent v. Bentley, 3 Ohio St. 173.
Pa. Morris v. Knight, 14 Pa. Super. Ct. 324; Beam v. Woolridge, 3 Pa. Co. Ct.
17.
R. I. Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621.
S. C. Smith v. Poyas, 2 Desauss. Eq. 65.
Wis. Wright v. Roberts, 22 Wis. 161. But see Leyman v. Abeel, 16 Johns
(N. Y.) 30; Livingston v. Ketcham, 1 Barb. (N. Y.) 592; Van Renslaer
v. Radcliff, 10 Wend. (N. Y.) 639.
U. S. Loomis v. Wilbur, 15 Fed. Cas. 8,498, 5 Mason 13. Canada Titus v. Sulis,
3 Nova Scotia 497; Campbell v. Shields, U. C. Q. B. 449; St. Paul 1 !
Church v. Titus, 6 N. Bmnsw. 278.
32
WASTE IN ENGLAND 33
able for building purposes, or ornamental or protective uses,
the right of the tenant to estovers will be restricted to such
extent as a prudent management of the estate shall require. 1
39. Waste in England. Both the general policy of
the English common law to preserve the established char-
acter of land while in the possession of others than those
holding the fee simple title and the relative scarcity in
England of forests containing trees suitable for construction
purposes served to caude English courts to show the great-
est consideration to property rights in growing trees, and
the cutting of certain kinds or classes of trees, known as
"timber trees," by a tenant was early determined to be
waste against which summary relief would be given. The
word "timber" was used technically in English law to de-
note green trees of an age of twenty years, or by the cus-
tom of the place of even a greater age, such as oak, ash,
elm and other trees, the wood of which was adapted to
constructional uses. 2 The determination of whether cer-
tain species should be considered timber trees in contempla-
tion of law depended upon the custom of the locality where
the question of waste arose. 3 In England it is waste to
cut any timber tree, or to permit it to be cut, 4 except upon
land where it has been the custom to fell suitable wood at
intervals as a part of the regular profits. 5 The exception
has been announced in the consideration of cases involving
1. 7 Bac. Abr. 252; Simmons v. Norton, 7 Bing. 640, 20 E. C. L. 270; Arch Deacon
v. Jennor, Oro. Eliz. 604; Hogan v. Hogan, 102 Mich. 641; Rutherford v. Aiken,
3 Thomp. & C. (N. Y.) 60; Gorges v. Stanfleld, Cro. Eliz. 593. (Present repairs
only.)
2. Co. Litt. 53a; Comyn's Dig. "waste," D; 5; 2 Roll. 28 1. 10; 3 Danes Abr. 218,
233; Tudor's Lead. Gas. 65, Ambrey v. Fisher, 10 East 446; Chandos v. Talbot,
2 P. Wms. 606; Honywood v. Honywood, L. R. 18 Eq. 306. 43 L. J. Ch. 652, 30
L. T. Rep. N. S. 671, 22 Wkly, Rep. 749; Dunn v. Bryan, Ir. R. 7 Eq. 143; Dash-
wood v. Magniac (1891) 3 Ch. 306; Dickenson v. Jones, 36 Ga. 97; Kidd v. Den-
nison, 6 Barb. (N. Y.) 9; Jackson v. Brownson, 7 Johns (N. Y.) 227, 5 Am. Dec.
258. See Landlord & Tenant, Tiffany, St. Paul 1910, p. 711, Sec. 109.
3. Honywood v. Honywood, L. R. 18 Eq. 306, 43 L. J. Ch. 652, 30 L. T. Rep, N. S.
671. 22 Wkly, Rep. 749; Cook v. Cook, Cro. Car. 531. 79 Eng. Reprint 1059;
Cumberland's Case, Moore K. B. 812, 72 Eng. Reprint 922; Chandos v, Talbot.
2 P. Wms. 606, 24 Eng. Reprint 877; Coke Litt. 53a: Bewes, Waste 98; Guffly
v. Pindar, Hob. 219; Bullen v. Denning, 5 B. & C. 842.
4. See Bond v. Lockwood, 3 111. 212; McGregor v. Brown, 10 N. Y. 114: Ward v.
Sheppard, 3 N. C. 283, 2 Am. Dec. 625; Glass v. Glass, 6 Pa. Co. Ct. 408: Brown
v. O'Brien, 4 Pa. L. J. 454; Profltt v. Henderson. 29 Me. 325; Keeler v. Eastman,
11 Vt. 293.
5. Perrot v. Perrot, 3 Atk. 94; Perrand v. Wilson. 4 Hare 344; Dashwood V Magniac
(1891) 3 Ch. 306.
34 LEGAL WASTE OF TIMBER
the right of a tenant for life under a demise or settlement,
but, apparently the same rule would obtain under a lease,,
except as the lease itself should extend or abridge the right
to cut timber.
40. Waste in America. Because of the large quan-
tity of wild and wooded land which has heretofore always,
existed in most parts of America, and the consequent
supply of construction timber readily available, the distinc-
tion between timber trees and non-,timber trees which ob-
tained under the common law as administered in England
has been softened and evaded by American courts. The
distinction still exists in the law but the differentiation is
not so clear as formerly and the test as to whether the cutting
of certain trees constitutes waste has become one as to the
purpose of the cutting and the actual effect of the cutting
upon the estate as capital, or a source of income, rather
than one as to the intrinsic character of the individual
trees cut. 1 A marked modification of the English doctrine
of waste has resulted. Acts which in England would un-
questionably constitute waste are not considered waste
in the United States. - AH related facts and surrounding
circumstances, including the relation to the land which is
sustained by the tenant, will be taken into consideration
in each case that arises under the American doctrine of
legal waste. 3
41. General Principles in both England an d Amer-
ica. The common law rule still obtains that trees which
are not classed as timber trees, either by general, or by
local, custom, may, generally speaking, be cut by a tenant
in reasonable quantity without liability for waste. 4 The
1. Babb v. Perley, 1 Me. 6; Cannon v. Barry, 59 Miss. 289.
2. Drown v. Smith, 52 Me. 141; Crockett v. Crockett, 2 Ohio St. 180.
See citations under Note 37, 16 Cyc. 627.
3. Moss Point Lumber Co. v. Harrison County, 89 Miss. 448, 42 So. 290. S73; Web-
ster v. Webster, 33 N. H. is, 25. 66 Am. Dec. 705: McCiillough v. Irvine, 13 Pa.
St. 43S. Am. & Eng. Ency. Law, 2cl Ed., Vol. 30, p. 240; Note 4. 40 Cyc. 501;
Cf. Acts of Ex'r and Adm'r, McNichol v. Eaton, 77 Mo. 246; McCracken v.
McCracken, 6 T. B. Mon. (Ky.) 342. Finley v. Pears in. 7ft S. W. 374. 2.'> Ky.
L. Rep. 766; Gordon v. Wfst, 8 X. H. 44t; Costo v. Kirz.l 27 W.Va. 750;
Overton v. Overton, 10 La. 472.
Acquiescence in waste by another. Pearson v. Darrington, 32 Ala. 227.
4. Zimmerman v. Shreeve, 59 Md. 357; Miles v. Miles, 32 N. H. 147, 64 Am. Dec.
362; 4 Kent's Com. 73. Am. Eng. Enc. Law V. 28 p. 537, 2d ed.
GENERAL PRINCIPLES 35
tenant may, therefore, cut the inferior species and inferior
individuals of the timber species provided the removal of
timber is not of such e.xtent or done in such manner as to
destroy the character of the land as woodland. : Such
wood is considered somewhat like an ordinary crop on the
land, and is called "underwood" in some English authori-
ties. The cutting of dead trees, or "dotards,'' by a tenant
for the clearing of land, the giving of better opportunity
for growth to the green timber, or simply for use is not
waste; 2 and in an American case, involving a question of
w r aste, the court held that evidence tending to show that
the trees cut and sold were in a dying condition was properly
admissible. 3 In England and, generally at least, in the
United States trees capable of forming the subject matter
of waste belong to the owner of the inheritance after sever-
ance whether severed by act of the tenant, 4 of a third
party, :> or by the elements G and the tenant will be guilty
of waste if he appropriate timber trees blown down by s i orm. :
However, trees which the tenant may lawfully cut. without
waste, belong to the tenant, 8 and he is entitled tj the
proceeds, whether they have been severed by himself, 9
by the lessor, 10 by a third party, u or by the elements, 12
and the tenant is not guiltv of waste Jn removing such
1. Hogan v. Hogan, 102 Mich. 041, 01 X. \V. 73.
See Landlord and Tenant, Tiffany. Kd. 1010. p. 711, Sec. l()ii.
2. Co. Litt. 53a; Herlakenden's Case, 4 Coke (12: (".age v. Smith. 2 Rolle Abr. S17;
Cowley v. Wellesley, L. R. 1 Kq. 05<i, 3 Beav. 035, 14 L. T. Rep. X. S. 425. 14-
Wkly. Rep. 52S. 55 Eng. Reprint 101:5; IVrrot v. Perrot. 3 Atk. !)4, 2(i Eng. Re-
l>rint X57: Sawyer v. Hoskinson, 110 Pa. 47:{, 1 Atl. 30S; Keeler v. Eastman, 11
Vt. 293; Kins,' v. Miller. 99 N. C. 5x3. ti S. K. (i(i(): \\aples v. Waples, 2 Harr.
'Del.) 2S; Drown v. Smith, 52 Me. Ill: Kent v. Hentley, 3 Ohio Dee. 173;
Hought on v. Cooper, (i li. Mon (Kv.) 2S1.
3. Morris v. Knight. 14 I'a. Super. Ct. 324.
4. Bulkley v. Dolbeare. 7 Conn. 2:52: White v. Cutler, 34 Mass. ( 17 Pick.) 24S, 2S
Am. Dec. 290: Johnson v. Johnson. IS N. II. 594: Williamson v. Jones, 43 W.
Va. 502, 27 S. K. 41 r Mill v. Hurgess, 37 S. C. 004, 15 S. K. 903: Richardson
v. York, 14 Me. 21 (i; Lester v. Young. 14 K. I. 579.
5. Lane v. Thompson, 43 X. II. 320; See Porch v. Fries, is X. J. K<|. 201.
(i. Stonebreaker v. ZollickonYr, 52 Md. 154, 3G Am. Rep. 304.
7. Ward v. Andrews, 2 Chit. (53(5, IS E. C. L. 435; Mooers v. Wait, 3 Wend. v-V Y.)
104; Cf. Shult v. Barker. 12 Serg. & R. (Pa.) 272.
Wind-thrown trees pass with land as realty; Leidy v. Procter, i)7 Pa. St. 480; Soo-
also Am. & Eng. Ency. Law, Vol. 30, p. 305. Xote 2.
S. Mooers v. Wait. 3 "VVend. (X*. Y.) 104; Hastings v. Crunckleton, 3 Yeates (Pa.)
251: Crockett v. Crockett, 2 Ohio St. ISO; Lewis v. Godson, 15 Out. 252.
9. Promt v. Henderson, 29 Mo. 325; Clement v. Wheeler, 25 X. H. 3(11 : Crockett V-
Crockett, supra: Keeler v. Eastman, 11 Yt. 293.
10. Am. & Eng. Ency, Law, Vol. 30, p. 304.
11. Ibid.; Land & Ten., Tiffany. Ed. 1910. p. 737.
12. Ibid.
36
trees when blown down by a storm. 1 The parts of wi nd-
thrown timber that are fit only for wood belong to the
tenant. 2 Similarly, when a tenant holds without impea ch-
ment for waste trees which have been cut belong to the
tenant by whomever severed.
42. Limitations upon the Amount of Timber A
Tenant May Cut. The amount of wood and timber which
can be cut by any tenant without waste is only such as is
reasonably necessary to the enjoyment of the estate which
he holds. 3 He is entitled to take that which is suitable
for the uses permitted and may, ordinarily, take that
which is conveniently situated. 4 The taking of a reason-
able amount for fuel for the use of servants living on the
land, either in the same house or in another, has been per-
mitted. 5 However, the allowance for firewood for ser-
vants or employees will not be liberally extended and it
has been held that on a farm of one hundred and sixty-five
acres a tenant for life was not entitled to firewood for the
dwelling of a laborer on the premises in addition to that
needed for the principal dwelling. 6 The tenant cannot
take growing timber trees for firewood when there is a
sufficient quantity of dead timber or inferior trees avail-
able. 7
The right to cut timber for repairs has been held to exist
even where the tenant had agreed to make repairs at his
own expense, 8 and the right has been considered so fun-
damental that a tenant for life could cut timber for the
construction of a new building in place of one that had be-
come dilapidated, or ruinous. 9 Yet, he cannot take tim-
1. Houghton v. Cooper, 6 B. Mon. (Ky.) 281; Shult v. Barker, 12 Serg. & R. (Pa.)
272; See Am. & Eng. Ency. Law, 2 Ed., Vol. 30, p. 242.
2. Stonebreaker v. Zollickoffer, 52 Md. 154, 36 Am. Rep. 364.
3. Zimmerman v. Shreeve, 59 Md. 357; Miles v. Miles, 32 N. H. 147, 64 Am. Dec.
362; Smith v. Jewett, 40 N. H. 530; Simmons v. Norton, 7 Bing. 640; Doe v.
Wilson, 11 East. 56; Pardoe v. Pardoe, 82 L. T. Rep. N. S. 547; Padelford v.
Padelford. 24 Mass. (7 Pick.) 152; Phillips v. Allen. 89 Mass. (7 Allen) 115;
Johnson v. Johnson, 18 N. H. 594; Anderson v. Cowan, 125 Iowa 259, 101 N. W.
92, 68 L. R. A. 641, 106 Am. St. Rep. 303.
4. Webster v. Webster, 33 N. H. 18, 66 Am. Dec. 705; Rutherford v. Aiken, 2 Thompa'
& C. (N. Y.) 281, (3 Thomps. & C., p. 60.)
5. Smith v. Jewett, 40 N. H. 530; Gardiner v. Derring, 1 Paige (N. Y.) 573.
6. Sarles v. Sarles, 3 Sandf . Ch. (N. Y.) 604.
7. Hogan v. Hogan, 102 Mich, 641, 61 N. W. 73.
8. Harder v. Harder, 26 Barb. (N. Y.) 409; See Coke Litt. 54 b.
9. Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 601.
RIGHT TO USE TIMBER LIMITED 37
ber for repairs made necessary by his own fault, l nor to
rebuild a structure destroyed by an act of God. 2 Timber
cannot be used for the making of repairs to an extent greater
than is necessary. 3 If there are mines upon the premises
which the tenant is entitled to work he may, in the absence
of special restrictions, take the timber necessary for mining
operations, at least to the extent to which timber has pre-
viously been taken from the premises for such purposes. 4
A life tenant has been permitted to use wood in the opera-
tion of salt works 5 upon the premises and on principle
the right should be extended to other industries which have
customarily been conducted upon the premises or which
may reasonably be considered one of the privileges incident
to the enjoyment of the possession of the premises. 6
43. The Relationship Between the Possession of
Land and Use of Timber Must be Intimate. A
tenant cannot take wood or timber for use at other
times ' or upon other premises, 8 or for an industrial
enterprise which is conducted upon the same premises
but which bears no intimate relation to the land, or
its possession, and for which no special provision was
made in the demise or other instrument under author-
ity of which the premises are held, '' and it has been held
that the cutting of wood by a life tenant for the burning
of brick which were to be sold constituted waste. 1(l In
the absence of express stipulations granting him the privi-
lege American courts generally hold that a tenant for life
1. Co. Litt. 53b.
2. Miller v. Shields. 55 Ind. 71.
3. Sarlos v. Sarles, ;! Sandf. Cli. (X. V.) (>()1 ; Gorges v. Stanfield, fro. Eli/,. 593.
4. Noel v. Noel, 1!) Pa. St. 323.
5. Findliiy v. Smith, Munf. (Va.) 13-1. IS Am. Dec. 733.
See Bond v. Godsey, 99 Va. 504, .'59 S. K. 21t>, where in estimating commuted
value of estate in curtosy court declined to exclude share in value of standing
timber, and McOaulay v. Dismal Swamp Land Co. 2 Hob. (Va.) 507. giving
dower in profits of timber cutting .
f>. Den v. Kinney. 5 X. .]. L. 03-1; Wilson v. Smith, 5 Yerg. (Tenn.l 379.
7. Morohoii.se v. C'otheal. 22 X. .1. L. 521; Ividcl v. Dennison. ti Barb. (X. Y.i <V
8. Armstrong v. Wilson. 00 III. 22(i.
9. McCracken v. McOraokon, ti T. B. Mon. (Ky.) 342.
10. Livingston v. Reynolds. 2(3 Wend. (X. Y.) 115.
38 LEGAL WASTE OF TIMBER
or for years has no right to cut for sale 1 either timber
trees or those fit only for firewood, nor to exchange the
same either for fuel 2 or for materials for repairs; 3 and
some courts have declined to accept as a justification for
such exchange the proffered showing of the tenant that he
procured fuel or repair timber elsewhere and that he took
no more from the premises than was allowable. 4 On the
other hand it has been held in some jurisdictions that a
1. Ala. Ladd v. Shattuck, 90 Ala. 134, 7 So. 764.
Ark. Rutherford v. Wilson, (1910) 129 S. W. 534; McLeod v. Dial, 63 Ark. 10.
37 S. W. 306.
Del. Fleming v. Collings, 2 Del. Oh. 230.
'Ga. Smith v. Smith. 105 Ga. 106, 31 S. E. 135; Jones v. Gammon, 12','. Ga. 47, 50
S. E. 982.
Ind. Miller v. Shields, 55 Ind. 71 ; Modlin v. Kennedy, 53 Ind. 267.
Ky. Loudon v. Warfleld, 5 J. J. Marsh 196; Brashear v. Macey. 3 J. J. Marsh 93.
Mass. Padelford v. Padelford, 24 Mass. (7 Pick.) 151; Noyes v. Stone, 163 Mass.
400, 40 N. E. 856.
Me. Babb v. Periey, 1 Me. 6; Richardson v. York, 1 Me. 21<>.
JVIich. Duncombe v. Felt, SI Mich, 332, 45 N. W. 1004: Webster v. Peel, 97 Mich.
326.
.Miss. Moss Point Lumber Co. v. Harrison Co., 89 Miss. 448. 42 So. 290. 873;
Warren Co. v. Gans, 80 Miss. 76, 31 So. 539; Learned v. Ogd 'n, 80 Miss.
769, 32 So. 278, 92 Am. St. Rep. 621.
Mo. Profltt v. Henderson, 29 Mo. 325; Davis v. Clark. 40 Mo. A pp. 515.
X. H. Chase v. Hazelton, 7 N. H. 171; Fuller v. Wason, 7 N. H. 341; Webster v.
W. -b^ter, 33 N. H. 18, 60 Am. Dec. 705; Johnson v. Johnson, 18 N. H.
594.
TT. J. Morehouse v. Cotheal, 22 N. J. L. 521; Van Syckel v. Emery, 18 X. J. Eq.
387.
N. Y. Robinson v. Kinne, 70 N. Y. 147; Kidd v. Dennison, 6 Barb. 9; Weatherby
v. Wood, 29 How. Pr. 404; Sarles v. Sarles, 3 Sandf. Ch. 601 ; Van Deusen
v. Young, 29 N. Y. 9; Clarke v. Cummings, 5 Barb. 339; Schermerhorn
v. Buell, 4 Denio 422; Mooers v. Wait, 3 Wend. 104, 20 Am. Dec. 667;
People v. Davidson, 4 Barb. 109.
IN. C. Ward v. Sheppard, 3 N. C. 283, 2 Am. Dec. 625; Parkins v. Cox, 3 N. C.
339; Davis v. Gilliam, 40 N. C. (5 Ired. Eq.) 308; Dorsey v. Moore, 100
N. C. 41, 6 S. E. 270; Jones v. Britton, 102 N. C. 166, 9 S. E. 554, 4
L. R. A. 178.
Ohio. Crockett v. Crockett, 2 Ohio St. 180.
Pa. Glass v. Glass, 6 Pa. Co. Ct. 463.
R. I. Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621; Lester v. Young. 14 R. I.
579.
S. C. Hill v. Burgess, 37 S. C. 604, 15 S. E. 963.
Texas Johnson v. Gurley, 52 Tex. 222.
U. S. Thurston v. Muston, 23 Fed. Cas. No. 14,013. 3 Cranch. C. C. 335.
Can. Titus v. Sulis, 3 Nova Scotia Dec. 497; Lewis v. Godson, 15 Ont. 252;
Tayler v. Tayler. 5 U. C. Q. B. O. S. 501.
Eng. Raymond v. Fitch, 2 C. M. & R. 588, 1 Yale 337, 5 L. J. Exch. 45. 5 Tyrw.
985; Goulin v. Caldwell, 13 Grant Ch. (U. C.) 493.
See 33 Cent. Dig. title, Life Estates, Sec. 42; and 48 Cent. Dig., title, Waste,
Sees. 12 and 13.
2. Padelford v. Padelford, 7 Pick. (Mass.) 152; Hogan v. Hogan, 102 Mich. 641, 61
N. W. 73; Miles v. Miles, 32 N. H. 147.
3. Dennett v. Dennett, 43 N. H. 499; Elliott v. Smith, 2 N. H. 430; Miller v. Shields,
55 Ind. 71; Kidd v. Dennison, 6 Barb. (N. Y.) 9.
4. Clarke v. Cummings, 5 Barb. (N. Y.) 339 (Character of wood may have been a
factor.) Morehouse v. Cotheal, 22 N. J. L. 521; Gorges v. Stanfleld, Cro. Eliz.
593, 78 Eng. Reprint 836; Contra, Phillips v. Allen, 7 Allen (Mass.) 115.
DISCRETION OF JUDGE AND JURY 39
tenant can exchange timber cut on the premises for other
timber to use in repairs, if such course shows a clear saving
to the reversioner or remainderman; l and even that a
tenant may sell timber and use the proceeds to buy other
fencing material. 2 In accordance with the principles
above stated it has been held that a tenant by curtesy can-
not cut and sell trees merely for profit, 3 nor can he grant
to another a license to cut and remove timber; 4 but he
may work mines already opened 5 and undoubtedly may
use timber from the premises in reasonable amount for
such working.
44. The Judge and Jury Exercise Broad Discretion.
It is the duty of the court to define what constitutes waste
for this is a matter or law, 6 but the question whether
waste has been committed in a particular case is one of
fact which is to be determined by the jury, 7 except in
those cases in which the acts complained of are per se in-
jurious to the inheritance 8 or are clearly in violation of
an obligation which rests upon the tenant. 9 The question
1. Loomis v. Wilbur, 5 Mason 13, 15 Fed. Gas. No. 8,498; Hixon v. Reaveley, 9 Ont.
L. Rep. 6, 4 Ont. Wkly. Rep. 437; Contra Miller v. Shields, 55 Ind. 71 ; See King
v. Miller, 99 N. C. 583, 6 S. E. 660. Cf. U. S. v. Niemeyer, 94 Fed. 147 (Home-
stead in Ark. U. S. Land.)
2. In re Williams, 1 Misc. (N. Y.) 35, 22 N. Y. Suppl. 906.
3. Learned v. Ogden, 80 Miss. 769, 32 So. 278, 92 Am. St. Rep. 621; Cf. Xoyes v.
Stone, 163 Mass. 490; Van Hoozer v. Van Hoozer, 18 Mo. App. 19; Joyner v.
Speed, 68 N. C. 236.
4. McLeod v. Dial, 63 Ark. 10, 37 S. W. 306.
5. Rose v. Hays, 1 Root (Conn.) 244;. in re Steele. 19 N. J. Eq. 120. Cf. Bond. v.
Godsey 99 Va. 564, 39 S. E. 216, McCaulay v. Dismal Swamp Land Co 2 Rob.
(Va.) 507 (Timber cases )
C. Van Syckel v. Emery, 18 N. J. Eq. 387.
7. Me. Down v. Smith, 52 Me. 141; Hasty v. Wheeler, 12 Me. 43 1.
Md. Machcn v. Hooper, 73 Md. 342.
Mass. Pynchon v. Stearns, 11 Met. 304, 45 Am. Dec. 207.
Mo. Proffitt v. Henderson, 29 Mo. 325.
N. H. Webster v. Webster, 33 N. H. 18, 66 Am. Dec. 705.
N. J. Morehouse v. Cotheal, 22 N. J. L. 521.
N. Y. McGregor v. Brown, 10 N. Y. 114; Harder v. Harder, 26 Barb. 409; Kidd
v. Dennison, 6 Barb. 9; Jackson v. Andrew, 18 Johns. 431; Jackson v.
Brownson, 7 Johns. 227, 5 Am. Dec. 258; Jackson v. Tibbitts, 3 Wend.
341 ; See also Eysaman v. Small, 61 Hun, 618, 15 N. Y. Suppl. 288.
N. C. King v. Miller, 99 N. C. 583; Davis v. Gilliam, 5 Ired. Eq. (40 N. C.) 308;
Ward v. Sheppard, 3 N. C. 283; 2 Am. Dec. 625.
Ohio. Crockett v. Crockett, 2 Ohio St. 180.
Pa. Lynn's Appeal, 31 Pa. St. 46, 72 Am. Dec. 721; McCullotigh v. Irvine, 13
Pa. St. 438; Hastings v. Crunckleton, 3 Yeates, 261.
Vt. Keeler v. Eastman, 11 Vt. 293.
Eng. Young v. Spencer, 10 B. & C. 145, 21 E. C. L. 47; Doe v. Burlington, 5
B. & Ad. 507, 27 E. C. L. 117; Phillips v. Smith, 14 M. & W. 595.
8. McGregor v. Brown, 10 N. Y. 114.
9. Ibid. See also Agate v. Lowenbein, 57 N. Y, 604.
40 LEGAL WASTE OF TIMBER
whether trees have been cut in good faith for purposes of
repair, x like the question of whether cutting for other
purposes has been reasonable and in accordance with the
custom of the country, has been regarded as one for the
jury. 2
45. Local Custom and Previous Use are Impor-
tant Factors. In the United States, as in England, a
tenant may cut and use timber in the ordinary manner
in which it has been used on the premises, 3 or for such
uses as are necessarily incident to the purposes for which
the land was demised or leased. 4 Thus where land was
devised chiefly to provide a source of support to a life tenant
and the testator had so used the property as to indicate that
the cutting of timber was one of the profits which the land
was expected to produce, the cutting of a reasonable amount
by the life tenant was held not to constitute waste; 5 but
the fact that the amount of land already cleared was not
sufficient to support a life tenant has been held not to author-
ize the removal of valuable timber trees to the injury of
the inheritance. 6
The cutting of oak for fuel has been held not to be waste
if such cutting were common usage in the locality where
done. 7 Under the same general rule a tenant in dower
has been permitted to cut and sell hoop-poles, 8 staves and
1. Doe v. Wilson, 11 East, 56.
Cutting trees on a ward's land is waste, except for necessary repairs.
Moorhead v. Hobbs, 7 Ky. L. Rep. 748: Torry v. Black, 58 N. Y. 185.
(rever'g 65 Barb. 414, 1 Thomp, & C. 42); Truss v. Old, 6 Rand. (Va.)
556, 18 Am. Dec. 748; Knight v. Duplessis, 2 Ves. 360, 28 Eng. Reprint
230.
2. Jackson v. Brownson, 7 Johns. (N. Y.) 233, 5 Am. Dec. 258; Drown v. Smith, 52
Me. 141; King v. Miller, 99 N. C. 583. 6 S. E. 660; McCullough v. Irvine's Exr's,
13 Pa. 438; Rutherford v. Wilson, 95 Ark. 246, 129 S. W. 534; Warren Co. v.
Gans, 80 Miss. 76, 31 So. 539; Chase v. Hazelton. 7 N. H. 171; Kidd v. Denni-
son, 6 Barb. (N. Y.) 9; Keeler v. Eastman, 11 Vt. 293. Eng. Doe v. Wilson,
11 East. 56, 103 Eng. Reprint 925. Can. Campbell v. Shields, 44 U. C. Q. B.
449.
3. Patureau v. Wilbert, 44 La. Ann. 355, 10 So. 782.
4. Neel v. Neel, 19 Pa. St. 323; Wilson v. Smith, 5 Yerg. (Tenn.) 379, 381 ; Findlay v.
Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733; Den v. Kinney. 5 N. J. L. (2 South-
ard) 552; McDaniel v. Callan, 75 Ala, 327
5. Beam v. Woolridge. 3 Pa. Co. Ct. 17; See also Honywood v. Honywood, L. R.
18 Eq. 306; Williard v. Williard, 56 Pa. St. 119; Dashwood v. Magniac (1891)
3 Ch. 306; Angier v. Agnew, 98 Pa. St. 587, 42 Am. Rep 624.
6. Robertson v. Meadors, 73 Ind. 43
7. Babb v. Perley, 1 Me. 6; Padelford v. Padelfonl. 7 Pick (Mass.) 152: Lester v.
Young, 14 R. 1. 579.
S Clemence v. Steere, 1 R. I. 272. 53 Am. Dec. 621.
INTERPRETATION OF AGREEMENTS 41
shingles 1 and to tap trees for the making of turpentine.'
46. The Express or Implied Terms of the Convey-
ance or Demise, will be Given Effect. In fact in the
United States, the same as in England, any cutting which
is contrary to good husbandry and causes any permanent
injury to the freehold or inheritance is waste provided the
tenant has no special right or license to cut, 3 and the
general rule against the cutting of an unnecessary amount
for fuel, 4 or repairs and improvements 5 will be more
strictly enforced where the terms of a lease recite that no
waste is to be committed. 6 Where a lease forbade any
cutting except for the lessee's use or for the improvement
of the premises the court left to the jury the question
whether the tapping of trees for sugar making purposes
had an effect of shortening the lives of the trees with in-
structions to hold the lessee guilty of waste if they found
that injury to the trees had resulted from the tapping; 7
and where a farm was leased for dairy purposes with a
covenant against waste the clearing of woodland was held
waste per se as a matter of law. 8 A lease giving a right
1. Ballentine v. Poyue, 2 Hayne (3 N. Car.) 110.
2. Can- v. Carr, 4 Dev. & B. L. (20 N. Ca..) 179; But see Parkins v. Cox. 2 Hayne
(3 N. Oar. > 339.
3. Ala. Moses v. Johnson, 88 Ala, 517, 7 So. 146, 16 Am. St. Rep. 58; Special Right,
McDaniel v. CalJan, 75 Ala. 329.
Del. Waples v. Waples. 2 Hair. 2S1; Fleming v. Collins, 2 Del. Ch. 230.
Ga. Powell v. Cheshire, 70 Ga. 357, 48 Am. Rep. 572.
Ind. Robertson v. Meadors, 73 Ind. 43.
Ky. McCracken v. McCracken, 6 T. B. Mon. 342.
Mich. Webster v. Peet, 97 Mich. 326, 56 N. W. 558.
Minn. Butman v. James, 34 Minn. 547, 27 N. W. 66.
Mo. Proffitt v. Henderson, 29 Mo. 325.
N. Y. Van Deusen v. Young, 29 N. Y. 9; McGregor v. Brown, 10 N. Y. 114;
Elwell v. Burnside, 44 Barb. 447; Hawley v. Clowes, 2 Johns. Ch. 122;
McCay v. Wait, 51 Barb. 225; Jackson v. Brownson, 7 Johns. 227, 5 Am.
Dec. 258; Solden v. Mann, 2 N. Y, Leg. Obs. 328.
N. C. King v. Miller, 99 N. C. 583, 6 S. E. 660; Parkins v. Cox, 3 N. C. 339.
Pa. Smith's Appeal, 69 Pa. St. 474.
S. C. Smith v. Poyas, 2 Desauss. Eq. 65.
Eng. Hale v. Thomas, 7 Ves. Jr. 586. 6 Rev. Rep. 195, 32 Eng. Reprint 237; Tur-
ner v. Wright, 2 Fisher & J. 234 (1860.)
4. Zimmerman v. Shreeve, 59 Md. 357; Phillips v. Allen, 89 Mass. (7 Allen) 115;
Smith v. Jewett, 40 N. H. 530.
5. People v. Davidson, 4 Barb. (N. Y.) 109; Mooers v. Wait, 3 Wend. (N. Y.) 104,
20 Am. Dec. 667; Ballentine v. Poyner, 3 N. C. 110; See also Holden v. Clarke,
7 Gray (Mass.) 9, 66 Am. Dec. 450.
6. Livingston v. Reynolds, 2 Hill (N. Y.) 157, 26 Wend. (N. Y.) 115; McGregor v.
Brown, 10 N. Y. 114; Sheriden v. McMuUen, 12 Oreg. 150. 6 Pac. 497.
7. Campbell v. Shields, 44 U. C. Q. B. 449.
8. McGregor v. Brown, 10 N. Y. 114.
42 LEGAL WASTE OF TIMBER
to cut from one part of the land leased will not be constru ' I
so as to permit cutting from another part. l An unwar-
ranted cutting will not be considered waste if it causes only
a slight or temporary injury. 2
47. Waste by Tenants in Common. A tenant in
common is given great liberty not only in the matter of
taking estovers from the land held in common but even
in the cutting of timber for sale. Where the extent of the
cutting and the attendant circumstances are not such as
to present evidence of an ouster of the co-tenants, cutting
by a tenant in common is considered an incident to the
enjoyment of the estate to which he is entitled 3 and
will not beheld to constitute an adverse possession as against
his co-tenant. 4 Only when the cutting clearly causes a
substantial injury to the inheritance to the manifest disad-
vantage of his co-tenants will he be held chargeable
with, the value of the timber cut during his occupation of
the land. 5 If the cutting is unreasonable, in view of all
the circumstances, the co-tenants may require an account-
ing for timber sold, 6 but where a lifeowner of common
land cut and used a few hundred dollars worth of timber
1. Ladd v. Shattuck, 90 Ala. 134, 7 So. 764; Jones v. Gammon, 123 Ga. 47, 50 S. E.
982.
2. Sheppard v. Sheppard, 2 Hayw. (3 X. C.) 382; Bandlow v. Thieme, 53 Wis. 57;
Davenport v. Magoon, 13 Oreg. 3, 57 Am. Rep. 1.
3. Whiting v. Dewey, 15 Pick. (Mass.) 428: Shumway v. Holbrook, 1 Pick. (Mass.)
114, 11 Am. Dec. 153; Strong v. Richardson, 19 Vt. 194; Johnson v. Conant.
64 N. H. 109, 7 Atl. 116; Hihn v. Peck, 18 Cal. 640; Partureau v. Wilbert 44
La. Ann. 355; Darden v. Cowper, 7 Jones L. (52 N. C.) 210, 75 Am. Dec. 461;
Dodd v. Watson, 4 Jones Eq. (57 N. C.) 48, 72 Am. Dec. 577; See also Alford
v. Bradeen, 1 Nev. 228. Eng. Martyn v. Knowllys, 8 T. R. 145. 1Q1 Eng.
Reprint 1313; Arthur v. Lamb, 2 Drew & Sm. 428.
4. McQuiddy v. Ware, 67 Mo. 74; Griffles v. Griffles, 8 L. T. Rep. N. S. 758, 11 Wkly.
Rep. 943.
5. Nevels v. Kentucky Lumber Co., 108 Ky. 550, 56 S. W. 969, 22 Ky L. Rep. 247,
99 Am. St. Rep. 388, 49 L. R. A. 416; Strong v. Richardson, 19 Vt. 194; Munsie
v. Lindsay, 10 Ont. Pr. 173; Rice v. George, 20 Grant Ch. (U. C.) 221: Griffin v.
Patterson, 45 U. C. Q. B. 536. 591; But see Gillum v. St. Louis, etc. R. Co.,
5 Tex. Civ. App. 338, 23 S. W. 717; Thompson v. Bostwick, McMull. Eq.
(S. C.) 85; Hancock v. Day, McMull. Eq. 69. 36 Am. Dec. 293.
6. Hodges v. Heal, 80 Me. 281, 14 Atl. 11, 6 Am. St. Rep. 199; Kimbal v. Sumner,
62 Me. 305; Bradley v. Boynton, 22 Me. 287, 39 Am. Dec. 582; Mee v. Benedict,
98 Mich. 260, 57 N. W. 175, 39 Am. St. Rep. 543, 22 L. R. A. 641 ; Gillum v.
St. Louis, etc. R. Co.. 4 Tex. Civ. App. 622, 23 S. W. 716; See also. Hole v.
Thomas, 7 Ves. Jr. 589; Maxwell v. Maxwell, 31 Me. 184, 50 Am. Dec. 657;
Hawley v. Clowes, 2 Johns. Ch. (N. Y.) 122; Elwell v. Burnside, 44 Barb. (N. Y.)
447; Bradley v. Reed, 2 Pittsb. (Pa.) 519; Johnson v. Johnson, 2 Hill Eq. (S. C.)
277, 29 Am. Dec. 72; Hancock v. Day, McMull. Eq. (S. C.) 69, 36 Am. Dec. 293;
McDodrill v. Pardee, etc. Lbr. Co., 40 W. Va. 564; Dodge v. Davis, 85 Iowa 77;
State v. Judge, 52 La. Ann. 103; Clow v. Plummer, 85 Mich. 550; Blake v.
Milliken, 14 N. H. 213.
CLEARING LAND FOR CULTIVATION 43
for manufacture in a sawmill owned by the tenants in com-
mon, and yet left an abundance of timber for all purposes,
he was held not chargeable with the value of the timber
cut. 1 However, this freedom of use does not extend to
unoccupied and unimproved land held in common, and
not only will statutes, making cutting timber from such
lands waste, be strictly enforced,- but such cutting has
been held waste under the common law when shown to
be unreasonable and unnecessary in the enjoyment and
use of the property or injurious to the interests of the co-
tenants. 3 A co-tenant is not entitled to contribution
from a co-tenant for expenditures for the preservation or
benefit of wo'odland. 4
48. A Liberal Construction is Given the Law in
America when Land is Cleared for Cultivation. In
most American jurisdictions consideration will be given
not only to the effect of the cutting upon the inheritance,
but also to the purpose of the cutting, and it is usually held
that a tenant is not guilty of waste if he cuts timber only
to a reasonable extent and for the purpose of fitting the
land for cultivation or pasture. 5 The stern purpose of
1. Dodcl v. Watson, 57 X. C. 4S. <2 Am. Dec. ->77 ; Sec 1 also Adamson v. Adamson
17 Out. 407.
2. Hensal v. Wright, 10 Pa. Co. Ct. 4 Hi (Act May 4, 1S69).
3. Benedict v. Torrent, S3 Mich. 1S1, 47 X. W. 129, 21 Am. St. Rep. 589, 11 L. R. A.
278; See Klwell v. Burnside, 44 Barb. 447.
4. Beaty v. Bordwell, 91 Pa. St. 438; Deck's Appeal, 57 Pa. St. 4ti7; Anderson v.
Greble, 1 Ashm. 13(3; Ward v. Ward, 40 W. Vn. 611, 21 S. K. 740. 52 Am. St.
Hep. 911, 29 I,. K. A. 449; Alexander v. Ellison, 79 Ky. 148; Carver v. Miller,
4 Mass. 559; Gregg v. Patterson, 9 Watts & S. (Pa.) 197; Bowies' Case, 11 Coke
791), 77 Kng. Reprint 1252.
5. Ala. Alexander v. Kisher, 7 Ala. 514.
Cal. McCord v. Oakland Quicksilver Min. Co., 61 Cal. 134, 49 Am. Rep. fiS(5.
Gil. Dickinson v. .Jones, 3(i Ga. 97; Woodward v. Gates, 3S Ga. 205.
111. Bond v. Lock wood, 33 III. 220.
Ind. Daw-son v. Cotfman, 28 Ind. 220.
Ky. McOracken v. McCracken, 6 T. B. Mon. 342; Hickman v. Irvine, 3 Dana
121.
Me. Drown v. Smith, 52 Me. 141.
Md. Adams v. Brereton, 3 llarr. ct J. 124.
Mass. Pynchon v. Stearns, 11 Mete. 304, 45 Am. Dec. 207.
Miss. Cannon v. Barry, 5(i Miss. 289; Warren Co. v. Cans, 80 Miss. 76.
Mo. Profitt v. Henderson, 29 Mo. 325; Davis v. Clark, 40 Mo. App. 515.
Nebr. Disher v. Disher, 45 Nebr. 100, 65 N. W. 308.
X. H. Chase v. Hazolton. 7 N. 11. 171 ; Miles v. Miles, 32 X. II. 147, 64 Am. Dec.
362.
X. J. Morehouse v. Cotheal, 22 X. J. L. 521; Den V. Kinney, 5 X. J. L. 634;
Gaines v. Green Pond Iron Min. Co., 33 N. J. Eq. 003.
X. Y. Harder v. Harder. 28 Barb. 409; Kidd v. Dennison, 6 Barb. 9; People v.
(Foot note 5 continued on next page)
44 LEGAL WASTE OF TIMBER
the law as administered in England to prevent the conver-
sion of woodland into arable land or pasturage even though
the value of the estate be increased 1 does not find favor
in American courts which, in the absence of special obliga-
tions on the part or the tenant to refrain from cutting tim-
ber, will consider whether the clearing has been such as a
prudent farmer would make, having regard to the land as
an inheritance, and whether such clearing has as a matter
of fact, and not in theory, alonej diminished the value of
the land as an estate. 2 The custom of the neighborhood
(Foot note 5 concluded from preceding page)
Davison, 4 Barb. 109; McGregor v. Brown, 10 N. Y. 114; Jackson v.
Brownson, 7 Johns. 227, 5 Am. Dec. 258; Elwell v. Burnside, 44 Barb.
447; Jackson v. Tibbitts, 3 Wend. 341.
N. C. King v. Miller, 99 N. C. 583; Davis v. Gilliam, 5 Ired. Eq. (40 N. C.) 308;
Parkins v. Cox, 2 Hayw. (3 N. C.) 283, 2 Am. Dec. 625; Crawley v.
Timberlake, 2 Ired. Eq. (37 N. C.) 46O; Sherrill v. Conner. 107 N. C.
630, 12 8. E. 588. .
Ohio. Crockett v. Crockett, 2 Ohio St. 180; Hall v. Rohr, 10 O. Dec. (Reprint)
690, 23 Cin. L. Bui. 121.
Pa. McCullough v. Irvine, 13 Pa. St. 438; Lynn's Appeal, 31 Pa. St. 44, 72 Am.
Dec. 721; Givens v. McCalmont, 4 Watts. 460; Hastings v. Crunckleton,
3 Yeates (Pa.) 261; Morris v. Knight, 14 Pa. Super, Ct. 324; Sayers v.
Hoskinson, 110 Pa. St. 473. 1 Atl. 308; Beam v. Woolridge, 3 Pa. Co.
Ct. 17.
R. 1. Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621.
S. C. Smith v. Poyas, 2 Desaus. 65; Hancock v. Day, McMull. Eq. 69, 36 Am.
Dec. 293 ; Johnson v. Johnson, 2 Hill Eq. 277, 29 Am. Dec. 72.
Tenn. Lunn v. Oslin, 96 Tenn. 28; Owen v. Hyde, 6 Yerg. 334, 27 Am. Dec. 467.
Vt. Keeler v. Eastman, 11 Vt. 293.
Va. Findlay v. Smith, 6 Mum*. 134, 8 Am. Dec. 733; Crouch v. Puryear, 1 Rand.
258. 10 Am. Dec. 528.
Wis. Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 513.
U. 8. Loomis v. Wilbur, 5 Mason (U. S.) 13.
Can. Titus v. Sulis, 9 Nova Scotia 497 ; Saunders v. Breakie, 5 Ont. 603 ; Drake
v. Wigle, 24 U. C. C. P. 405.
Eng. Arthur v. Lamb, 2 Dr. & Son 428, 12 L. T. Rep. N. S. 338, 62 Eng. Reprint
683.
1. But see, Meux v. Cobley (1892) 2 Ch. 253,
2. Ga. Woodward v. Gates. 38 Ga. 205.
111. Bond v. Lockwood, 33 111. 212.
Ind. Dawson v. Coffman, 28 Ind. 220.
Me. Drown v. Smith, 52 Me. 141.
Mich. Hogan v. Hogan, 102 Mich. 641, 61 N. W. 73.
Miss. Cannon v. Barry, 59 Miss. 289; Warren Co. v. Gans, 80 Miss. 76, 31 So.
539; Moss Point Lumber Co. v. Board of Supr. Harrison Co., 89 Miss.
448, 42 So. 290.
Mo. Davis v. Clark, 40 Mo. App. 515.
Nebr. Disher v. Disher, 45 Neb. 100, 63 N. W. 368.
N. H. 'Chase v. Hazelton, 7 N. H. 171.
N. Y. Jackson v. Brownson, 7 Johns 227, 5 Am. Dec. 258.
N. C. Davis v. Gilliam, 40 N. C. (5 Ired. Eq.) 308.
Pa. Morris v. Knight, 14 Pa. Super. Ct. 324.
S. C, Thompson v. Bostwick, McMull. Eq. 85; Hancock v. Day, McMull, Eq.
69, 36 Am. Dec. 293.
Vt. Keeler v. Eastman, 11 Vt. 293.
Wis. Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 513.
CLEARING LAND FOR CULTIVATION 45
will have a bearing upon this question, l and the decision
whether the cat complained of was good husbandry or not
is one of fact, to be left to the jury. 2 It has been said that,
where a farm was leased for a rental and all of the farm
except a few acres consisted of wild and uncultivated land,
the parties to the lease must be held to have intended that
the lessee might fell part of the timber so as to fit the land
for cultivation. 3 The clearing of sixteen acres in addi-
tion to thirty acres already cleared on premises which com-
prised two hundred and forty acres of heavily timbered
land has been held not to be unreasonable nor so prejuidicial
to the rights of the remainderman as to constitute waste. 4
Where a lease required the tenant to reduce to cultivation
the uncleared portions of the premises the cutting of timber
on such portions was held not to be waste. 5 But although
a tenant for years may gradually clear woodland in prepar-
tion for cultivation, he will not be permitted to cut timber,
on that pretext, just before the completion of his lease. 6
In such cases the proportion of the woodland to the whole
tract in possession of the tenant and the relative value
of the trees destroyed must be considered in deciding whether
the act complained of is actually waste, 7 and the fact
that but a small proportion is woodland will go far toward
limiting the tenant's right to remove. 8 Where a life
tenant had permitted a pasture go grow up to trees, it was
held he could not then cut the trees even though it might
1. Morehouse v. Cotheal, 22 N. J. L. (2 Zab. 521; McCullough v. Irvine's Exr's, 13
Pa. 438; Proffitt v. Henderson, 29 Mo. 329; Drown v. Smith, 52 Me. 141;
Findlay v. Smith, 6 Munf. (Va-.) 134. 8 Am. Dec. 733.
2. Woodward v. Gates, 38 Ga. 205; Drown v. Smith, 52 Me. 141; Morehouse v.
Cotheal, 22 N. J. L. 521; Keeler v. Eastman, 11 Vt. 293; McCay v. Wait, 51
Barb. (N. Y.) 225; Drake v. Wigle, 22 U. C. C. P. 341; Jackson v. Brown-
son, 7 Johns. (N. Y.) 227, 5 Am. Dec. 258.
3. Kidd v. Dennison, 6 Barb. (N. Y.) 9.
4. Lambeth v. Warner, 2 Jones Eq. (55 N. C.) 165; See likewise, Joyner v. Speed, 68
N. C. 236.
5. McDaniel v. Callan, 75 Ala. 327.
6. Kidd v. Dennison, supra.
7. Alexander v. Fisher, 7 Ala. 514; Warren County v. Gans, 80 Miss. 76, 31 So. 539;
McCracken v. McCracken, 6 T. B. Mon. (Ky.) 342; Lambeth v. Warner, 55
N. C. 165; Joyner v. Speed, 68 N. C. 236; Shine v. Wiicox, 21 N. C. 631; See
McCaulay v. Dismal Swamp Land Co., 2 Rob. (Va.) 507.
8. Powell v. Cheshire, 70 Ga. 357, 48 Am. Dec. 572; Duncombe v. Felt, 81 Mich.
332, 45 N. W. 1004; Hastings v. Crunckleton, 3 Yeates (Pa.) 261; McLeod v.
Dial, 63 Ark. 10, 37 S. W. 306; Kidd v. Dennison, 6. Barb. (N Y.) 9; Jackson
v. Brownson, 7 Johns. (N. Y.) 227 5 Am. Dec. 258.
46 LEGAL WASTE OF TIMBER
be good husbandry for the owner in fee to restore the land
to pasture. 1
49. But the Removal of Timber Must be
Beneficial to the Estate. If it is clearly established
that the timber was cut for the purpose of making the land
arable, the mere fact that the timber thus removed was
sold will not make the tenant liable for waste. 2 If land
is cleared for any other purpose than fitting it for culti-
vation and the clearing is not manifestly beneficial to the
estate it is waste. 3 In fact, clearing for any purpose
whatever is waste if it decreases rather than enhances the
value of the land, 4 The removal of all the valuable timber
even for purposes of cultivation, 5 or of so much that there
is not enough left for repairs upon the premises 6 will be
held waste.
50. Cutting of Immature Trees or Those Bear-
ing a Special Relationship to Land. Timber trees under
twenty years of age can be cut by a tenant only for the
purpose of thinning the growth for the benefit of the other
1. Clark v. Holden, 7 Gray (Mass.) 8, 66 Am. Dec. 450.
2. Cannon v. Barry, 59 Miss. 289; Warren Co. Supr. v. Cans, 80 Miss. 76, 31 So. 539;
Proffitt v. Henderson, 29 Mo. 325; Kidd v. Dennison, 6 Barb. (N. Y.) 9; Davis
v. Gilliam, 40 N. C. (5 Ired. Eq.) 308; King v. Miller, 99 N. C.583, 6S.E.660;
Crockett v. Crockett, 2 Ohio St. 180; Keeler v. Eastman, 11 Vt. 293; Hony-
wood v. Honywood, 18 Eq. 306; Lewis v. Godson, 15 Ont. 252; But see Saund-
ers v. Breakie, 5 Ont. 603.
3. Armstrong v. Wilson, 60 111. 226; Cook v. Cook, "7 Mass. (11 Gray) 123.
4. Ala. Moses v. Johnson, 88 Ala. 517, 16 Am. St. Rep. 58; Alexander v. Fisher, 7
Ala. 514.
Del. Fleming v. Collins, 2 Del. Ch. 230; Waples v. Waples, 2 Harr. 281.
Ky. Calvert v. Rice, 91 Ky. 533, 34,Am. St. Rep. 240; Loudon v. Warfleld. 5
J. J. Marsh, 196.
Me. Maxwell v. Maxwell, 31 Me. 184, 50 Am. Dec. 657.
Mass. Pynchon v. Stearns, 11 Mete. 304, 45 Am. Dec. 207.
Mich. Clow v. Plummer, 85 Mich. 550.
Miss. Warren Co. v. Cans, 80 Miss. 76, 31 So. 539.
Mo. Proffitt v. Henderson, 29 Mo. 325; Davis v. Clark, 40 Mo. App. 515; Van
Hoozer v. Van Hoozer, 18 Mo. App. 19.
Nebr. Disher v. Disher, 45 Neb. 100, 63 N. W. 368.
N. H. Fuller v. Wason. 7 N. H. 341.
N. Y. Kidd v. Dennison, 6 Barb. 9 ; Elwell v. Burnside, 44 Barb. 447 ; Hawley v.
Clowes, 2 Johns. Ch. 122; Mooers v. Wait, 3 Wend. 104; McCay v.
Wait, 51 Barb. 225; Johnson v. Brownson, 7 Johns. 227,5 Am. Dec. 258.
N. C. Sherrill v. Conner, 107 N. C. 543; Davis v. Gilliam, 5 Ired. Eq. (40 N. C.)
308; Crawley v. Timberlake, 2 Ired. Eq. (37 N. C.) 480.
S. C. Johnson's Admr. v. Johnson, 2 Hill Eq. 277, 29 Am. Dec. 72 ; Hancock
v. Day, McMull. Eq. 69, 36 Am. Dec. 293.
5. Proffitt v. Henderson, 29 Mo. 325; Jackson v. Brownson, 7 Johns. (N. Y.) 227, 5
Am. Dec. 258; Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004.
6. Johnson v. Johnson, 2 Hill (S. C.) 277, 29 Am. Dec. 72.
PRUDENT HUSBANDRY IS THE TEST 47
trees, 1 except that trees which sprout from the stump may
evidently be cut while immature if it has been customary
to handle the woodland as a coppice. 2 Fruit trees 3
and non-timber trees which sustain a special relationship
to the land and are beneficial to the estate, such as willows
protecting the bank of a stream, 4 shade trees, 5 or
ornamental trees, cannot ordinarily be cut by a tenant 6
even though the tenant hold without impeachment for
waste. 7
51 Prudent Husbandry is the Test as to Waste.
Mere failure of a tenant to do the things required by
good husbandry may not be waste, 8 but suffering
a pasture to become overgrown with brush in such
manner as a farmer of ordinary prudence would not per-
mit was considered waste. 9 Allowing cattle or hogs to
injure a meadow or fruit trees would ordinarily be
waste, 10 but not if the tenant had the right to keep
stock and the injury to the trees were the natural
result of the keeping of the stock. n The same rules
1. Honywood v. Honywood, L. R., 18 Eq. 306, 43 L. J. Ch. 652, 30 L. T. Rep. N. S.
671, 22 Wkly. Rep. 749; Hole v. Thomas, 7 Ves. Jr. 589, 6 Rev. Rep. 195; Bagot
v. Bagot, 32 Beav. 509, 8 Jur. N. S. 1022, 33 L. J. Oh. 116, 9 L. T. Rep. N. S.
217, 12 Wkly. Rep. 35; Dunn v. Bryan, Ir. R. 7 Eq. 143; Aston v. Aston, 1 Ves.
264; Brydges v. Stephens, 6 Madd. 279; Clemence v. Steere, 1 R. I. 272, 53 Am.
Dec. 621.
2. Phillips v. Smith, 14 M. & W. 589; Stripping's Case, 22 Vin. Abr. 449, pi. 11;
Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621 ; Patureau v. Wilbert, 44 La.
Ann. 355, 10 So. 782; Cf. Jackson v. Andrew, 18 Johns. (N. Y.) 431; Lashmer
v. Avery, Cro. Jac. 126; Humphreys v. Harrison, 1 Jac. & W. 561.
3. Bewes, Waste, 95; Co. Litt. 53a; Silva v. Garcia, 65 Cal. 591, 4 Pac. 628; Bellows v.
McGinnis, 17 Ind. 64; Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004; Welling
v. Strickland, 161 Mich. 235, 126 N. W. 471; Kaye v. Banks, 2 Dick. 431; Cf.
Anderson v. Hammon, 19 Ore. 446, 20 Am. St. Rep. 832. But removing and
selling nursery stock in regular course of business not necessarily waste. Rob-
inson v. Russell., 24 Cal. 467; Hamilton v. Austin, 36 Hun. (N. Y.) 138.
4. Phillips v. Smith, 14 M. & W. 589.
5. But shade trees in open field which prevent growth of vegetation may be cut as re-
quired by good husbandry. Sayers v. Hoskinson, 110 Pa. St. 473, 1 Atl. 308.
6. Honywood v. Honywood, L. R., 18 Eq. 306 above; Dickenson v. Jones, 36 Ga.
97; Calvert v. Rice, 91 Ky. 533, 16 S. W. 351, 13 Ky. L. Rep. 107, 34 Am. St.
Rep. 240.
7. Stevens v. Rose, 69 Mich. 259, 37 N. W. 305; Clement v. Wheeler, 25 N. H. 361 :
Hawley v. Wolverton, 5 Paige (N. Y.) 522. For many English citations see 40
Cyc. 508, Note 81. See also Am. and Eng. Ency. Law. Vol. 30. p. 256, 257.
8. Richards v. Torbert, 3 Houst. (Del.) 172; Darden v. Cowper, 52 N. C. 210, 75 Arn.
Dec. 461.
9. Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621.
But see Clark v. Hoklen, 7 Gray (Mass.) 8, 66 Am. Dec. 450; Shine v. Wilcox, 1 1
N. C. 631.
10. Warder v. Henry, 117 Mo. 530, 23 S. W. 776; Bellows v. McGinnis, 17 Ind. 64.
11. Fowler v. Johnstone, 8 Tinnes Law R. 327.
48 LEGAL WASTE OF TIMBER
would apply to injuries to young timber trees. The turn-
ing of water into a swamp in such manner as to destroy
the timber has been held not to be waste if the act was one
of good husbandry. 1
There has been a tendency on the part of New England
courts to follow the English common law more strictly
than other American jurisdictions, ane the decisions in
some of those states indicate that any tenant in possession
is entitled only to estovers; 2 and that any extension of
the cultivated portion of a farm, at the expense of the
timberland, even when the greater part of the premises
is woodland, will be considered waste regardless of an in-
crease in the value of the premises as a result of such clear-
ing. 3
52. Special Statutes Permitting or Forbidding the
Cutting of Timber. Early laws in the New England
states made provision for the cutting of timber from lands
held under a tenancy other than fee simple, or by a guar-
dian or administrator, in order to preserve its value. 4
There are now laws in many states authorizing the removal
of growing timber under order of a court from lands held in
dower, curtesy, or other life tenency, or by a guardian or an
administrator. 5 Such laws provide that the proceeds of
the sales shall be administered as realty.
Any cutting not done under authority of an order of a
1. Jackson v. Andrjw, 18 Johns (N. Y.) 431.
2. Ford v. Erskine, 50 Me. 227; White v. Cutler, 34 Mass. (17 Pick.) 248, 28 Am.
Dec. 296; Clark v. Holden, 73 Mass. (7 Gray) 8, 66 Am. Dec. 450; Chase v.
Hazelton, N. H. 171.
3. Pynchon v. Stearns, 52 Mass. (11 Mete.) 304, 45 Am. Dec. 207; Clemence v.
Steere, 1 R. I. 272, 53 Am. Dec. 621; See Landlord and Tenant, T ffany, Ed.
1910, p. 708, Sec. 109 a-2.
4. Me. Act. Feb. 28, 1821, Laws of Me.. Brunswick, 1821, Vol. 1, p. 126.
Mass. Act. Feb. 18, 1819, S. L. 1818, ch. 96. See Gen. Laws Mass., Boston,
1823, Vol. 2, p. 484.
N. H. See Gen. Stat. Manchester, 1867, ch. 182, sec. 6, p. 372.
5. See the following:
Conn. Gen. Stat. 1902, sec. 226 and 241.
Me. Rev. St. 1903, p. 649, sec. 1 (for ward), p. 869, sec. 1-4 (life estates).
Md. Public Gen. Laws 1904, Art. 93, sec. 159.
Mass. Rev. Laws 1902, ch. 146, sec. 19, Vol. 2, p. 1318 (for ward); ch. 134.
sec. 11, Vol. 2, p. 1269 (life estates).
Miss. Annotated Code, 1906, sec. 2418 (1892, sec. 2202.)
N. H. Public Statutes, 1901, Chase, ch. 194, sec. 4, p. 637.
N. C. Revised Laws 1908, Pell, sec. 1790 (guardian may sell.)
R. I. Gen. Laws 1909, p. 871 (any tenancy not in fee simple.)
Va. Code 1904, sec. 2616 and 2620.
CUTTING TIMBER UNDER ORDER OF COURT 49
court, or with the consent of the other parties holding an in-
terest, by a guardian, administrator, tenant, or cotenant,
is forbidden by statute in most American States. l And
in many states there are statutes forbidding the cutting of
timber during the time that land is subject to redemption
except in accordance with the customary use of the land. 2
1. See the following:
Ga. Code 1910, sec. 3695 (tenant), 3724 (tenant in common).
Ida. Rev. Code 190&, Vol. 2, sec. 4530.
Me. Rev. St. 1903, p. 827, sec. 5, cutting by cotenant without notice (treble
damages.)
Md. Cf. Pub. Gen. L. 1904, Art. 93, sec. 194 and 303 (guardian and widow.)
Mich. Cf. Comp. L. 1897, sec. 1116-1122.
Minn. Rev. L. 1905, sec. 4404.
Miss. Code 1906, sec. 2418.
Mont. Rev. Code 1907, sec. 6866.
Neb. Rev. St. 1913, sec. 8252, repairs allowed by tenant; 8523, waste by
tenant.
Nev. Rev. Laws 1912, sec. 5505. See Price v. Ward, 25 Nev. 203, 58 Pac.
849, 46 L. R. A. 459.
Pa. Purdon's Digest, 13th Ed. Stewart, ch. on Waste, sec. 17 and 18.
Utah Compiled Laws 1907, sec. 3507.
Va. Code 1904, sec. 2775-2778.
W. Va. Code 1913, Hogg, sec. 4122-26.
Wis. Statutes, 1915, sees. 3170-3179.
2. See the following:
Ariz. Rev. St. 1901, par. 2583, sec. 27.
Fla. Laws of 1895, ch. 4416; Act June 3, 1907, S. L. ch. 5683.
Minn. Gen. St. 1913, Tiffany, sec. 8089 (waste).
Term. Annotated Code 1896, Shannon, sec. 3820, 3821.
Utah Comp. Laws 1907, sec. 3266.
CHAPTER VI
REMEDIES FOR WASTE
53. Early Common Law Remedies. Under the
early common law the prevention of waste could be effected
only through a writ of estrepement or a writ of prohibition
of waste. The latter was abolished in the year 1285 A. D.
by the statute of Westminster II, and, although the former
is still available in Pennsylvania, : and possibly a few other
jurisdictions, it has generally fallen into disuse both in Eng-
land and America. 2 In modern practice the equitable
remedy of injunction is regularly employed for the accom-
plishment of the purposes once effected through a writ
of estrepement. 3
By the common law satisfaction for injuries which had
actually been committed was obtained through a writ or
action of waste. This was a mixed action which sought
both the recovery of the premises wasted and recovery
of damages. The writ of waste fell into disuse in England
and was abolished in 1834. 4 Although adopted in many of
the older American states and still retained in a few, 5
the writ of waste has generally been superseded in the
United States, the same as in England , by an action on the
case in the nature of waste. 6 The latter action, which is an
action for damages, may be maintained in all cases where
the old writ of waste lay and the principles developed under
the writ of waste have been applied in actions on the case; 7
1. See citations in 40 Cyc. 519, 520, Ed. 1904.
2. See citations in 40 Cyc. 519; and in Am. & Eng. Ency. Law, Vol. 30, p. 273, 2d Ed.
3. See citations in 40 Cyc. 521, Note 63.
4. 3 and 4 Wm. IV, Ch. 27, Sec. 36 (A. D. 1833) ; See Stevens v. Rose, 69 Mich. 259,
37 N. W. 205.
5. Am. & Eng. Ency. Law, 2d Ed., Vol. 30, p. 274; 40 Cyc. 517.
6. Stetson v. Day, 51 Me. 434; Shattuck v. Gragg, 23 Pick. (Mass.) 88; Fay v. Brew-
er, 3 Pick. (Mass.) 203; Roots v. Boring Junction Lbr. Co., 50 Oreg. 298, 92
Pac. 811, 94 Pac. 182; Rogers v. Coal River Boom etc. Co., 41 W. Va. 593, 23
S. E. 919, 26 S. E. 1008; and numerous American and English citations under
note 44, 40 Cyc. 518 and in following pages.
7. Patterson v. Cunliffe, 11 Phila. (Pa.) 564.
50
EARLY AND MODERN REMEDIES AT LAW 51
but the action on the case has a wider use than the old
action of waste had.
Under the common law no one but. a person having an
immediate estate of inheritance could bring the action
of waste. l There must be privity of estates between the
parties to the action. 2 A contingent remainderman could
not maintain an action for waste already committed but
might obtain equitable relief against future waste. The
party bringing the action must have the legal title or a
right to it or be a trustee. Although the estate must be
in the plaintiff at the time of waste to support the action,
it need not continue until the action was brought. Neither
a person having a future life estate, nor a mortgagee, could
bring the action for the reason that the estate of each might
be defeated and thus no injury would be suffered. In some
American states many of the restrictions of the old com-
mon law regarding the action of waste have been removed
by statute. 3 After the passage of the statutes of Marl-
bridge and Gloucester the action might be brought against
tenants for life or years as well as against those estates
which were -created by law, but there is a conflict of opinion
as to the extent to which these two statutes affect proced-
ure in the United States. 4
54. Modern Remedies at Law. The action on the
case for damages, unlike the old writ of waste, may be
maintained where the waste alleged might also form the
basis of an action for a breach of an express covenant or
of a promise implied by law. 5 Although earlier cases
held that action on the case did not he for permissive waste,
1. 40 Cyc. 527; Co. Litt. 218b.
2. Co. Litt. 53b; 2 inst. 301; Foot v. Dickinson, 2 Mete. (Mass.) 611; Bates v.
Shraeder, 13 Johns (N. Y.) 260; Lauder v. Hall, 69 Wis. 331; 1 Washburn Real
Prop. 118.
Cf. Coale v. Hannibal etc. K. R. Co. 60 Mo. 227 (Tenant at will has no action vs.
stranger for fire damage, he not being liable for waste).
3. 40 Cyc. 529.
4. To effect that they are not in force: Moore v. Ellsworth, 3 Conn. 483; Smith v.
Follansbee, 13 Me. 273; Parker v. Chambiiss, 12 Ga. 235; Woodward v. Gates,
38 Ga. 205, 95 Am. Dec. 385; Moss Point Lumber Company v. Board of Sup. of
Harrison County, 89 Miss. 448, 42 So. 290; That they are in force in part or
whole: Dozier v. Gregory, 46 N. C. (1 Jones Law) 100; Sackett v. Sackett, 25
Mass. (8 Pick.) 309; See also Alexandr's British Statutes in force in Maryland,
pp. 46, 83.
5. Moere v. Townshend, 33 N, J. L. 284,
52 REMEDIES FOR WASTE
it seems the rule now that it does lie. * However, it
has been held that it does not lie against a tenant who
converted to his use trees which had been thrown by the
wind. 2 Privity of estate seems to be necessary in a
few jurisdictions, 3 but generally privity is unnecessary
to the maintenance of an action on the case in the nature
of waste. 4 It cannot be maintained by one having
merely a contingent interest. 5 In most jurisdictions the
action may be brought by one having a future estate for
life or years, as well as by one having an estate in fee with
an intervening estate for life or years; 6 and it may be
maintained even against a stranger. 7
55. Statutory Remedies for Waste. In mnay Amer-
ican states there is express statutory provision for the re-
covery of damages for waste committed by a tenant for
life or years, 8 and in some states the statute covers waste
by any tenant of land. It is probable that a tenant from
year to year or month to month would be included within
the purview of a statute applying in terms to a tenant
for years. 9 Even where the statutes of Marlbridge and
Gloucester are held not to be in force and there is no state
statute on the subject, an action of trespass on the case,
or its equivalent code action, will doubtless be available
1. Parrott v. Barney, Deady (U. S.) 409; White v. Wagner, 4 Har. & J. (Md.) 373,
7 Am. Dec. 674; Stevens v. Rose, 69 Mich. 259; Dozier v. Gregory, 1 Jones L.
(46 N. C.) 100.
2. Shult v. Barker, 12 S. & R. (Pa.) 272.
3. Hatch v. Hatch, 1 Ohio Dec. 270; Lauder v. Hall, 69 Wis. 326; Whitney v. Mor-
row, 34 Wis. 644; Foot v. Dickinson, 2 Mete. (Mass.) 611.
4. Dickinson v. Baltimore, 48 Md. 583; Dozier v. Gregory, 1 Jones L. (46 N. C.) 100;
Williams v. Lanier, Bush. L. (44 N. C.) 30; Dupree v. Dupree, 4 Jones L.
(49 N. C.) 387, 69 Am. Dec. 757; Chase v. Hazelton, 7 N. H. 171; Randall v.
Cleaveland, 6 Conn. 328; Robinson v. Wheeler, 25 N. Y. 252; But see, Hunt v.
Hall, 37 Me. 363.
5. Sager v. Galloway, 113 Pa. St. 500.
6. Purton v. Watson, 19 N. Y. St. Rep. 6; Howard v. Patrick, 38 Mich. 795; Mc-
Laughlin v. Long, 5 Har. & J. (Md.) 113; Dozier v. Gregory, 46 N. C. 100.
7. Parrot v. Barney, Deady, U. S. 405, 18 Fed. Cas. No. 10,773a; Randall v. Cleave-
land, 6 Conn. 328; Chase v. Hazelton, 7 N. H. 171 ; Elliott v. Smith, 2 N. H. 430;
Williams v. Lanier, Busb. L. (44 N. C.) 30; See Ripka v. Sergeant, 7 W. & S.
(Pa.) 9, 42 Am. Dec. 214; But to Contrary: Livingston v. Haywood, 11 Johns
(N. Y.) 429; Bates v. Shraeder, 13 Johns (N. Y.) 260, both under N. Y. statute;
and see Livingston v. Mott, 2 Wend. (N. Y.) 605.
8. For statutes see Land. & Ten., Tiffany, Ed. 1910, p. 725 and 726, Vol. 1; and see
Curtiss v. Livingston, 36 Minn. 380; Robinson v. Wheeler, 25 N. Y. 252.
9. Land. & Ten., Tiff., page 726.
ACTION BY LESSOR OR LESSEE 53
for the recovery of damages due to the commission of
voluntary waste by a tenant for life or years. l
56. The Effect of Special Conditions upon the
Form and Time of Action. If a lease contains a cove-
nant by the lessee not to commit waste the landlord has
an option, if waste is committed, of suing on the covenant
or of bringing an action on the case or other action, directly
for the waste. 2 It was held in an Oregon case that if a
tenant has an option under a lease to purchase the premises
leased, no action for waste can be brought until the option
expires, 3 but Tiffany thinks that even though it be held
that the purchase of a reversion by a tenant would con-
stitute a defense to an action for waste, committed before
the purchase, yet the mere existence of an option could
not have this effect. 4 Coke and other authorities hold
that the lessor loses his action for waste if he accepts the
premises when surrendered by the lessee, but a Wyoming
case holds that the lessor's right of action is not thus lost. 5
In a Massachusetts case in which the landlord permitted
a lessee to remain in possession after committing waste
and accepted rent from him, the court held that the land-
lord did not thereby necessarily waive his right to recover
damages for the waste and that the question of waiver was
one for the jury. 6 The right of a lessor to bring an
action in tort for waste is well established 7 and many
court dicta indicate that an action will probably he in
contract for a breach of the implied contract of the lessee to
use the premises leased in a tenant-like manner. 8
1. 4 Kent Comm. 81 ; Randall v. Cleaveland, 6 Oonn. 328; Dozier v. Gregory, 46 N. C.
(1 Jones L.) 100; Yocum v. Zahner 162 Pa. 468, 29 Atl. 778; Thackeray v. Eldl-
gan, 21 R. I. 481, 44 Atl. 689; Moss Point Lbr. Co. v. Harrison County, 89 Miss.
448, 22 So. 290, 873; Greene v. Cole, 2 Saund. 233, Note; Brewer, Waste, 5.
2. Kinlyside v. Thornton, 2 Wm. Bl. 1111; City of London v. Hedger, 18 Ves. Jr. 355;
Marker v. Kenrick, 13 C. B. 188; Moore v. Townshend, 33 N. J. L. 284; Moses
v. Old Dominion Iron & Nail Works Co., 75 Va. 95; Parrott v. Barney, 2 Abb.
197, Fed. Cas. No. 10,773.
3. Powell v. Dayton S. & G. R. Co., 16 Ore. 33, 16 Pac. Rep. 683, 8 Am. St. Rep. 251.
4. Land. & Ten., Tiffany, p. 724; See Dupree v. Dupree, 49 N. C. (4 Jones Law) 387,
69 Am. Dec. 757; Dickinson v. City of Baltimore, 48 Md. 583.
5. Marshall v. Rugg, 6 Wyo. 270, 44 Pac. 486, 33 L. R. A. 679.
6. Chalmers v. Smith, 152 Mass. 561, 26 N. E. 95. 11 L. R. A. 769. See Ashton .v
Golden Gate Lbr. Co. (Calif.) 58 Pac. 1. (Tenant cannot deny title of lessor
while tenancy exists.)
7. Landlord and Tenant, Taylor, Pub. Little, Brown & Co., Boston, Mass. 1904,
9th. Ed. Vol. 1, pp. 211, 212, 229 and Vol. 2, p. 400. Landlord and Tenant,
Tiffany, Pub. Keefe-Davidson Co. St. Paul, Minn. 1910, Vol. 2, p. 2115.
8. See pp. 727-729, Tiffany, Land. & Ten., and notes.
54 REMEDIES FOR WASTE
57. The Remedy Applicable to Tenants at Will.
As has been previously observed tenants at will were not
generally regarded as within the purview of the statutes
of Marlbridge and Gloucester on the ground that acts,
which would constitute waste if done by other classes of
tenants, would constitute trespass if done by tenants at
will. Such trespass would end the tenancy and give rise
to an action for damages against the tenant at will as against
any person guilty of a tort. 1 The proper form of such
action is evidently trespass and not trespass on the case.
58. Damages Recoverable at Law. In an action
for waste the measure of damages will be the harm done
the inheritance. 2 The jury must determine the extent
of the diminution in value of the estate in reversion or re-
mainder by reason of the acts of waste committed and
they cannot consider an increase in the value of the prop-
erty as a result of the unlawful acts in the fixing of the
damages to the inheritance. 3 Under a count in trover in
an action on the case in the nature of waste for the cutting
of timber ^he plaintiff may recover the value of the timber
as appreciated by the wrong-doer's skill and labor; 4
but the extent of the damage to the inheritance resulting
from the cutting of timber is not determined solely by the
value of the wood and timber removed. 5
59. Multiple Damages and Forfeiture Provided
by Statute. Although under the early common law only
single damages were recoverable for waste and no forfeiture
of the estate of the wrong doer could be decreed, the Statute
of Gloucester provided for treble damages and the forfeiture
1. Chalmers v. Smith, 152 Mass. 561; Perry v. Carr, 44 N. H. 118; Phillips v. Covert,
7 Johns (N. Y.) 1; Tobey v. Webster, 3 Johns (N. Y.) 468; Campbell v. Arnold,
1 Johns (N. Y.) 511; Land. & Ten., Tiffany, Ed. 1910, p. 724.
2. Amer. Freehold Land Mortg. Co. .v. Pollard, 132 Ala. 155, 32 So. 630; Evans v.
Kohn, 113 Minn. 45, 128 N. W. 1006; Tate v. Field, 57 N. J. Eq. 632, 40 Atl.
206; Robinson v. Kinne, 1 Thomps. & C. (N. Y.) 60; Kent v. Bentley, 10 Ohio
Cir. Ct. 132, 6 Ohio Cir. Dec. 457; McCullough v. Irvine, 13 Pa. St. 438; Morris
v. Knight, 14 Pa. Super. Ct. 324; Bodkin v. Arnold, 48 W. Va. 10'8, 35 S. E. 980.
3. Van Deusen v. Young, 29 N. Y. 9; Purton v. Watson, 2 N. Y. Suppl. 661 ; Fagan
v. Whitcomb (Tex. App.), 14 S. W. 1018; Hamcien v. Rice, 24 Conn. 350.
4. Harris v. Goslin, 3 Hair. (Del.) 340; But see Nelson v. Churchill, 117 Wis. 10, 93
N. W. 799.
5. Perdue v. Brooks, 85 Ala. 459, 5 So. 126; Disbrow v. Westchester Hardwood Co.,
164 N. Y. 415, 58 N. E. 519 (reversing 17 N. Y. App. Div. 610, 45 N.Y. Suppl.
376); Harder v. Harder, 26 Barb. (N. Y.) 409; Winship v. Pitts, 3 Paige (N.
Y.) 259; But see Worrall v. Nunn, 53 N. Y. 185.
MULTIPLE DAMAGES AND FORFEITURE 55
of the estate. 1 In several of the United States the pro-
visions of the Statute of Gloucester are held to be still
in force. 2 However, forfeiture will be decreed only when
there is wanton voluntary waste, or the injury to the estate
in inheritance is considered equal to the value of the un-
expired term. 3 Forfeiture is not favored 4 and in the
United States, as in England, must be confined to the
particular thing wasted. 5 Thus the cutting of a few
trees in a woodlot has been held not to work a forfeiture
of the whole lot; 6 but the whole would be forfeited if the
cutting were scattered over the lot. 7 A forfeiture may
be waived by the reversioner. 8 Statutes in many Ameri-
can States allow either double or treble damages 9 for
waste and several allow forfeiture. 10 Most of these statutes
are held to be merely supplementary to or confirmatory 11
of the common law rule. However, they are considered
to be penal in nature and will be construed strictly. 12
Some of them say that treble damages "shall" 13 be allowed
1. Roby v. Newton, 121 Ga. 679, 49 S. E. 694, 68 L. R. A. 601; Smith v. Sharpe, 44
N. C. 91, 57 Am. Dec. 574; Richards v. Noble, 3 Meriv. 673, 36 Eng. Reprint
258.
2. Hasty v. Wheeler, 12 Me. 434; Sackett v. Sackett, 8 Pick. (Mass.) 309; Sherrill
v. Conner, 107 N. C. 543, 12 S. E. 588; Willard v. Willard, 56 Pa. St. 119; Robin-
son v. Kinne, 70 N. Y. 147; McCartney v. Titsworth, 119 N. Y. App. Div. 547,
104 N. Y. Suppl. 45; Thurston v. Muston, 23 Fed. Cas. No. 14,013, 3 Cranch
C. C. 335.
3. Roby v. Newton, 121 Ga. 679; Bollonbacher v. Fritts, 98 Ind. 50; Harder v. Harder,
26 Barb. (N. Y.) 409.
4. Willard v. Willard, 56 Pa. St. 119; Phelan v. Boylan, 25 Wis. 679; Woodward v.
Gates, 38 Ga. 205; Sackett v. Sackett 5 Pick. (Mass.) 191; Kent v. Bentley, 6
Ohio Cir. Dec. 457, 10 Ohio Cir. Ct. 132.
5. Chipman v. Emeric, 3 Cal. 273; Smith v. Mattingly, 96 Ky. 228, 28 S. W. 503,
16 Ky. L. Rep. 18; Morehouse v. Cotheal, 22 N. J. L. 521; Jackson v. Tibbitts,
3 Wend. (N. Y.) 341; Coke Litt. 54a.
6. Waples v. Waples, 2 Harr. (Del.) 281; Padelford v. Padelford, 7 Pick. (Mass.) 152.
7. Waples v. Waples, 2 Harr. (Del.) 281; Morehouse v. Cotheal, 22 N. J. L. 521;
Smith v. Sharpe, 44 N. C. 91, 57 Am. Dec. 574.
8. Hickman v. Irvine, 3 Dana (Ky.) 121.
9. See Mich. Comp. Laws 1897, Sec. 11121; Wisconsin St. 1898, Sec. 3176.
10. Del. Rev. Code, 1893, p. 666, Sec. 9; Ky. St. 1903, Sec. 2328; Me. Rev. St. 1903,
Ch, 97, Sec. 1; Neb. Ann. St. 1903, Sec. 1646 (if injury over two thirds value of
tenant's estate); N. J. Gen. St., p. 3749, Sec. 3; N. C. Rev. St. 1905, Sec. 853;
R. I. Gen. Law 1896, Chap. 268, Sec. 1; S. C. Civ. Code, Sec. 2425; Forfeiture
when done maliciously and equal to residue of tenant's estate. See many cita-
under note 830 on p. 736, Tiffany, Land. & Ten. 1910 Ed.
11. Bullock v. Hay ward, 10 Allen (Mass.) 460.
12. Adams v. Palmer, 6 Gray (Mass.) 338.
13. Kentucky St. 1903, Sees. 2328, 2334; Maine Rev. St. 1903, C. 97, Sec. 1; Nebraska
Ann. St. 1907, Sec. 1645; 3 New Jersey Gen. St., p. 3749, Sec. 3; New York Code
Civil Proc., Sec. 1655; Bell & C. St. Oregon Sec. 347; Virginia Code 1904, Sec.
2778 (if waste wanton )
56 REMEDIES FOR WASTE
for waste while others provide that the damages "may" x
be assessed at three times the waste. Under some of them
forfeiture cannot be decreed, 2 and generally the allow-
ance of multiple damages is discretionary with the court
and will be confined to cases of wilful or malicious waste. 3
Double and treble damages cannot be obtained in an equita-
ble action. An action on the case in the nature of waste is
generally used to recover actual damages as a penalty for
the waste. 4
60. Multiple Damage and Forfeiture Statutes
are not Strictly Enforced Against Co-tenants. The
cutting down of trees by one tenant in common to the
injury of his co-tenant constitutes waste for which an
action on the case or the statutory action regarding waste
may be brought. 5 Double and treble damages have been
allowed 6 against a co-tenant, but the courts show a re-
luctancy to apply this rule where property is held in com-
mon 7 and where, subsequent to the enactment of a statute
giving treble damages for waste, a statute gave to co-
tenants all existing remedies against a tenant cutting with-
out notice, it was held that the last act did not extend the
first act to property held in common. 8 It has also been
1. California Code Civ. Proc., Sec. 732; Idaho Code Civ. Proc. 1901, Sec. 3374; Minn-
Rev. Laws, 19O5, Sec. 4447; Montana Rev. Code 1907, Sec. 6866; Nevada
Comp. Laws 1900, Sec. 3347; N. Car. Rev. St. 1905, Sec. 7539; North Dakota
Rev. Codes 1905, Sec. 753; So. Dakota Code Civ. Proc., Sec. 693; Utah Comp.
Laws 1907, Sec. 3507.
2. Chipman v. Emeric, 3 Cal. 273 ; See p. 736 of Tiffany's Land. & Ten.
3. Isom v. Book, 142 Cal. 666, 76 Pac. 506; Isom v. Rex Crude Oil Co., 140 Cal. 678,
74 Pac. 294; Sherrill v. Conner, 107 N. C. 543, 12 S. E. 588.
4. Shields v. Lawrence, 72 N. C. 43.
5. Novels v. Ky. Lbr. Co., 108 Ky. 550, 56 S. W. 969, 22 Ky. L. Rep. 247, 94 Am. St.
Rep. 388, 49 L. R. A. 416; Elwell v. Burnside, 44 Barb. (N. Y.) 447; Hawley v.
Clowes, 2 Johns (N. Y.) 122; Johnson v. Johnson, 2 Hill Eq. (S. C.) 277, 29
Am. Dec. 72; Dodge v. Davis, 85 Iowa 77, 52 N. W. 2; Sheppard v. Pettit, 30
Minn. 119, 14 N. W. 511; Dodd v. Watson, 57 N. C. 48, 72 Am. Dec. 577;
Bradley v. Reed, 2 Pittsb. (Pa.) 519; Cf. Darden v. Cowper, 52 N. C. 210, 75
Am. Dec. 461, action for accounting; See 30 Am. & Eng. Ency. Law 294.
6. Mills v. Richardson, 44 Me. 79; Dwinell v. Larrabee, 38 Me. 464; Clow v. Plum-
mer, 85 Mich. 550, 48 N. W. 795; Wheeler v. Carpenter, 107 Pa. St. 271; See
also Cyc. 38, p. 89, 90.
7. Smith v. Sharpe, Busb. L. (44 N. C.) 91, 57 Am. Dec. 574.
8. Central Trust Co. v. N. Y. Equipment Co., 87 Hun. (N. Y.) 421, 34 N. Y. Suppl.
349; Wheeler v. Carpenter, 107 Pa. St. 271.
INJUNCTION TO PREVENT WASTE 57
held that a general statute for an accounting may not be
applicable in a case of waste between co-tenants. l
61. The Use of Injunction for the Prevention of
Waste. As a remedy for waste injunction has not only
generally taken the place of the writ of estrepement and
the common law action of waste, but it has also to a large
extent superseded the common law action on the case for
damages. 2 The use of the remedy is no longer confined to
cases founded on privity of title. 3 and will be granted
against a trespasser 4 where irreparable injury is threatened.
Even though a statute gives a remedy at law injunction
may be used if the legal remedy is not adequate. 5
Where there is privity of title it is probably unnecessary
for the applicant to show irreparable injury to the inheri-
tance or insolvency of the tenant to entitle him to the
remedy of injunction, but if the parties are stangers or
claim adversely mo^t courts require a very clear showing
that the injury will be irreparable 6 and that there is not
an adequate remedy at law. 7 If upon the facts stated in
the application for an injunction the applicant has an ade-
1. Cecil v. Clark, 47 W. Va. 402, 35 8. E. 11, 81 Am. St. Rep. 802.
See Lumber Co. v. Lumber Co. (Ky.) 64 8. W. 652 (Tenant in common can coa-
vey nothing less than full undivided interest; action in equity) Sullivan v.
Sherry, (Wis.) 87 N. W. 471 (Cutting of timber by licensee of cotenant such
ouster as to justify trespass or trover.)
2. Georges Creek Coal etc. Co. v. Detmold, 1 Md. Ch. 371 ; Poertner v. Russell, 33
Wis. 193.
3. Powell v. Cheshire, 70 Ga. 357, 48 Am. Rep. 572; Attaquin v. Fish, 5 Mete. (Mass.)
140; Leighton v. Leighton, 32 Me. 399; Duvall v. Waters, 1 Bland. 569, 18 Am.
Dec. 350; Kane v. Vanderburgh, 1 Johns Ch. 11; Garth v. Cotton, 3 Atk. 751,
26 Eng. Reprint 1231, 1 Ves. 524, 546; 27 Eng. Reprint 1182, 1196.
4. Del. Fleming v. Co.lins, 2 Del. Ch. 230.
Ga. Bingham v. Over-street, 128 Ga. 447, 57 S. E. 484, 10 L. R. A. N. S. 452,
11 Ann. Cas. 75; Markham v. Howell, 33 Ga. 508; Smith v. City of Rome,
19 Ga. 89, 63 Am. Dec. 298.
111. Palmer v. Young, 108 111. App. 252.
Md. Georges Creek Coal etc. Co. v. Detmold, 1 Md. Ch. 371 .
N. J. Scudder v. Trenton Delaware Falls Co., 1 N. J. Eq. 694, 23 Am. Dec. 756.
N. Y. Rodgers v. Rodgers, 11 Barb. 595; Stevens v. Beckman, 1 Johns Ch. 318;
People v. Alberty, 11 Wend. 160; Kane v. Vanderburgh, 1 Johns 11.
S. C. Crawford v. Atlantic Coast Lumber Corp., 77 S. C. 81, 57 S. E. 670.
Eng. Hanson v. Gardiner, 7 Ves. Jr. 305, 32 Eng. Reprint 125; Mitchell v. Dors,
6 Ves. Jr., 147, 31 Eng. Reprint 984- Courthope v. Mapplesden, 10 Ves.
Jr. 290, 32 Eng. Reprint 856.
5. Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004; Harris v. Thomas, 1 Hen. & M.
(Va.) 18. ^
C. Timber case, Green v. Keen, 4 Md. 98; Cf. Atkins v. Chilson, 48 Mass. (7 Mete.)
398, 41 Am. Dec. 448.
7. Brown v. Niles, 165 Mass. 2 6, 43 N. E. 90; Cutting v. Carter, 4 Hen. & M
.Va.) 24.
58 EEMEDIES FOR WASTE
quate remedy at law for the injury which has been or will
be suffered an injunction will not be granted. l Although
it is not necessary that the complainant be in possession
of the premises he must ordinarily be able to show a good
title to the premises upon which waste is being committed
or as to which it is apprehended. If the defendant is in
possession and claiming adversely or the complainant's
title is otherwise doubtful, an injunction will not ordi-
narily be granted. However, even in such cases it is within
-the discretion of the court to intervene if the character of
the waste or the irresponsibility of the defendant be such
that the complainant will not have an adequate remedy
at law. Thus the court will enjoin irreparable injury to the
property pending a determination of the title of the com-
plainant.
62. Injunctions are Granted Liberally in Modern
Practice. Injunctions to restrain waste have been granted
not only where the estate of the injured party is entirely
equitable, but even where it is legal if no action at law
can be maintained. Threatened acts which are not in-
consistent with the legal rights of a tenant but which will
manifestly injure the inheritance will be restrained as
equitable waste, in modern practice. 2 Proof of one in-
stance of substantial waste intentionally committed, 3
or of slight waste under conditions clearly indicating an
intention 4 on the part of the tenant or trespasser to do
more will entitle the complainant to an injunction. Al-
though injunction has been granted where waste was threat-
ened but none actually committed prior to the issuance
1. Poindexter v. Henderson, Walk. (Miss.) 176; Cutting v. Carter, 4 Hen. & M.
(Va.) 424; Lefforge v. West, 2 Ind. 514; See 30 Am. & Eng. Ency. Law, p. 2,s5.
2. See Stevens v. Rose, 69 Mich. 259; Buncombe v. Felt, 81 Mich. 332; Crove v. Wil-
son, 65 Md. 479, 57 Am. Rep. 343.
3. Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 601 ; Same as to equitable waste. Coffin v.
Coffin, 6 Madd. 17, 56 Eng. Reprint 995.
4. Livingston v. Reynolds, 26 Wend. (N.Y.) 115; Rodgers v. Rodgers, 11 Barb.
(N. Y.) 595; Loudon v. Warfleld, 5 J. J. Marsh (Ky.) 196; Barry v. Barry. 1
Jac. & W. 651, 37 Eng. Reprint 516; See Webster v. Peet, 97 Mich. 326, 56 X. W.
558.
59
of the writ, l mere apprehension 2 on the part of the
complainant that waste will be permitted, without satis-
factory proof that it may reasonably be expected, will not
be accepted by the courts as ground for an injunction.
Injunction will be refused if the acts complained of are
trivial or amount only to meliorating waste, 3 and the ap-
plication must allege facts showing that further acts of
waste may reasonably be apprehended. 4
63. An Equity Court may even Redress Past In-
juries after its Jurisdiction Attaches. Equity will
ordinarily interfere only to prevent future waste, and only
under special circumstances will cognizance be taken of
waste already committed. This is upon the theory that
the complainant has an adequate remedy in law for the
waste already committed. However, where an equity
court entertains the request for an injunction to prevent
future waste it may also decree an account and satisfaction
for waste already committed in order to prevent a multi-
plicity of suits 5 provided there exists a right in equity
1. Ala. Lyon v. Hunt, 11 Ala. 295, 46 Am. Dec. 216.
Ga. Dickinson v. Jones, 36 Ga. 97.
111. Palmer v. Young, 108 111. App. 252.
Ind. White Water Valley Canal Co. v. Comegys, 2 Ind. 469.
Ky. Loudon v. Warfleld, 5 J. J. Marsh 196; Calvert v. Rice, 11 Ky. L. Rep.
1001, 12 K. L. Rep. 252.
Md. Duvall v. Waters, 1 Bland. Md. 569, 18 Am. Dec. 350.
Mich. Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004.
Neb. Hayman v. Rownd, 82 Neb. 598, 118 N. W. 328.
Ore. Sheridan v. McMullen, 12 Ore. 150.
Wash. Arment v. Hensel, 5 Wash. 152, 31 Pac. 464.
Wis. Poertner v. Russell, 33 Wis. 193.
U. S. Poor v. Carleton, 3 Summ. 70.
Eng. Gibson v. Smith, 3 Ath. 182, 26 Eng. Reprint 514; Jackson v. Cator, 5 Ves.
Jr. 688, 31 Eng. Reprint 806.
2. Kidd v. Dennison, 6 Barb. (N. Y.) 9; Campbell v. Allgood, 17 Beav. 623, 51 Eng.
Reprint 1177.
3. Butts v. Fox, 107 Mo. App. 370, 81 S. W. 493; Brown v. Niles, 165 Mass. 276, 43
N. E. 90; Hubble v. Cole, 85 Va. 87, 7 S. E. 242; Barry v. Barry, 1 Jac. & W
651, 37 Eng. Reprint 510; Meux v. Cobley (1892) 2 Ch. 253; Doherty v. Allnvm,
3 App. Cases 709; Grand Canal Co. v. McNamee, 29 L. R. Ir. 131; But see
Duvall v. Waters, 1 Bland. (Md.) 569, 18 Am. Dec. 350; Cf. People v. Mar-
quette Co., Cir. Judge, 38 Mich. 244.
4. Green v. Keen, 4 Md. 98; Rodgers v. Rodgers, 11 Barb. (N. Y.) 595; Perkins v.
Collins, 3 N. J. Eq. 482; Leavenworth v. Plunkett, 7 La. 341; Crockett v.
Crockett, 2 Ohio St. 180; St. Clair v. Sedgwick, 39 Neb. 562, 58 N. W. 185;
Jackson v. Cator, 5 Ves. Jr. 688; Hext v. Gill, 7 Ch. App. 699; Bewes, Waste,
340.
5. Jesus College v. Bloom, 3 Atk. 262; Winship v. Pitts, 3 Paige (N. Y.) 259; Fleming
v. Collins, 2 Del. Ch. 230; Ackerman v. Hartley, 8 N. J. Eq. (4 Halst) 476; Arm-
strong v. Wilson, 60 111. 226; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411;
Disher v. Disher, 45 Neb. 100, 63 N. W. 368, under code.
60 REMEDIES FOR WASTE
to relief for the waste already committed which is
independent of the ground upon which the applicant is
entitled to an injunction to restrain future waste. Relief
for waste already committed cannot be granted in equity
if the injunction is refused, 1 except in a case involving
equitable waste where the relief as to past injury rests upon
the ground that there is no adequate remedy in law for such
injury. An injunction will even be granted against waste
by a co-tenant when necessary to prevent irreparable in-
jury to the common property, especially upon a showing
that the wrong doer is insolvent. -
64. Injunctions regarding Timber. The cutting of
timber will ordinarily be considered such a destruction of
the inheritance as to justify the granting of an injunction. 3
1. Jesus College v. Bloom, 3 Atk. 263; Smith v. Cooke, 3 Atk. 378; Gent v. Harrison,
Johns 517; Parrott v. Palmer, 3 Mylne & K. 632; Crockett v. Crockett, 2 Ohio
St. 180; Winship v. Pitts, 3 Paige (N. Y.) 259.
2. See Real Prop., Tiffany, Sec. 257, Note 274, p. 580; Am. & Eng. Ency. Law, Vol.
30, p. 294.
3. Ala. Thomas v. James, 32 Ala. 723.
Cal. Halleck v. Mixer, 16 Cal. 574; Natoma Water etc. Co. v. Clarkin, 14 Cal.
574.
Fruit Tree 5: Silva v. Garcia, 65 Cal. 591, 4 Pac. 628.
Del. Fleming v. Collins, 2 Del. Ch. 230.
Ga. Enterprise Lumber Co. v. Clegg, 117 Ga. 901, 45 S. E. 281; Jones v. Gam-
mon, 123 Ga. 47, 50 S. E. 982; Powell v. Cheshire, '70 Ga. 357, 48 Am.
Rep. 572; Camp v. Dixon, 38 S. E. 71.
Ind. Thatcher v. Humble, 67 Ind. 444; Owens v. Lewis, 46 Ind. 488, 15 Am.
Rep. 295.
Iowa. Palmer v. Butler, 36 Iowa 583.
Ky. Peak v. Hayden, 3 Bush. 125; McDowell v. Wiseman, 3 Ky. L. Rep. 332.
La. De la Croix v. Villere, 11 La. Ann. 39.
Md. Fulton v. Harman, 44 Md. 251 ; Shipley v. Ritter, 7 Md. 408, 61 Am. Dec.
371.
Mich. Collins v. Rea, 86 N. W. 811 (In favor of mortgagee.)
Minn. But man v. James, 34 Minn. 547.
Mo. Powell v. Canady, 95 Mo. App. 713, 69 S. W. 686; Palmer v. Crisle, 92 Mo.
App. 510.
N. J. Piper v. Piper, 38 N. J. Eq. 81; Chenango Bank v. Cox, 26 N. J. Eq. 452;
Shreeve v. Black, 4 N. J. Eq. 177; but see Kerlin v. West, 4 N. J. Eq. 449.
N. Y. Relyea v. Beaver, 34 Barb. 547; Kidd v. Dennison, 6 Barb. 9; Herring v.
Dean of St. Pauls, 2 Wils. Ch. 1.
Pa. Smith's Appeal, 69 Pa. St. 474; Kerns v. Harbison, 1 Chest. Co. Rep. 506;
Echert v. Ferst, 10 Phila. 514.
S. C. Shubrick v. Guerard, 2 Desauss, Eq. 616.
Vt. Smith v. Rock, 59 Vt. 232, 9 Atl. 551 ; Smith v. Pettingil, 15 Vt. 82, 40 Am.
Dec. 667.
Va. Bruce v. John L. Roper Lbr. Co., 87 Va. 381, 13 S. E. 153, 24 Am. St. Rep.
657.
Wash. Arment v. Hensel, 5 Wash. 152, 31 Pac. 464; Colwell v. Smith, 1 W. T. 92.
W. Va.Fluharty v. Mills, 49 W. Va. 446, 38 S. E. 521.
Wis. Bunker v. Locke, 15 Wis. 636.
U. S. King v. Campbell, 85 Fed. 814; King v. Stuart, 84 Fed. 546; U. S. v. Gug-
lard, 79 Fed. 21; Wood v. Braxton, 54 Fed. 1005.
(Footnote 3 continued on next page)
INJUNCTIONS REGARDING TIMBER 61
In some cases the court has rested the relief upon the par-
ticular relationship of the trees to the enjoyment of the
premises on which they stand or of other property held by
the plaintiff. ! Injunction has been allowed on the ground
that the cutting would defeat the purpose for which
the t^ees had been grown, such as for a sugar orchard 2
and refused where the injury alleged would result from a
use which accorded with the purpose for which they
were adapted. :! Cutting trees from land valuable only
or chiefly for the timber upon it was held in New Jersey
not to constitute the irreparable injury required to sup-
port an injunction, l but a Federal court has held to
the contrary. 5 The remedy will not be granted as a
matter of course 6 and it has frequently been refused
where the complainant failed to show that the injury
which would result from the cutting would be irre-
parable, 7 or where it did not appear that the trees
had any special or peculiar value. s
(Footnote 3 concluded from preceding page)
Eng. Gilmour V. Maurvit, 14 App. Cas. 045, 59 L. J. P. C. 3S, L. T. Rep.
X. S. 442 (Allirming 33 L. C. Jur. 231, 3 Montreal Q. B. 449). Usborne
v. Usborne, 1 Dick 75; Hippesley v. Spencer, 5 Madd. 422; King v.
Smith. 2 Hare 239.
.Set! Humphrey v. Harrison, 1 Jac. & \V. 501; Harper v. Alpin, 54 L.T.X.S. 3S3
Can. McLean v. Burton, 24 Grants Ch. (U. C.) 134; Wight man v. Fields, 19
Grants Ch. (I". C.) 559; McDougall v. Grignon, 15 Quebec Super. Ct.
5:55. .S'cti Robins v. Porter, 2 Can. L. J. 230.
1. Powell v. Cheshire, 70 Ga. 357, 4S Am. Rep. 572, shade trees; M usch v. Uurkhart.
S3 Iowa 301, IS X. W. 1025, 32 Am. St. Rep. 305, 12 L. R. A. 4S4;
Davis v. Reed, 14 Md. 152; Grillith v. Hilliard, 04 Vt. 043, 25 All. 427, char-
coal plant: Camp v. Dixon, 112 Ga. S72, 37 S. K. 71, 52 L. R. A. 755; But see
Heaney v. Uutte, etc. Commercial Co., 10 Mont. 590, 27 Pac. 379.
2. Clendening v. Old, US Ind. 40, 20 X. E. 039; Smith v. Rock, 59 Vt. 232, 9 All. 551.
3. Carney v. Hartley, 32 Fla. 344, 14 So. 4, 37 Am. St. Rep. 101, 22 L. R. A. 233;
Gause v. Perkins, 50 X'. C. 177, 09 Am. Dec. 72S.
4. West v. Walker, 3 X. J. E<[. 279.
5. Wood v. Braxton, 54 Fed. 1005.
0. But see Markham v. Howell, 33 Ga. 50S; Smith v. Rome, 19 Ga. S9. 03 Am. Dec. 29S.
See St. Regis Paper Co. v. Santa Clara Lbr. Co., (57 X". Y. Suppl. 1 19 (1900.)
(Court will not unnecessarily assume responsibility of business enterprises.)
7. -"la. Wood ford v. Alexander, 35 Fla. 333, 17 So. 05S.
Morgan v. Baxter, 113 Ga. 144, 3S S. 10. 111.
Smith v. "Weldon, 73 Ind. 454.
ovva. Cowles v. Shaw, 2 Iowa 490.
ii. Jordan v. I'pdegralf, McCahon 103.
Hillman v. Hurley, S2 Ivy. 020.
Miss. Blewitt v. Vaughn, 5 How. 41S.
X. J. Cornelius v. Post, 9 X. J. Kq. 190.
X. Y. Grillin v. Winne, 79 X. Y. 037; Van Rensaelaer v. Griswold. 3 X. Y. Leg.
Obs. 94 (Wild lands); Stevens v. Bcekman, 1 Johns Ch. 3 IS.
N. C. Thompson v. McNair, (52 N. C. 121.
W.Va. Cox. v. Douglass, 20 W. Va. 175. Kng. Atty-Geu'l v. Hallett, 10 L. J.
Kxch. 131. Hi M. & W. 509.
s. Hatcher v. Hampton, 7 Ga. 49; Powell v. Rawlings, 3S Mich. 239.
62 REMEDIES FOR WASTE
Where the title to the timber was in the complainant
but the title to the land in another a Florida court refused
an injunction, l but a California case announced the con-
trary view; 2 and where the applicant for an injunction
urged that there was a mistake in the contract of sale under
which the defendant claimed the right to cut the trees, but
the contract was not ambiguous in terms, a Georgia court
refused to grant an injunction when no suit was pending. 3
Injunctions .against the cutting of timber have been granted
to prevent a multiplicity of suits. 4 Although damages
for such injury may be recovered at law, injunctions will
be granted to prevent the destruction of ornamental, shade
and fruit trees, 5 regardless of whether the trees were
planted or grew naturally. The extent to which injunction
against the cutting of timber will be granted is regulated
by statute in some states. 6 In accordance with the gen-
eral principle that where there is an adequate legal remedy
injunction should not issue most courts will refuse to en-
join the removal of trees which have been cut down. 7
But if timber has been cut after the issuance of a restrain-
ing order but before service thereof its removal will be en-
joined, 8 and where injunction lies to restrain further cutting
1. Doke v. Peek, 45 Fla. 244, 34 So. 896.
2. Sears v. Ackerman, 138 Cal. 583, 72 Pac. 171.
3. Swindell v. Saddler, 122 Ga. 15, 49 S. E. 753.
4. Owens v. Lewis, 46 Ind. 488, 15 Am. Rep. 295; O'Hara v. Johns, 7 Ky. L. Rep.
296; Echert v. Ferst, 10 Phila. (Pa.) 514; King v. Stuart, 84 Fed. 546.
5. Cal. Silva v. Garcia, 65 Cal. 591, 4 Pac. 628.
111. Smith v. Price, 39 111. 28, 89 Am. Dec. 284.
Md. Shipley v. Ritter, 7 Md. 408, 61 Am. Dec. 371.
Xeb. "Sapp v. Roberts, 18 Neb. 299, 25 N. W. 96.
N. J. Tainter v. Morristown, 19 N. J. Eq. 46.
Vt. Smith v. Pettingill , 15 Vt. 82, 40 Am. Dec. 667.
Wis. Wilson v. Mineral Point, 39 Wis. 160.
6. Fla. McDonald v. Padgett, 46 Fla. 501, 35 So. 336; Doke v. Peet, 45 Fla. 244.
34 So. 896; McMillan v. Wiley, 45 Fla. 487, 33 So. 993; Louisville, etc.
R. Co. v. Gibson, 43 Fla. 315, 31 So. 230.
Ga. Swindell v. Saddler, 122 Ga. 15, 49 S. E. 753; Wiggins v. Middleton, 117
Ga. 162, 43 S. E. 432; Powell v. Brinson, 120 Ga. 36, 47 S. E. 499: \\l\-
cox Lumber Co. v. Bullock, 109 Ga. 532, 35 S. E. 52; Camp v. Dixon,
111 Ga. 674,36 S. E. 878.
N. C. John L. Roper Lbr. Co. v. Wallace, 93 N. C. 22; Kistler v. Weaver, 135
X. C. 388, 47 S. E. 478.
7. Miss Xorth Lumber Co. v. Gary. 83 Miss. 640, 36 So. 2. X. J. Worthington
v. Moon, 53 N. J. Eq. 46, 30 Atl. 251. N. Y. Van Wyck v. Alliger, 6 Barb.
507; Spear v. Cutter, 5 Barb. 486, 4 How. Pr. 175, 2 Code Rep. 100; Winship
v. Pitts, 3 Paige 259; Watson v. Hunter, 5 Johns Ch. 169, 9 Am. Dec. 295;
Johnson v. White, 11 Barb. 194; Cf. Disbrow v. Westchester Hardwood Co.,
17 X. Y. App. Div. 610, 45 X. Y. Suppl. 376.
8- King v. Campbell, 85 Fed. 814.
INJUNCTION AGAINST VENDOR 'OR PURCHASER 63
an accounting may be decreed for that already cut. 1
Where defendants were insolvent and the timber which
had been cut constituted a principal part of the security,
a mortgagee has been granted an injunction against the
removal of timber already severed. - On similar ground
creditors have been permitted to restrain the removal of
timber by heirs of a deceased debtor :i and a trespasser
has been enjoined from removing timber pending a suit
for the determination of the plaintiff's title to the land from
which it had been cut. '
65 Injunction Against the Cutting of Timber
by a Vendor or Purchaser under an Executory Con-
tract. A vendor of land remaining in possession after
the execution of a contract of sale will be liable for
waste in the cutting of trees, except in reasonable quantity
for estovers, or under an express or implied agreement or
license from the purchaser, :> and by an injunction the
latter can restrain an unauthorized cutting. G A judg-
ment debtor may be enjoined from committing waste in
the cutting of trees from the attached land. 7
While a contract for the purchase of land is executory, a
purchaser in possession is an equitable owner occupying a
position similar to a mortgagor in possession in a jurisdic-
tion where the equitable theory of a mortgage prevails.
Such a purchaser may ordinarily cut timber provided such
action does not imperil the security of the vendor for the
payment of the contract price. 8 It has been held that a
reservation of title to timber by a vendor until full pay-
ment for the timber was made operated only as a security
and the vendor could not sell the timber to another. ''
1. Fleming v. Collins. '2 Del. Cli. !':{(); Wcat herby v. Wood, 29 How. Pr. (X. Y.) 401.
2. Terry v. Robbins, 122 Fed. 725.
:{. Tessier v. Wise. :< Bland. (Md.) 2S.
I. Staples v. Rossi, 7 Ida. (US, (15 I'ac. (i7.
5. Smith v. Forbes SO Miss. 141, 42 So. :<S2 (held liable for statutory penalty. 1
But see Crawley v. Timberlake :57 X. C. 4IH) (clearing permitted in accord with
custom.)
<>. Ilolmberi; v. Johnson, 45 Kan. 197, 25 Pae. 575.
7. Camp v. Hates, 11 Conn. 51, 27 Am. Dec. 707: Moulton v. Stouel Iti \. II. L'L'! :
Jones v. Brit toil 102 X. C. Kit!, 9 S. K. 554, 4 L. R. A. I7S; See also Vaiidermark
v. Sehoonmaker 9 Hun. (X. Y.) Hi and Witmer's appeal 15 Pa. St. 455 SI Am.
Dee. 505.
S. Van Wyck v. Alli^er (> Barb. (X. Y.) 507. Lalinhlin v. Xortli Wisconsin Lumber
Co. 17(i Fed. 772. See also Moreton v. Reese. Wright (Ohio) :{S1.
9. IJruh-y v. Garvin 105 Wis. 025, 81 X. W. KK5S, 48 I,. R. A. s:$9.
64 REMEDIES FOR WASTE
Where the purchaser has no right to possession, l or where
he is in possession merely by the acquiescence of the ven-
dor, 2 he can take timber only with the consent of the
vendor.
Contracts for the sale of timber, or of land chiefly valuable
for its timber, often provide that there shall be no cutting
of timber until payment is made; 3 that none is to be cut
except for fuel or repairs ; 4 that proceeds of timber cut is
to be applied toward payment of the purchase price; 5
that there shall be no cutting after default in payments, 6
or that the purchaser shall hold as a tenant of the vendor. 7
If any of these restrictions is in the contract, an injunction
to retrain waste will be granted upon a violation of the
agreement. If the contract of sale authorizes the purchaser
to cut timber without restriction, the vendor cannot obtain
an injunction to restrain the cutting even though his se-
curity is imperiled. 8
Grounds for a Refusal of an Injunction. The
refusal of courts to grant injunctions to restrain the cutting
of timber on the ground that there is an adequate remedy
at law; 9 that the injury is merely threatened; 10 that
the plaintiff has shown no title; 11 or that the insolvency
of the defendant has not been averred or proved; 12 has
to a large extent been overcome by statutes which authorize
the issuance of injunctions upon a showing of certain facts
and the giving of a bond, without an establishment of the
1. Phinney Land Co. v. Collidge-Schussler Co. 97 Minn. 20*. iOo N. W. 5o3.
2. Cook v. Doolittle 5 Hun (N. Y.) 342. cf. Brewer v. Craig, 18 N. J. L. 214.
3. Gumaer v. White Pine Lumber Co. 11 Idaho 591, 83 Pac. 771.
4. Lesser v. Dame, 77 Miss. 798, 26 So. 961.
5. Willis v. Adams, 66 Vt. 223, 28th Atl. 1033.
6. Nelson v. Graff, 12 Fed. 389.
7. Huddleston v. Johnson, 71 Wis. 336, 37 N. W. 407. cf. Jennison v. Stone, 33 Mich.
99.
8. Hoile v. Bailey 58 Wis. 434, 17 N. W. 322.
9. Powers v. Heery, R. M. Chart. (Ga.) 523; Davis v. Reed, 14 Ind. 152; Green v.
Keen, 4 Md. 98; Hamilton v. Ely 4 Gill. (Md.) 34; Bogey v. Shute 1 Jones EQ
(54 N. C.) 180; Thompson v. Williams 1 Jones Eq. (54 N. C.)176.
10. Griffin v. Whine 10 Hun (N. Y.) 571.
11. Wearin v. Munson 62 Iowa 466; See also Small v. Slocumb 112 Ga. 279, 81 Am.
St. Rep. 50; Cox v. Douglass 20 W. Va. 175.
12. Hihn v. Peck 18 Cal. 640; Gause v. Perkins 3 Jones Eq. (56 N. C.) 177, 69 Am.
Dec. 728; McCormick v. Nixon 83 N. C. 113. Dunkart v. Rhinehart 87 N. C.
224.
INJUNCTION AS TO PUBLIC LANDS 65
insolvency of the defendant or the irreparable character
of the injury. l
67. Injunction is Available for the Protection of
Public Timber. The United States enjoys the
same rights as a private individual in the protection of its
property, 2 and the remedy of injunction is available to
the United States in the prevention of timber trespass on
public lands. 3
1. See citations under note 6 p. 62. Kla. General Statutes, 1906, Sec. 1919. Ga. Code of
1S95, Sec. 4927 and 4928. If PI. shows title and gives bond, need not show in-
solvency of clef, or irreparable injury. Minn. General Statutes, Tiffany, 1913.
Sec. 8089. X. C. Revised Laws, Pell, 1908, Vol. 1 Sees. 807 to 809, not neces-
sary to allege insolvency. Tenn. Code, Shannon, 1896, Sec. 3820, 3821. Wash.
Codes & Statutes, Remington & Ballinger, 1910, Sec. 941.
2. U. S. v. Lee, 106 U. S. 222. Dugan v. U. S. 3 AVheaton 181. Stephenson v. Little
et al. 10 Mich. 433. 1 Opin. Atty. Gen. 471, May 27, 1821: 2 Op. Atty. Gen.
575, Aug. 22, 1833.
3. Erhardt v. Boaro et al. 113 U. S. 537. U. S. v. Gear 3 Howard 120. Nichols v.
Jones et al. 19 Fd. 855. Wilson v. Rockwell et al. 29 Fed. 674. LeRoy v.
Wright et al. 4 Sawyer 530 (Cir. Ct. of Cal.)
See Teller v. U.S. 113 Fed. 463, 51 C. C. A. 297 injunction refused where it
was urged l.he injunction would do no harm but no affirmative reason for its
issuance was shown.
CHAPTER VII
CIVIL LIABILITY FOR TRESPASS UPON TIMBER
AND FOR THE CONVERSION OF TIMBER
PRODUCTS.
68. Trespass upon Realty. Every unauthorized en-
try upon the land of another constitutes trespass, 1 and the
'offense will be established though the actual injury shown
be only slight, 2 or even though no damage whatever be
proven. 3 In an action for trespass it is not necessary that
the plaintiff prove an unlawful intent on the part of the
defendant. The defendant may be liable for trespass
even though his action were due to a mistake of fact, or
a mistake of law. 4 Thus a timber trespass may be due to
misunderstanding as to the description of the land, as to
the boundaries or as to the rights of the plaintiff or the
defendant regarding the land or timber, 5 and actual dam-
ages may be recovered even when the trespass was not
wilful. 6 The burden of proving the act unintentional
rests upon defendant. 7 However, only nominal damages
1. Tubbs v. Lynch, 4 Harr. (Del.) 521; Pfeiffer v. Grossman, 15 111. 53 Hatch v.
Donnell, 74 Me. 163; Brown v. Manter, 22 N. H. 468; Barneycastle v. Walker,
92 N. C. 198 (wrongful entry by landlord); Dougherty v. Stepp, 18 N. C. 371;
Norvell v. Gray, 1 Swan (Tenn.) 96; Ripy v. Less (Civ. App. 1909), 118 S. W.
1084 (Texas) ; See 46 Cent. Dig. tit. "Trespass," Sec. 10.
2. Postal Tel. Cable Co. v. Kuhnen, 127 Ga. 20, 55 S. E. 967; Keirn v. Warneld, 60
Miss. 799; For other citations see 38 Cyc. 995, Note 15.
3. For citations of cases in many states see 38 Cyc. 995, Note 15, Ed. 1911.
4. Mistake, generally: Mishler Lumber Co. v. Craig, 112 Mo. App. 454, 87 S. W. 41;
As to land: Quillen v. Betts, 1 Pennew (Del.) 53, 39 Atl. 595; Cahill v. Harris,
6 D. C. 214; As to boundaries, Gosdin v. Williams, 151 Ala. 592, 44 So. 611;
Jeffries v. Hargis, 50 Ark. 65, 6 S. W. 328; Atlantic etc. Consolidated Coal Co. v.
Maryland Coal Co., 62 Md. 135; Blaen Avon Coal Co. v. McCulloch, 59 Md.
403, 43 Am. Rep. 560; Chase v. Clearfleld Lbr. Co., 209 Pa. St. 422, 58 Atl. 813;
Contra by statute: Blackburn v. Bowman, 46 N. C. 441; As to land being a
parcel owned by Def . : Sunnyside Coal etc. Co. v. Reity, 14 Ind. App. 478, 39
N. E. 541, 43 N. E. 46; Perry v. Jefferies, 61 S. C. 292, 39 S. E. 515.
5. Waverly Timber etc. Co. v. St. Louis Cooperage Co., 112 Mo. 383, 20 S. W. 566;
Forsyth v. Wells, 41 Pa. St. 291, 80 Am. Dec. 617; But see, Richardson v.
Stevens, 6 N. Y. Suppl. 361, (Mutual mistake of parties).
6. Bolton v. Hendrix, 84 S. C. 35, 65 S. E. 947.
7. Trustees Dartmouth College v. Intn'l Paper Co., 132 Fed. 92.
66
LEGAL BASIS OF TRESPASS ACTION 67
can be recovered in trespass if the timber taken belonged
to the trespasser 1 or there was no actual injury. - The
malice required in an action of trespass need not be ill-will
or hatred; it is only necessary that the wrongful act be in-
tentional and committed in known \iolation of the real
owner's rights. :! The fact that the trespass was done with
evil purpose may afford ground for punitive, or exemplary,
damages but the burden of proving wilful ness is upon the
plaintiff. '
A l)o na Jidc claim of right "' is no defense to an action for
a timber trespass, even though the mistake in law or fact
may have resulted from statements or acts of the plaintiff,
provided such statements or acts were not intentionally
directed toward such result. (i In some jurisdictions it
is held that if one who has entered lawfully thereafter ex-
ceeds or misuses his authority he may be held in an action
of trespass from the time of entry. Thus the cutting of
trees of a larger size than was authorized by a license 7
and the construction of a telephone line in a different place
than that designated when the permission was given, s
have both been held to constitute trespass. The more
logical remedy in such cases would evidently be trespass
upon the case.
69 Interest Necessary for a Realty Action. The
basis of the legal wrong in trespass is essentially an inter-
ference with the possession of the property and in England
the plaintiff must be able to show actual possession to main-
tain the action of trespass. This doctrine has been fol-
lowed in some American jurisdictions but the general rule
in the United States is that either actual or constructive
1. Brock v. Smith, l-l Ark. 4:51: Whittier v. Sanborn. 3S Me. 32; Plainer v. Pivscott.
43 X. H. 277; Dame v. Dame, 3s X. II. 420. 75 Am. Dec. 195.
2. Elhridgo v. Gorman, 77 Conn. 099, (10 All. 043: Bullio v. Huniey, 3 Rob. (.La.)
317; Loomis v. Green, 7 Me. 3SO; (.'lurk v. Hart (Miss. 1SS7>. 3 So. 33; Keini v.
Warfield, GO Miss. 709; Huddleston v. .Johnson, 71 Wis. 330, 37 X. \V. 107;
t". S. v. Mock, 140 U. S. 273; See I". S. v. Humphries, 140 I". S. 277.
3. Southern K. Co. v. McKntire (Ala. 1010), 53 So. 15S; Teller v. I'nited States, 113
Fed. 273.
4. Milltown Lumber Co. v. Carter, 5 Ga. App. 344, (13 S. K. 270.
5. Higginson v. York, 5 Mass. 341; Fisher v. Xaysmith, IOC. Mich. 71. 04 X. W. 19;
Scribner v. Young, 111 X. Y. App. Div. SI 4, 07 X. Y. Suppl. SOO; Haxelton v.
Week, 40 Wis. 001, X. W. 309, 35 Am. Rep. 79(i.
6. Pearson v. Inlow, 20 Mo. 322, 04 Am. Dec. ISO.
7. Shiffer v. Broadhead, 120 Pa. St. 2(H), 17 All. 502.
8. Burnett v. Postal Tel. etc. Cable Co., 70 S. C. 402, 00 S. K. 11 10.
68 CIVIL TIMBER TRESPASS
possession at the time of the commission of the act com-
plained of is sufficient to support the action of trespass. 1
The mere title to property which is held adversely by
another is not sufficient. Since trespass is an injury to
the property itself and not merely one to a right in the
property, the plaintiff in an action for trespass must have
a right in rem and cannot rely upon a right in personam
against another for the property. Title in the plaintiff
will be necessary only when the land is unoccupied, 2 or
no one is in possession. 3 If possession alone is relied upon
it must be actual 4 and not merely constructive. Trespass
may be maintained by the one entitled to possession even
though the premises be occupied by another, if such occu-
pation is not adverse to the one entitled. 5
A lessor cannot bring an action in trespass on the realty
while the leased premises are in the possession of the lessee;
but after reentry and the taking of possession upon the
termination of the lease he may maintain an action for
any act of trespass committed subsequent to the reentry
even though committed by the tenant himself who still
remains upon the premises, 6 and it is generally held that
if the tenancy be one at will or by sufferance an act of waste
by the tenant terminates the tenancy and trespass may be
maintained by the owner without a previous entry. 7 Dur-
ing the term of a lease the tenant has possession and may
maintain an action of trespass quare clausum fregit. If
the premises are occupied merely under a right to cut a
limited number of trees, the occupant has not sufficient
possession to maintain an action of trespass. 8
1. Whiddon v. Williams Lbr. Co., 98 Ga. 700, 25 8. E. 770; Phillips v. Babcock
Bros. Lbr. Co., 5 Ga. App. 634, 63 S. E. 808; Ramos Lbr. etc. Co. v. Labarre,
116 La. 559, 40 So. 898; Lindsay v. Latham 107 S. W. 267, 32 Ky. L. Rep. 867.
Chandlee v. Walker, 21 N. H. 282; Sawyer v. Newland, 9 Vt. 383.
2. Shipman v. Baxter, 21 Ala. 456; Wadleigh v. Marathon Co. Bank, 58 Wis. 546,
17 N. W. 314.
3. Moore v. Vickers, 126 Ga. 42, 54 S. E. 814; Whiddon v. Williams Lbr. Co., 98 Ga.
700, 25 S. E. 770; Gray v. Peay, 82 S. W. 1006, 26 Ky. L. Rep. 989; Drake v.
Howell, 133 N. C. 162, 45 S. E. 539.
4. Webb v. Sturtevant, 2 111. 181.
5. Spencer v. Weatherby, 46 N. C. 327, (Grantor, still occupying, liable for cutting
tree) ; Cf. Gordner v. Blades Lbr. Co., 144 N. C. 110, 56 S. E. 695; Garbutt Lbr.
Co. v. Wall, 126 Ga. 172. 54 S. E. 944. Branch v. Mosrrion 51 N. C. 16.
6. Dorrell v. Johnson, 17 Pick. (Mass.) 263.
7. Daniels v. Pond, 21 Pick. (Mass.) 307, 32 Am. Dec. 269; Catlin v. Hayden, 1 Vt.
375; Treat v. Peck, 5 Conn. 280; Phillips v. Covert, 7 Johns. (N. Y.) 1; Sneak
v. Mundorf, 2 Browne (Pa.) 106; But see, Russell v. Fabyan, 34 N. H. 218.
8. Monahan v. Foley, 4 U. C. Q. B. 129.
ADVERSE POSSESSION 69
, The grantee : or lessee 2 of land cannot maintain an
action of trespass for the removal of trees which were severed
by his grantor or lessor, nor for any property of another
which is upon or attached to the land for he acquires neither
actual nor constructive possession of such personalty; but
the action of quare clausum fregit lies in his favor against
the grantor or a third person for an effort to use a sawmill
site for a different purpose than that contemplated in the
reservation of the same. 3
Any one owning trees standing upon the land of another
can maintain the action of trespass quare clausum fregit for
any injury to them, 4 either by a stranger after entry by
the purchaser, 5 or by the owner of the land, 6 and a
qualified interest in the trees gives sufficient possession for
the maintenance of the action. 7 In such cases the title
in the trees may arise either from a reservation in a grant
of the land, 8 or from a direct grant of the trees. 9 A
mere license 10 to enter upon land and cut trees, an agree-
ment of sale giving a certain time for removal, n which is
effective only as a license, or a mere stipulation by a lessor
that the trees shall not be cut 12 does not afford the posses-
sion required to support an action of trespass upon realty.
70. Adverse Possession. It has been held that if
land is in the possession of an adverse holder, the land
owner cannot, during the time of such adverse holding,
maintain an action of trespass de bonis against the adverse
holder for the taking of trees and other things attached
to the realty; n but in some juridsictions, although action
on the case is the only remedy for severance, trespass is
1. Cohen v. Bryant, (15 S. W. :U7, 23 Ky. L. Kep. 144S.
2. Brock v. Smith, 14 Ark. 431.
3. nygert v. Matthews, 11 Wend. (X. Y.) 35.
4. Gronour v. Daniels, 7 Blaekf. (Ind.) IDS; Haskin v. Record, 32 Vt. 575; But see,
Whitehouse Cannel Coal Co. v. Wells, 74 S. W. 736, 25 Ky. L. Kep. GO.
5. Goodrich v. Hathaway, 1 Vt. 4S5, IS Am. Dec. 701.
G. Narehood v. Wilhelm, 09 Pa. St. 64.
7. Bui-lei^h Tp. etc. Corp. v. Hales, 27 U. C. Q. B. 72.
8. Goodwin v. Hubbard, 47 Me. 595; Phillips v. DcGroat. 2 Lans. (X. Y.) 192;
Schermorhorn v. Buell, 4 Den. (X. Y.) 422; Robinson v. (iee. 2G X. C. ISO;
Grebcr v. Kloekner, 2 I'a. St. 2S9; Irwin v. Patchen, 1G4 Pa. St. 51, 30 All. 430.
9. Clap v. Draper, 4 Mass. 26G, 3 Am. Dec. 215.
10. Fletcher v. Livingston, 153 Mass. 388, 26 X. K. 1001.
11. Gates v. Comstock, 107 Mich. 54G, 65 N. W. 544.
12. Schermerhorn v. Buell, 4 Den. (X. Y.) 422.
13. Jarvis v. Edgett, N. Brunsw. 66.
70 CIVIL TIMBER TRESPASS
allowed for the asportation. l It is also held that during
such adverse holding the owner cannot bring trespass
against a third person. However, after reentry the land
owner can maintain trespass de bonis against either the
disseizor or his grantee. 2 Although some decisions seem
to be to the contrary, 3 the weight of authority is that the
occasional cutting of timber on land, 4 or repeated occu-
pancy for short periods, as during sugar making seasons,
even though the practice be continued annually for the
1. McLain v. Todd, 5 J. J. Marsh (Ky.) 335, 22 Am. Dec. 37.
2. Alliance Trust Co. v. Nettleton Hardwood Co., 74 Miss. 584, 21 So. 396, GO Am.
St. Rep. 531, 36 L. R. A. 155.
3. Brett v. Fair, 66 Iowa 684, 24 N. W. 275; Forey v. Bigelow, 56 Iowa 381, 9 X. \V.
313; Clement v. Perry, 34 Iowa 564; Barker v. Towles, 11 La. 432; McGregor v.
Keiller, 9 Ont. 677; And see, Hubbard v. Kiddo, 87 111. 578; Brooks v. Bruyn,
18 111. 539; Colvin v. McCune, 39 Iowa 502; Henry v. Henry, 122 Mich. 6, 80
N. W. 800; Murray v. Hudson, 65 Mich. 670, 32 N. W. 889; Goltermann v.
Schiermeyer, 111 Mo. 404, 19 S. W. 484, 20 S. W. 161.
4. Ala. Burks v. Mitchell, 78 Ala. 61; Farley v. Smith, 39 Ala. 38; See also. Rivers
v. Thompson, 46 Ala. 335; Childress v. Callaway, 76 Ala. 128.
Ga. Hilton v. Singletary, 107 Ga. 821, 33 S. E. 715; Strong v. Powell, 92 Ga.
591, 20 S. E. 6; Carrol v. Gillion, 33 Ga. 539; Durham v. Holeman, 30
Ga. 619; Long v. Young, 28 Ga. 130; Keller v. Dillon, 26 Ga. 701.
111. Travers v. McElvain, 181 111. 382, 55 N. E. 135; Austin v. Rust, 73 111.
491.
Ky. Barr v. Potter, (Ky. 1900) 57 S. W. 478; Ohio etc. R. Co. v. Wooten, (Ky.
1898) 46 S. W. 681; Wait v. Gover, (Ky. 1890) 12 S. W. 1068; Wilson v.
Stivers, 4 Dana 634.
La. Gardner v. Leger, 5 La. Ann. 594; Macarty v. Foucher, 12 Mart. 11.
Me. Miilett v. Mullen, (Me.) 49 Atl. 871.
Md. Thistle v. Frostburg Coal Co., 10 Md. 129.
Mass. Parker v. Parker, 1 Allen 245; Slater v. Jopherson, 6 Gush. 129.
Mo. Robinson v. Claggitt, 145 Mo. 153, 50 S. W. 280; Carter v. Hornback, 139
Mo. 238, 40 S. W. 893; Goltermann v. Schiermeyer, 125 Mo. 291, 28
S. W. 616; Musick v. Barney, 49 Mo. 458; Cook v. Farrah, 105 Mo. 492,
16 S. W. 692. Morgan v. Pott, 124 Mo. App. 371, 101 S. W. 717.
.V. J. Townsend v. Reeves, 44 N. J. L. 525.
N. C. Shaffer v. Gaynor, 117 N. C. 15, 23 S. E. 154; McLean v. Smith, 114 X. C.
356, 19 S. E. 279; Bartlett v. Simmons, 49 N. C. 295.
Ore. Wheeler v. Taylor, 32 Oreg. 421, 52 Pac. 183, 67 Am. St. Rep. 540.
Pa. Douglass v. Lucas, 63 Pa. St. 9; Beaupland v. McKeen, 28 Pa. St. 124, 70
Am. Dec. 115; Murphy v. Springer, 1 Grant 73.
S. C. McBeth v. Donnelly, Dudley (S. C.) 177; White v. Reid, 2 Xott & M. 534;
Bailey v. Irby, 2 Mott & M. 343, 10 Am. Dec. 609.
Tenn. Pullen v. Hopkins, 1 Lea 741.
Texas. Boone v. Hulsey, 71 Tex. 176, 9 S. W. 531; Stegall v. Huff, 54 Tex. 193;
Soape v. Doss, 18 Tex. Civ. App. 649, 45 S. W. 387; Cook v. Lister, (Tex.
Civ. App. 1896) 38 S. W. 380.
Vt. Wells v. Austin, 59 Vt. 157. 10 Atl. 405.
Va. Anderson v. Harvey, 10 Gratt. 386; Pasley v. English, 5 Gratt. 141.
W.Va. Yokum v.Fickey, 37 W. Va. 762, 17 S. E. 318; Oney v. Clendenin, 28 W.
Va. 34.
Wis. Ladd v. Hildebrant, 27 Wis. 135, 9 Am. Rep. 445.
Can. Doe v. White, 3 N. Brunsw. 595.
See also:
Pa. Heller v. Peters, 140 Pa. St. 648, 21 Atl. 416; McArthur v. Kitchen, 77 Pa.
St. 62; Olewine v. Messmore, 128 Pa. St. 470, 18 Atl. 495.
TRESPASS UPON SEVERED TREES 71
statutory period, l will not alone afford such evidence
of ownership as to support a claim of possession adverse
to the true owner such occupation comprising rather a
series of trespasses. It has also been held that mere entry
upon land and the cutting of timber thereon was not' suf-
ficient possession in itself to support an action of forcible
entry and detainer. 2
71 Trespass upon Severed Trees as Personalty.
A conveyance of land does not pass title to timber that has
een lawfully severed by either the owner or another, 3 but
it does revoke any license that has been given for the cutting
of timber thereon. 4 A license from a mortgagor to take
timber has been held to constitute no defense against an
action by a purchaser under a foreclosure sale, 5 nor will
authority from a widow before the assignment of dower
afford protection from an action of trespass. 6 It has
even been held that the licensor may revoke the license
as to wood already severed and maintain trespass for a
subsequent removal 7 but other courts have held that if
the timber was lawfully severed under the license the
owner of the land cannot prevent its removal by the one
who severed or by his assignee. 8
If land is in the possession of a tenant, severance ends
the tenant's interest in the trees severed and the owner can
without entry bring an action in trover or replevin against
a third person who servers and removes during the ten-
1. Caskey v. Lewis, 15 B. Mon. (Ky.) 27: Adams v. Robinson, 6 Pa. St. 271; Wash-
abaugh v. Entriken, 34 Pa. St. 74, 36 Pa. St. 513; Ewing v. Alcorn, 40 Pa. St.
492; Wilson v. Blake, 53 Vt. 305; See, Voight v. Meyer, 42 N. 'Y. App. Div.
350, 59 N. Y. Suppl. 70; But See, Bynum v. Carter, 26 N. C. 310 (Annual tur-
pentining); Flannery v. Hightower, 97 Ga. 592, 25 S. E. 371; See also, Fred-
erick v. Goodbee, 120 La. 783, 45 So. 606; Safford v. Basto, 4 Mich. 406; Tred-
well v. Reddick, 23 N. C. 56; Haseltine v. Mosher, 51 Wis. 443, 8 N.W. 273.
2. Wilson v. Stivers, 4 Dana (Ky.) 634; Humphrey v. Jones, 3 T. B. Mon. (Ky.) 261;
Powell v. Davis, 54 Mo. 215; Bell v. Cowan, 34 Mo. 251; See, Chessen v. Har-
relson, 119 Ala. 435, 24 So. 716; See Also, Conway v. Duane, 45 Cal. 597; Ham-
mond v. Doty, 184 111. 246, 56 N. E. 371 (Aff'm'g 84 111. App. 19). Millett v.
Mullen, (Me.) 49 Atl. 871.
3. Woodruff v. Roberts, 4 La. Ann. 127; Berthold v. Holman, 12 Minn. 335, 93 Am
Dec. 233; Peck v. Brown, 5 Nov. 81 ; Schmidt v. Voght, 8 Ore. 344.
4. Putney v. Day, 6 N. H. 430, 25 Am. Dec. 470; Paine v. Northern Pac. R. Co., 14
Fed. 407, 4 McCrary 586 (Aff'd in 119 U. S. 561, 7 Sup. Ct. 323, 30 L. Ed. 513.)
5. Jarvis v. Edgett, 6 N. Brunsw. 66.
6. Lowery v. Rowland, 104 Ala. 420, 16 So. 88.
7. Buker v. Bowden, 83 Me. 67, 21 Atl. 748.
8. Yale v. Seely, 15 Vt. 221 (1843).
72 CIVIL TIMBER TRESPASS
ancy, l or against the tenant himself fo 1 * a taking after the
severance, 2 at least if the taking is at another time from
the severance. 3 A tenant cannot maintain an action for
the carrying away of severed trees. 4
72 The Taking of Timber after the Expiration of
the time Limited for Removal. One who reserves
growing trees in a grant of land, or purchases such trees,
with provision for removal within a limited time ordinarily
becomes a trespasser if he enters and removes either stand-
ing or severed trees after the expiration of the limited time, 5
even though the removal within the limited time was pre-
vented by the plaintiff. 6 While some courts hold that he
still has title and that no damages can be recovered for
the value of the timber, 7 others hold that all interest in
the timber is lost and full damages can be recovered 8
If there be an agreement that upon severance the trees
shall become the property of the one severing, the latter
or his assignee may maintain an action of de bonis aspor-
tatis against one who appropriates the severed trees 9
even though the offender be the land owner. 10 However
if some act subsequent to the cutting such as payment
therefor, is necessary before title shall vest in the severed
trees as chattels, the action cannot be maintained prior to
the accomplishment of such act, n except where the terms
of the agreement were such as to give the one severing them
possession in the form of a hen. 12
1. Lane v. Thompson, 43 N. H. 320.
2. Chestnut v. Day, 6 U. C. Q. B. O. S. 637; Warren County v. Gans, 80 Miss. 76, 31
So. 539.
3. Bulkley v. Dolbeare, 7 Conn. 232; Schermerhorn v. Buell, 4 Den. (N. Y.) 422.
4. Zimmerman Mfg. Co. v. Damn, 149 Ala. 380, 42 So. 858, 123 Am. St. Rep. 58, 9
L. R. A. N. S. 663; Cf. Matthews v. Bennett, 20 N. H. 21.
5. Howard v. Lincoln, 13 Me. 122; Pease v. Gibson, 6 Me. 51; Bunch v. Eliz. City
Lbr. Co., 134 N. C. 116, 46 S. E. 24.
6. Inderlied v. Whaley, 65 Hun. (N. Y.) 407, 20 N. Y. Suppl. 183.
7. Zimmerman Mfg. Co. v. Damn, 149 Ala. 380, 42 So. 858, 123 Am. St. Rep. 58,9
L. R. A. 663; Dyer v. Hartshorn, 73 N. H. 509, 63 Atl. 231; Hoit v. Stratton
Mills, 54 N. H. 109, 20 Am. Rep. 119; Plumer v. Prescott, 43 N. H. 277.
8. Morgan v. Perkins, 94 Ga. 353, 21 S. E. 574; Bunch v. Eliz. City Lbr. Co., 134 N. C.
116, 46 S. E. 24; Boults v. Mitchell, 15 Pa. St. 371; See Clark v. Guest, 54 Ohio
St. 298.
9. Flske v. Small, 25 Me. 453.
10. Hamilton v. McDonnell, 5 U. C. Q. B. 720.
11. Creps v. Dunham, 69 Pa. St. 456; Cf. Goodwin v. Fall, 102 Me. 353, 66 Atl. 727.
12. Haverly v. State Line etc. R. Co., 125 Pa. St. 116, 17 Atl. 224.
Cf. McAllister v. Walker, 69 Mo. App. 496 (1897) (Clearing of land paid for from
timber cut in clearing.)
TRESPASSER ACQUIRES NO TITLE 73
73 A Trespasser Acquires No Right in Timber Cut.
If trees are cut by a trespasser the title to them remains in
the owner of the land and his subsequent grantee or lessee
may maintain an action of de bonis against the trespasser
for a removal after the grantee or lessee obtains posses-
sion. 1 In fact the trespasser can acquire no rights as
against the true owner who may without legal liability ap-
propriate the timber product 2 upon which the trespasser
has bestowed labor and enjoy the benefit of such expendi-
ture. 3 A recovery by the land owner from the trespasser
for breaking and entering does not vest in the trespasser
the title to the trees severed, 4 even though they have been
made into charcoal, 5 or the full value of the trees has been
paid in a compromise of the action. G Nor does a trespasser
acquire the title to severed timber necessary to support
an action against a stranger. 7 A person who gives a
license for the cutting of trees upon another's land is him-
self liable at law for the trespass whether the authorization
be express 8 or implied; and so is one who advises or
encourages the trespass. 10
74 The Measure of Damages in Trespass upon
Realty. If the action for the cutting of standing trees is
brought in the form of a trespass upon realty (quare dausum
fregit}, the measure of damages should evidently be the
difference between the market value of the land before the
trespass and its value after the trespass, n but the recovery
of an additional amount for a trespass upon the logs cut
from the trees, as personal property, has been allowed in
such action. 12 The determination of the amount of damage
done to the land will often rest largely, or entirely, upon
1. G Ion wood Lbr. Co. v. Phillips (1901) A. ('. to.'). 7:; I.. .1. 1'. C. 02, 110 I.. T. Rep.
N. S. 741, 20 T. L. K. 331.
2. Burris v. Johnson, 1 J. .1. Marsh (Ky.) I'.Mi; Stevens v. Perrier 12 Kan. 21)7.
3. Bush v. Fisher, S9 .Mich. 192, 50 N. \V. 7SS; Stewart v. Tucker, 100 Ala. 319, 17
So. 385. Gates v. Rifle Boom Co. 70 Mich 309.
4. Loonn's v. Green, 7 Me. 3S6.
r>. Curtis v. Groat, (i Johns, (X. Y.) 1GS, 5 Am. Dec. 20 I.
f>. Betts v. Lee, 5 Johns (N T . Y.) 34S, 4 Am. Dec. .'His.
7. Brock v. Smith, 14 Ark. 431; See Carpenter v. Lewis, G Ala. GS2.
8. Cook v. Amer. Exch. Bank, 129 N. C. 149, 39 S. K. 740; Chandler v. Speer, 22 Vt.
3SS; State v. Smith, 78 Me. 200, 4 Atl. 412, 57 Am. Kep. S02.
9. Marshall v. Eggleston, 82 111. App. 52; Sanboni v. Sturtevant. 17 Minn. 200.
10. Quillen v. Betts, 1 Pennew (Del.) 53.
11. Davies v. Miller-Brent Lbr. Co.. 15 L Ala. 580, 44 So. G3-).
12. Trustees Dartmouth College v. Intn'l Paper Co., 132 Fed. 95.
74 CIVIL TIMBER TRESPASS
the value of the timber removed. It has been held that
the diminished value of the land is not the measure of the
damage where the land is wild and more valuable for its
timber than for its soil, 1 and where it is shown that the
land is valuable only for its timber, the value of the timber
may be held the measure of the damage to the land. 2 It
has also been held that in an action in the form of trespass
upon realty, if the value of the timber, together with any
incidental damage to the land, resulting from the cutting,
exceeds the diminution in the market value of the land
the larger amount should be allowed in damages. 3 In a
New York case in which the timber was not removed and
it was shown that it was as valuable cut as it was standing,
only nominal damages were allowed. 4
If the trees cut are non- timber trees or immature trees
of the timber species, the market value of the trees after
they are severed would evidently not be a proper measure
of the damage done the owner, and in such a case suit should
ordinarily be brought for damage to the land. In de-
termining the damage the fact that the land may be of
little value, or of no value, without the trees will be consid-
ered and evidence will be received as to the value of the
trees while standing. 5 This rule has been applied in the
case of trees in a sugar bush, 6 fruit trees, 7 trees which
1. Meehan v. Edwards, 92 Ky. 574, 18 S. W. 519, 13 Ky. L. Rep. 803, 19 S. W. 179;
Cf. Koonz v. Hempy, 142 lo. 337, 120 N. W. 976.
2. Gates v. Comstock, 113 Mich. 127, 7 N. W. 515.
3. Milltown Lbr. Co. v. Carter, 5 Ga. App. 344, 63 S. E. 270.
4. DeCamp v. Wallace, 45 Misc, (N. Y.) 436, 92 N. Y. Suppl. 746.
See Disbrow v. Westchester Hardwood Co. (N. Y.) 59 N. E. 519 (Mature timber,
Damages value of wood.)
5. chi pn i an v. Hibberd, 6 Cal. 162; Wallace v. Goodall, 18 N. H. 439, 456; Oilman
v. Brown, 115 Wis. 1, 91 N. W. 227; United States v. Chicago, Mil. & St. P. R-l
Co. 207 Fed. 164, (Aff'd in 218 Fed. 288.) ; Doak v. Mammoth Copper Min. Co-
192 Fed. 748 (1911) Trees injured by smelter fumes. In U. S. v. Bailey, Receiver
Mo. R. & N. W. Ry. Co. etc. (unreported) the damages awarded by the jury
were equal to the estimated cost of restocking the area burned over and of caring
for the young trees until they reached the age of those destroyed.)
6. Humes v. Proctor, 73 Hun. (N. Y.) 265, 26 N. Y. Suppl. 315, (Aff'd. in 151 N. Y.
520, 45 N. E. 948.)
7. Ala. Mitchell v. Billingsley, 17 Ala. 391.
Cal. Montgomery v. Locke, 72 Cal. 75. > 13 Pac. 401.
111. Louisville E. & S. L. C. R. R. v. Spencer, 149 111. 97, 36 N. E. 91 (Fire, Act
Mar. 29, 1869, places upon R. R. presumption of carelessness.)
Iowa. See Hamilton v. Des Moines & K. C. Ry., 84 la. 131, SON. W. 567. (Dam.
to trees, not cost of restoration. Only partially injured.)
Kan. Kansas Zinc Mining & Smelting Co. v. Brown, 8 Kan. App. 802, 57 Pac.
304 (Gases.)
(Footnote 7 continues on next page)
MEASURE OF DAMAGES 75
formed a wind break, ' shade trees,' 2 and in other cases where
the value of the trees after severance was not equivalent
to the damage done. If the trees cut by a trespasser are
also carried away by him the action for redress should
in most instances be brought in replevin or trover.
75. The Highest Measure of Damages Allowed. It
appears to be the general policy of all courts to allow
the party injured to bring action in such form and to recover
damages upon such basis as will afford him full compen-
sation for the injury, and to permit him to recover either
the value of the timber :! or the depreciation of the
(Footnote / concluded from preceding page)
St. Louis & S. F. Ry. v. Hoover, :i Kun. App. . r >77, 4.'5 Par. So! (fire.) (rea-
sonably prudent operation of engine required.)
Atchison T. & S. F. Ry. v. Geiser OS Kan. 2X1, 75 Pac. OS.
Mo. Doty v. Quincy, (.). it K. C. K. R.. 1:50 Mo. App. 254, 110 S. \V. 1 120 (lire).
X. H. Foote v. Merrill, 54 X. If. 490, 20 Am. Hep. 151.
X. V. Dwitfht v. Klniira Ktc. R. Co. 1:52 X. V. 100. :!() X. K. :50X, 2S Am. St. Rep.
/>(;.}. 15 L. K. A. 012: Carter v. Pitelier S7 Hun 5<s(), 24 X. V. Suppl. 549.
Tex. ddvestou Ktc. R. Co. v. \Varneeke, i:i Tex. Civ. App. s:j. 1)5 S. \V. 000.
1. Xi\o'i v. Stihvell, 52 I fun. (X. Y.) .S53.5 X. Y. Suppl. 24x.
2. C,;,m. Eldridjw v. (iorman, 77 Conn. 000, 00 All. 04:5.; Ifoyt v. Southern New E.
Tel. Co. 00 Conn. :5S5. 22 All. 957.
Del. Jordan v. Delaware it A. T. Co. 75 All. 1014 (1909).
Ind. Delaware & M. C. T. Co. v. Fisk, 40 Ind. App. :US, SI X. K. 1 100 (1907).
Iowa. Meyer v. Standard Tel. Co. 122 la. 514, Ox X*. \V. .'{()<) (exceeded license.)
Kan. Wichita (I. 1':. L. & P. Co. v. Wright 9 Kan. App. 7:iO, 59 Pac. IOS5 (Gas).
I.a. Tissot v. dvat S. T. & T. Co., :{0 La. Ann. 900, :{ So. 201.
Me. Longfellow v. Quimby, : Me. 457.
Mass. Piiikerton v. Randolph, 200 Mass. 24, S5 X. F. X02. (In street).
X. Y. Fdsall v. llowell SO Hun. 424, : X. Y. Suppl. X02; (ioriiam v. Fast-
chester Fl. Co. SO Hun 290, :) X. Y. Suppl. 125 (1S04); Xixon v. Stil-
well 52 Hun. :i5:{, 5 X. Y. Suppl. IMS; Ferguson v. Huckell, 101 App. Div.
2l:i, 01 X. Y. Suppl. 724 (Trees about summer home.)
X. D. Cleveland School Dist. v. (it, Northern Ry., 20 X. Dak. 124, 120 X. W.
005; 2S L. R. A. (X. S.) 757.
:i. Cal. Cleland v. Thornton, 4:5 Cal. 4:57.
(ia. AVestern & A. R. R. v. Tate, 120 (!a. 52C>, 50 S. F. 200: Smit h v. (ionder. 22
(ia, :i.5:5.
111. liirket \-. \\'illia,nis, :i() 111. App. 452. (Trees in nursery).
Ind. H aisled v. Siller:?;") Ind. App. 410, 71 N. K. 257.
Iowa. Leiber v. Chi. M. \ St. P. Ky. SI la. 07. 50 N.W. 547. (ireenfield v. Chicago
Ftc. R. Co. S3 Iowa 270; 40 X. \V. 05: (Iraessle v. C'arpenter 70 la. 100.
Freeland v. Muscatine, Iowa 401; Krejci v. Chi. etc. R. Co. 117 la,
.'544, 00 N. \V. 70S.
Kan. Missouri, K & T. Ry. v. Steinheriier. C. Kan. App. 5X5. 51 I'ac. 02S. Mis-
souri, K \ T. Ry. v. Lycan 57 Kan. 0^5, 47 Pac. 520. Atchison, Ftc. R.
Co. v. Hamilton, (i Kan. App. 447; 50 Pac. 102; Atcli. etc. R. Co. v. Finer-
son, 50 Pac. 70.
Ky. Lindsay v. Latham 107 S. \V. 207, :?2 Ky. L. Rep. S07 : Louisville it X.
R. R. v. Heeler 120 Ky. :{2S, 10:i S. \\ . :{()(), M L. R. A (X. S.) <:{();
Median v. Edwards 02 Ky. 574, IS S. \V. 510.
La. dial-anted V. it S. D. Co. v. llolscll. 107 La, 715, :( 1 So. 000. Stoner v.
Tex. & Pac. Ry. 45 I.a. Ann. 1 15. 1 I So. X75.
Ma,ss. Cults v. Spring !5 Mass. 11)5 (1S1X); Hliss v. Hall 00 Mass. 507. 07 Am.
Dec. 5X.
(Footnote ,'5 continued on next page,)
76 CIVIL TIMBER TRESPASS
land 1 according to which gives the highest measure of damages. 2
Furthermore, the injured party has been allowed to recover
both for the value of the trees and for the diminution in
value of the land caused by the cutting. 3 And in deter-
( Footnote 3 concluded from preceding page)
Mich. Gates v. Comstock, 113 Mich. 127. 7 N. W. 515; Skeels v. Starrett; 57
Mich. 350.
Minn. Garner v. Chicago, St. P. M. & O. Ry. 43 Minn. 375, 45 N. W. 713.
Mo. Atkinbon v. Atlantic Etc. R. Co., 63 Mo. 367.
Mont. Nelson v. Big Blackfoot Min. Co. 17 Mont. 553, 44 Pac. 81.
Neb. Hart v. Chi. & N. W. Ry. 83 Neb. 652, 120 N. W. 933; Kansas City &
O. R. R. v. Rogers 48 Neb. 653, 67 N. W. 602. Fremont, Etc. R. Co
v. Crum, 30 Neb. 70.
N. H. Beede v. Lamprey, 64 N. H. 510, 10 Am. St. Rep. 426.
N. J. Delaware Etc. R. Co. v. Salmon, 39 N. J. L. 316, 23 Am. Rep. 214.
N. Y. Whitbeck v. N. Y. C. R. R. 36 Barb. (N. Y.) 644.
Pa. Chase v. Clearfleld Lbr. Co. 209 Pa. 422, 58 Atl. 813.
R. I. Spink v.N. Y. N. H. & H. R. R. 26 R. I. 115, 58 Atl. 499.
S. D. White v. Chicago Etc. R. Co., I S. Dak. 326.
Tenn. Burke v. Louisville Etc. R. Co. 7 (Heisk) 451, 19 Am. Rep. 618.
Vt. Kilby v. Erwin, 84 Vt. 270. 78 Atl. 1021; Chase v. Hoosac T. & W. R. R.
81 Atl. 236.
Va. Virginia Ry. v. Hurt 72 S. E. 1 10 (Holding value after the burning must be
considered, contra Manitou & P. P. Ry. v. Harris 45 Col. 185, 101 Pac.
61, Dec. 1909).
U. S. U. S. v. Taylor 35 Fed. 484 (1888).
Eng. Wild v. Holt, 9 M. & W. 672; Martin v. Porter, 5 M. & W. 351.
1. Ala. Southern Bell Telephone Co. v. Francis, 109 Ala. 234, 55 Am. St. Rep. 930.
Ark. St. Louis etc. R. Co. v. Ayres. 67 Ark. 371.
Cal. Chipman v. Hibbard, 6 Cal. 162.
Del. Bullock v. Porter 77 Atl. 943 (1910) fire.
Ky. Kentucky Stave Co. v. Page (1910) 125 S. W. 170.
Mich. Thompson v. Moiles, 46 Mich. 42; Achey v. Hull, 7 Mich. 423.
Minn. Carner v. Chicago etc. R. Co., 43 Minn. 375; 45 N. W. 713.
N. H. Wallace v. Goodall, 18 N. H. 439.
N. Y. Evans v. Keystone Gas Co., 148 N. Y. 112, 42 N. E. 513, 51 Am. St. Rep.
681; McCrudden v. Rochester R. Co., 5 Misc. 59, 25 N. Y. Suppl. 114
[Aff'd. in 77 Hun. 609, 28 N. Y. Suppl. 1135 (Aflf'd. in 151 N. Y.
Suppl. 623, 45 N. E. 1133)]; Parker v. Sherwood, 125 N. Y. Suppl. 297
(1910) fire; Argotsinger v. Vines, 82 N. Y. 308; Van Deusen v. Young
29 N. Y. 9; Easterbrook v. Erie R. Co., 51 Barb. 94; Harder v. Harder,
26 Barb. 409; Cook v. Brockway, 21 Barb. 331; Bevier v. Del. etc. Canal
Co., 13 Hun. 254.
N. C. Brickell v. Camp Mfg. Co. 147 N. C. 118. 60 S. E. 905 (1908). (Declaration
of agent admissible.) Wall v. Holloman 72 S. E. 369; Jenkins v. Mont-
gomery Lbr. Co. 70 S. E. 633.
Tex. Hooper v. Smith (Tex. Civ. App. 1899). 53 S. W. 65.
Wis. Nelson v. Churchill, 117 Wis. 10, 93 N. W. 799. (Evidence as to value
mfd. product & cost mf'r admissible to show depreciation of land.)
2. Knisely v. Hire, 2 Ind. App. 86, 28 N. E. 195; Park v. Northport Smelting etc. Co.,
47 Wash. 597, 92 Pac. 442; Hooper v. Smith (Tex. Civ. App. 1899), 53 S. W. 65;
Cf. Gustin v. Jose, 11 Wash. 348, 39 Pac. 687; Fremont etc. R. Co. v. Crum,
30 Neb. 70; Cathcart v. Bowman, 5 Pa. St. 317; Bailey v. Chicago etc. R. Co.,
3 S. Dak. 531, 54 N. W. 596. 19 L. R. A. 653.
3. Kan. Atchison, Topeka & S. F. R. v. Geiser, 68 Kan. 281. 75 Pac. 68 (1904).
(Fire, setting of by engine prima facie evidence of negligence under
statute.)
Ky. Lindsay v. Latham, 107 S. W. 267, 32 Ky. L. Rep. 867.
Mich. Miller v. Wellman, 75 Mich. 353, 42 N. W. 843. Skeels v. Starret. 57 Mich
350.
(Footnote 3 continued on next page)
HIGHEST MEASURE OF DAMAGES 77
mining the damages consideration will be given to the relation
of the area on which cutting took place to other lands
held by the owner, : and to the value of the particular
trees cut in connection with the use of the premises. '-'
The measure of damages will not ordinarily be affected
by changes in the market subsequent to the time of the
injury, 3 but the owner is entitled to the value of the
wood when put to the most advantageous use for which
it was fitted and for which it may reasonably be assumed
it might have actually been used. 4 In timber cases as
in others speculative damages will not be allowed, 5 but
damages may be exemplary. 6 Damages have been given
for the destruction of immature timber trees which had no
market value. 7
( Footnote 3 concluded from preceding page)
X. C. Whit field v. Rowland Lbr. Co. 152 X. C. 211, 67 S. E. 512. Gaskins v.
Davis, 115 X. C. 85, 20 S. E. 188, 44 Am. St. Rep. 489, 25 L. R. A. 812.
Ore. Oregon & C. R. R. v. Jackson, 21 Ore. 300, 28 Pac. 74 (Value added by
labor cannot be trebled.)
Pa. Krider v. Lafferty, 1 Whart. 302, 319 (1836) Willows. Chase v. Clear-
field Lbr. Co. 209 Pa. St. 422, 58 Atl. 813.
Tenn. Ensley v. Nashville, 2 Baxt. (Tenn.) 144.
See Union Bank v. Rideau Lbr. Co., 4 Out. L. Rep. 721.
See 4 L. D. 1, Dep't Interior.
1. Ala. Lowery v. Rowland, 104 Ala. 420 (1893).
Minn. Carner v. Chi. St. P. M. & O. R. Co., 43 Minn. 375 (1S90) :.
X. Y. Morrison v. American Tel. Co., 115 X. Y. Appl. Div. 741, 101 X. Y. Suppl.
140.
Argotsinger v. Vines, 82 X T . Y. 308.
2. Conn. Hoyt v. Southern X. E. Tel. Co. 60 Conn. 385, 22 At!. 957.
Kan. See Atchison v. Geiser (Kan.) 75 P. 68.
X. Y. Donahue v. Keystone Gas. Co., 85 X T . Y. S. 47S.
Wis. Miller v. Xeale, 137 Wis. 426, 119 X. W. 94.
Oilman v. Brown, 115 Wis. 1, 91 X. W. 227.
But see Missouri Pac. R. Co. v. Haynes, 1 Kan. App. 5S6, 12 I'ac. 259,
(Value annual crop of fruit too speculative as basis of damages.)
3. Schlatcr v. Gay, 28 La. Ann. 340 (1876); Walruth v. Redfield, 11 Barb. (X. Y.)
80S. (1851).
4. Spink v. X. Y. X. II. & H. R. R. Co., 26 R. I. 115 (1904).
5. Longfellow v. Quimby, 29 Me. 196, 48 Am. Dec. 525; Lee v. Brings, 99 Midi. 487.
See Hayden v. Albee, 20 Minn. 159 (overflow,) Mackey et al v. Olssen, 12 Ore.
429. (road cost ) ; Griffen v. Colver, 16 X. Y. 4S9 (Sawmill case. )
Kolb v. Bankhead, 18 Tex. 228. Tissot v. Groat South. Tel. & Tel. Co. 89 La.
Ann. 996. See Barry v. Edmunds, 116 L". S. 550 (1885); Day v. Wood worth
13 How. 362, 371 (1851).
7. Colo. See Manitou & P. P. Ry. v. Harris, 45 Col. 1S5. 101 Par. 61 (19O9) (.Par-
tially burned.)
Ga. C 'entral H. R. & B. Co. v. Murray 93 (Ja. 256. 20 S. K. 129 (Fire).
Iowa Burdick v. Chicago, M. & St. P. Ry. S7 la. 3S4. 54 N. W. 139. Striegel
v. Moore 55 la. 88; See Leibor v. Chicago M. St. P. & (). Ry. S4 la. 97,
50 X. W. 547. (Difficulty of restoration because of shade considered.)
Ky. Lindsay v. Latham, 107 S. W. 267, 32 Ky. L. Rep. 867.
Mich. Bockes v. McAfee & Son Co. 165 Mich. 7, 130 X. W. 313.
Minn.^IIoye v. Chicago, M. & St. P. Ry. 46 Minn. 269, 4S X. W. 1117. (Fire,
engine must have best spark arresters available.)
(Footnote 7 continued on next page)
78 CIVIL TIMBER TRESPASS
76. Choice of Actions in Timber Trespass Cases.
If trees are severed and carried away by a trespasser or
by another who has no lawful right to cut them the owner
of the land or of the trees may either bring an action in
trespass quare dausum fregit, 1 trespass de bonis asportatis
for the damage done in the carrying away of the severed
trees, 2 an action in replevin for the specific recovery of
the trees taken, or their value, 3 an action in trover for
the value of the property converted, 4 or, waiving the
tort, he may bring an action of implied assumpsit for the
value 5 or one for money had and received for his use. 6
He may also obtain possession by recapture of the prop-
erty and, even though he be liable for a breach of the
peace, his title will be good. 7 If the owner is not in pos-
session of the land he may enter and take possession of
the timber, 8 whether it was cut by a trespasser or by one
in possession of the land; or he may bring an action on the
case in the nature of waste for the injury done. 9 If
timber trees are wrongfully severed by a tenant for years
or for life, the lessor, reversioner or remainderman is en-
titled to the trees and may maintain replevin, 10 trover, u
(Footnote 7* concluded from preceding page)
Neb. Alberts v. Husenetter 77 Neb. 699, 110 N. W. 657 (1906).
N. C. Williams v. Elm City Lbr. Co., 70 S. E. 631.
Pa. Com. v. LaBar, 32 Pa. Super. Ct. 228 (Act Feb. 25, 1911, S. L. 11)
U. S. U. S. v. Chi., Mil. & St. P. Ry. Co., 207 Fed. 164, (Aff'd in 218 Fed. 288.)
Damages have been allowed for the leaving of brush on land: Halsted v
Sigler, 35 Ind. App. 419, 74 N. E. 257; Chase v. Clearfleld Lbr. Co. 209
Pa. 422, 58 Atl. 813; Contra. Nelson v. Big Blackfoot Min. Co., 17 Mont
553, 44 Pac. 81 (The land to be cleared for homestead purposes).
1. Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 63 S. E. 270.
2. Taylor v. Burt etc. Lbr. Co., 109 S. W. 348, 33 Ky. L. Rep. 199; Dennis v. Strunk,
108 S. W. 957, 32 Ky L. Rep. 1230.
3. Kimball v. Lohmas, 31 Cal. 154; Halleck v. Mixer, 16 Cal. 574; Sanborn v. Frank-
lin County Lbr. Co., 55 Fla. 389, 46 So. 85; Anderson v. Hopler, 34 111. 436, 85
Am. Dec. 318; Richardson v. York, 14 Me. 216; Washburn v. Cutter, 17 Minn.
361; Brewer v. Fleming, 51 Pa. St. 102; Coomalt v. Stanley, 3 Pa. L. J. Rep
389; Millar v. Humphries, 2 A. K. Marsh (Ky.) 446.
4. Whidden v. Seelye, 40 Me. 247, 63 Am. Dec. 661; Moody v. Whitney, 34 Me. 563.
5. Milltown Lbr. Co. v. Carter, 5 Ga. App. 344, 63 S. E. 270.
6. Wall v. Williams, 91 N. C. 477.
7. Trustees Dartmouth College v. Intn'l Paper Co., 132 Fed. 92, 94.
8. Clark v. Holden, 7 Gray (Mass.) 8, 66 Am. Dec. 450.
9. Wall v. Williams, 91 N. C. 477.
10. Richardson v. York, 14 Me. 216; Warren County v. Cans, 80 Miss. 76, 31 So. 539;
See McNally v. Connolly, 70 Cal. 3, 11 Pac. 320; and Cases cited 13 Am. & Eng.
Enc. Law, (2d Ed.) 680, Note. 4.
11. Brooks v. Rogers, 101 Ala. Ill, 13 So. 386; Warren County v. Gans, 80 Miss. 76;
Schermerhorn v. Buell, 4 Den. (N. Y.) 422.
CHOICE OF ACTIONS 79
or trespass for their value * if they are subsequently re-
moved by the tenant.
Since co-tenants of land each have an equal right of pos-
session of the premises, it is held that a tenant in common
cannot, except under statutory provisions, maintain an
action of trespass quare clausum fregit or trover for enter-
ing and removing timber; 2 nor does replevin he against a
co-tennant for seizing and holding timber which the first
tennant has cut for removal from the common land, 3 but
the cutting and removal of timber to which a tenant in
common is not entitled or the sale of the same will render
him liable to his co-tenants' in trover or trespass. 4 In the
absence of statute, or agreement to the contrary, the ordi-
nary measure of the liability of a tenant in common for
timber removed by him in good faith from the lands held
in common is the value of the timber while standing. 5
If no question as to title in land is involved, 6 a tenant in
common who receives money or other property for timber
unlawfully cut from the land held in common will be liable
in assumpsit to his co-tenants for their shares of the amount
received, 7 and it has been held that an action for an ac-
counting is not the proper method of determining the inter-
est of the co-tenants in a case of wrongful timber cutting. 8
77. Recovery by Replevin. Where the circumstances
are such as to sustain the action of replevin the owner may
not only recover the logs 9 cut from the trees wrongfully
severed but he may ordinarily follow the product of the
1. Lane v. Thompson, 43 N. H. 320; Schermerhorn v. Buell, 4 Den. (N. Y.) 422.
2. Kane v. Garfleld, 60 Vt. 79, 13 Atl. 800; Wait v. Richardson, 33 Vt. 190, 78 Am.
Dec. 622; But See, Mills, v. Richardson, 44 Me. 79.
3. Bohlen v. Arthurs, 115 U. 8. 482, 6 S. Ct. 114, 29 L. Ed. 454; See also, LeBarren
v. Babcock, 46 Hun. (N. Y.) 598, (afld. in 122 N. Y. 153, 25 N. E. 253, 19 Am.
St. Rep. 488, 9 L. R. A. 625).
4. Clow v. Plummer, 85 Mich. 550, 48 N. W. 795; See, Trout v. Kennedy, 47 Pa. St.
387; Wilson v. Reed, 3 Johns. (N. Y.) 175.
5. Paepcke-Leicht Lbr. Co. v. Collins, 85 Ark. 414, 108 S. W. 511; Dodge v. Davis,
85 Iowa 77, 52 N. W. 2; See also, Clow v. Plummer, 85 Mich. 550, 48 N. W. 795;
Walling v. Burroughs, 43 N. C. 60.
6. Kran v. Case, 123 111. App. 214.
7. Miller v. Miller, 7 Pick. (Mass.) 133, 19 Am. Dec. 264; White v. Brooks, 43 N. H.
402; Blake v. Milliden, 14 N. H. 213; Holt v. Robertson, McMull. Eq. (S. C.)
475; But see, Mooers v. Bunker, 29 N. H. 420; Gilmore v. Wilbur, 12 Pick.
(Mass.) 120, 22 Am. Dec. 410; Grossman v. Lauber, 29 Ind. 618.
8. U. S. v. Northern Pac. R. Co., 6 Mont. 351, 12 Pac. 769; See also, McGahan v.
Rondout Nat'l Bank, 156 U. S. 218, 15 S. Ct. 347, 39 L. Ed. 403.
9. Firmin v. Firnain, 9 Hun. (N. Y.) 572; Nesbitt v. St. Paul Lbr. Co., 21 Minn. 491;
Ely v. U. S., 4 Dillon 464 (U. S. Cir. Ct. Minn. 1867).
80 CIVIL TIMBER TRESPASS
rees as long as indentification is possible and regain possession
of railroad ties, l rails and posts, 2 lumber, 3 staves, 4
shingles, 5 cordwood, 6 charcoal, 7 or other goods and
articles manufactured from the trees. 8 However, in a
Michigan case in which the timber taken had been mani-
factured into hoops which had a value twenty-seven times
the value of the timber as originally converted, it was held
that the amount expended upon the timber by the defend-
ant was so much greater than the value of the timber
taken as to give the defendant title by accession, and the
plaintiff was given only the value of the timber originally
taken. 9 This was evidently a border line case. Re-
plevin cannot be maintained if the land from which the trees
were cut was in the adverse possession of the defendant or
of a third party. 10 Where through a valid sale growing
trees have been constructively separated from the land and
become chattels in contemplation of law the purchaser of
the trees may maintain replevin against a subsequent pur-
chaser of the land who cuts and removes the trees n or
against one who removes the trees under claim of a purchase
of them subsequent to the first purchase. 12
If it be established by the owner that the trees were cut
not only unlawfully but wilfully i. e., deliberately 13 by
one who knew u the trees did not belong to him the
1. Eaton v. Langley, 65 Ark. 448; Stotts v. Brookfleld, 55 Ark. 307, 18 S. W. 179;
McKinnis v. Little Rock etc. R. Co., 44 Ark. 210; Strubbee v. Cincinnati R.
Co., 78 Ky. 481, 39 Am. Rep. 251.
2. Snyder v. Vaux, 2 Rawle (Pa.) 423, 21 Am. Dec. 466; But See, Ricketts v. Dorrell,
55 Ind. 470 (1876).
3. Davis v. Easley, 13 111. 192; Wingate v. Smith, 20 Me. 287; Brown v. Sax, 7 Cow.
(N. Y.) 95.
4. Heard v. James, 49 Miss. 236.
5. Belts v. Lee, 5 Johns (N. Y.) 348, 4 Am. Dec. 368; Chandler v. Kelson, 9 Johns
(N. Y.) 362; Rice v. Hollenbeck, 19 Barb. (N. Y.) 664.
6. Brock v. Smith, 14 Ark. 431 ; Isle Royal Min. Co. v. Hertin, 37 Mich. 332, 26 Am.
Rep. 550.
7. Riddle v. Driver, 12 Ala. 590; Curtis v. Groat, 6 Johns. (N. Y.) 168, 5 Am. Dec.
204.
8. See Austin v. Baker, F. Moore 17, 20; Silsbury v. McCoon, 3 N. Y. 379, 53 Am.
Dec. 307; Murphy v. Sioux City etc., R. Co. 55 la. 473, 8 N. W. 320, 39 Am.
Rep. 175; Eaton v. Monroe, 52 Me. 63; Ryder v. Hathaway, 21 Pick. (Mass.)
298; Barry v. Brune 8 Hun. 395; Cf. Harding v. Coburn, 12 Mete. 333, 46 Am.
Dec. 680.
9. Whetherbee v. Green, 22 Mich. 311, 7 Am. Rep. 653.
10. Anderson v. Hapler, 34 111. 436, 85 Am. Dec. 318; Clarke v. Hyde, 25 Wash. 661.
66 Pac. 46.
11. Warren v. Leland, 2 Barb. (N. Y.) 613.
12. See Goodrich v. Hathaway, 1 Vt. 485; McCoy v. Herbert, 9 Leigh (Va.) 548 (1838) .
13. People v. Sheldon, 68 Cal. 434.
14. Wong v. Astoria, 13 Ore. 538.
RECOVERY BY REPLEVIN 81
article or goods manufactured from the trees if capable of
identification may generally be taken from an Innocent
purchaser, 1 as well as from one hav'ng notice of the
wrongful cutting, 2 however great may have been the change
in form since the cutting 3 Where the manufactured arti-
cle cannot be identified with the original by inspection the
original may be traced by testimony of witnesses through
the various processes of transformation into the form in
which specific recovery is sought. 4 By the weight of
authority it is held that if the original taking was not in-
tentionally wrongful and done in bad faith, the original
owner cannot maintain replevin if the material has been
transformed into an article substantially different from the
original form. 5 If the identity of the article wrongfully
taken is destroyed, the original owner must bring his action
for conversion, 6 and he may then recover the value at the
time when the identity was destroyed. 7
78. Conversion. Conversion has been defined as an
unauthorized assumption and exercise of the right of owner-
ship over goods or personal chattels belonging to another,
to the alteration of their condition or the exclusion of the
owner's rights. 8 A mere verbal assertion of ownership
under circumstances which indicate an intention to deprive
the real owner of his property and an ability to carry out
the intention may support an action for conversion, 9
but even the carrying away of the personal property of
another will not amount to conversion if there were no
tinent to deprive the real owner of his possession or property
1. McKinnis v. Little Rock etc. R. Co., 44 Ark. 210. Blodgett v. Seals, (Miss.) 29
So. 852.
2. Nelson v. Graff, 12 Fed. 389.
3. Gray v. Parker, 38 Mo. 160.
4. Silsbury v. McCoon, 3 N. Y. 379, 53 Am. Dec. 307 (corn converted into whiskey).
5. Heard v. James, 49 Miss. 236; Whetherbee v. Green, 22 Mich. 311, 7 Am. Rep.
653; Gray v. Parker, 38 Mo. 160; Potter v. Marde, 74 N. C. 36; Contra, Stotts v.
Brookfleld, 55 Ark. 307, 18 S. W. 179.
6. Snyder v. Vaux, 2 Rawle (Pa.) 423.
7. Silsbury v. McCoon, 3 N. Y. 379, 53 Am. Dec. 307. Gates v. Rifle Boom Co., 70
Mich. 309, 38 N. W. 245; Godwin v. Taenzer, 122 Tenn. 101, 119 S. W. 1133;
Bly v. U. S., 4 Dillon, 464.
8. Law Diet., Bouvier, p. 2016.
9. Gillet v. Roberts, 57 N. Y. 28.
82 CIVIL TIMBER TRESPASS
right. l A refusal to deliver a chattel to the rightful owner
when proper demand is made for it is prima facie evidence
of conversion and this presumption will be conclusive if
the refusal is not satisfactorily explained or justified. The
time of such demand or refusal will ordinarily constitute
the time of conversion. If the defendant is rightfully in
possession of the property, demand and refusal must pre-
cede an action for conversion, but neither is necessary if
the property was wrongfully taken, or acts of ownership or
other clear acts of conversion have been done by the de-
fendant. 2 In an action of trover the law of the place
where the conversion took place 3 and that which was in
effect at the time 4 of the conversion must be applied. If
personal property is taken from land, trover may be brought
by the person who has legal title to the land and the right
to an immediate possession of the property taken 5 or by
the one who has actual possession of the land at the time. 6
Constructive possession under a valid title will enable one to
maintain an action in trover for the taking of trees. 7
The plaintiff must have a right to possession 8 to maintain
the action and cannot rely upon the weakness of the de-
fendant's claim. 9 However one who fells timber or raises
crops on unoccupied or wild land may maintain the action
against one who converts the timber or crops. 10
The conversion of a part of a lot of personal goods under
circumstances which indicate an intention to convert all
1. State v. Staed, 72 Mo. App. 581; Gude Co. v. Farley, 25 Misc. (N. Y.) 502, 54
N. Y. Suppl. 998; Strickland v. Barrett, 20 Pick. (Mass.) 415.
However action does not depend upon proof that taking was "wrongful", Foster.
Lbr. Co. v. Kelly (Kan.) 58 Pac. 124. Cf . Bynum v. Gay 161 Ala. 140, 49 So.
757, 135 Am. Rep. 121.
2. Ensley Lbr. Co. v. Lewis, 121 Ala. 94, 25 So. 729; Crane Lbr. Co. v. Bellows, 116
Mich. 304, 74 N. W. 481; See, Ward v. Carson River Wood Co., 13 Nev. 44.
3. Holbrook v. Bowman, 62 N. H. 313; Torrance v. Buffalo Third Xat'l Bank, 70
Hun. (N. Y.) 44, 23 X. Y. Suppl. 1073.
4. Rogers v. Moore, Rice (S. C.) 60; But See, Tulley v. Tranor, 53 Cal. 274.
5. White v. Yawkey, 108 Ala. 270, 19 So. 360, 54 Am. St. Rep. 159, 32 L. R. A. 199;
Wilson v. Hoffman, 93 Mich. 72, 52 N. W. 1037, 32 Am. St. Rep. 485; Haven
v. Beidler Mfg. Co., 40 Mich. 286.
6. Skinner v. Pinney, 19 Fla. 42, 45 Am. Rep. 1; Woods v. Banks, 14 N. H. 101;
Branch v. Morrison, 51 N. C. 16; Martin v. Schofleld, 41 Wis. 167.
7. McCoy v. Herbert, 9 Leigh (Va.) 548, 33 Am. Dec. 256.
8. U. S. v. Loughrey, 172 U. S. 206, 19 Sup. Ct. 153, 43 L. Ed. 420.
9. Moore v. Walker, 124 Ala. 199, 26 So. 984.
10. Searles v. Oden, 13 Neb. 344, 14 N. W. 420; Lyon v. Sellew, 34 Hun. (X. Y.) 124.
CONVERSION OF TIMBER 83
will amount to a conversion of all, l and the same is true
where the conversion of the part has impaired the value
of that remaining even though the intention to convert the
remainder is not shown. 2 Conversion by an agent will
ordinarily render his principal liable, 3 but where a manu-
facturing corporation had leased a mill to another, the
fact that the lessee had conducted the mill in such manner
as to lead people doing business with him to believe that
the mill was operated by the owners was held not to make the
owners of the mill liable in trover for shingle blocks delivered
to the lessee of the mill. 4 An innocent purchaser of per-
sonal property at an invalid public sale will be liable for
conversion if he appropriates the property to his own use. 5
79. Conversion in Actions against an Innocent
Timber Trespasser. Although the doctrine of conversion
in the common law applied only to personalty and the action
of trover was not applicable to injuries to the realty, in
modern practice trover is one of the most common remedies
for the severance and asportation of growing trees. Un-
fortunately there has been no uniform theory as to the
basis upon which recovery of damages should be allowed,
and in many decisions, where substantially the same measure
of damages Was allowed, the legal ground upon which the
damages were fixed has been differently stated. The varia-
tion has arisen largely from the efforts of the court in each
case of innocent trespass to make reasonable allowance to
the trespasser for the expenditures which he had in good
faith laid out upon the timber, or other object severed from
the soil, so far as such expenditures had resulted in an en-
hanced value of the thing severed; but confusion has also
resulted partly from the more liberal manner in which some
1. Gentry v. Madden, 3 Ark. 127; Thompson v. Moesta, 27 Mich. 182; Brown v.
Ela, 67 N. H. 110, 30 Atl. 412; Corotinsky v. Cooper, 26 Misc. (N. Y.) 138, 55
N. Y. Suppl. 970. See Wolf v. Wolf, 158 Pa. St. 621, 28 Atl. 164.
2. Bowen v. Fenner, 40 Barb. (N. Y.) 383.
3. Southern Ry. v. Raney (Ala.) 23 So. 29; Kentucky Stave Co. v. Page, (Ky. 1910)
125 S. W. 170; Schlater v. Gay, 28 La. Ann. 340; Bockes v. McAfee & Son Co.,
165 Mich. 7, 130 N. W. 313; Ayres v. Hubbard, 71 Mich. 594, 40 N. W. 10;
Smith v. Webster, 23 Mich. 298 (Mistake of servant); Carman v.New York,14
Abb. Pr. (N. Y.) 301; But see Satterfleld v. Western Union Tel. Co., 23 IllApp.
446, and Fairchild v. New Orleans etc. R. Co., 60 Miss. 931, 45 Am. Rep. 427.
4. Fox v. Burlington Mfg. Co., 7 Wash. 391, 35 Pac. 126.
5. Harrell v. Harrell, 75 Ga. 697; Ward v. Carson River Wood Co., 13 Nev. 44; Rosa
v. McGriffin, 2 Tex. App. Civ. Gas. Sec. 458.
84 CIVIL TIMBER TRESPASS
courts regard technical rules of the common law and from
a loose use of the word "stumpage." Thus the amount
to which the owner of the timber is entitled when the tres-
pass was innocent has been stated, either directly or by
analogy, to be the value of the trees while standing; x
their value while standing plus the defendant's profit; 2
the profit received by defendant; 3 their value immediately
after severance; 4 their value after severance, less de-
fendant's expense of severing; 5 then* value after sever-
ance less what it would have cost the plaintiff to sever
them; 6 their value when removed from plaintiff's land; 7
their value at the time of the bringing of the action, less the
value added to them by the defendant; 8 their value at the
time of the bringing of an action, or at the time of demand
after severance, less the expense of improvement. 9
It is impossible to completely harmonize these diver-
gent holdings, but the cases specifically referring to timber
fall mainly into two general classes: those which, following
the analogy of some of the mineral cases, hold the measure
of damages to be value of the trees in pla3e b3fore any labor
was expended on them; and those which, resting upon the
fundamental principle of the common law that there can
be no conversion of realty, hold that the trees are not sus-
ceptible to conversion until they are severed and make the
trespasser liable for the value which the severed trees have
as chattels.
The theory that the measure of damages for intentional
trespass in the cutting and carrying away of trees should
be the value of the standing trees not only ignores the com-
mon law principle that there can be no conversion of realty,
but it is neither logical nor equitable when applied to trees
1. U. S. v. Northern Pac. R. Co., 67 Fed. 890; Ross v. Scott, 83 Tenn. (15 Lea) 479.
2. Anderson v. Besser, 131 Mich. 481, 91 N. W. 737; Winchester v. Craig, 33 Mich.
205; Skeels v. Starrett, 57 Mich. 350, 24 N. W. 98.
3. Colorado Min. Co. v. Turck, 70 Fed. 294, 17 C. C. A. 128, (Silver Ore).
4. U. S. v. Van Winkle, 113 Fed. 903, 51 C. C. A. 533.; Beede v. Lamprey, 64 N. H.
510.
5. Durant Mining Co. v. Percy Min. Co., 93 Fed. 166, 35 C. C. A. 252 (Ore.)
6. Morgan v. Powell, 3 Q. B. 278; See, Dunbar Furnace Co. v. Fairchild, 121 Pa.
St. 563.
7. Wright v. Skinner, 34 Fla. 453, 16 So. 335.
8. Peters Co. v. Lesh, 119 Ind. 98, 20 N. E. 291, 12 Am. St. Rep. 367.
9. Powers v. U. S., 119 Fed. 562, 56 C. C. A. 128; Herdic v. Young, 55 Pa. St. 176, 93
Am. Dec. 739.
CONVERSION BY AN INNOCENT TRESPASSER 85
that are valuable principally for the wood or timber in them.
This rule enables a wrongdoer to avoid full responsibility
for the consequences of his unlawful act. By its applica-
tion the owner of growing trees is forced, through the mis-
take or blunder of another, to forego the money profit or
personal satisfaction which he might have gained from
leaving the trees standing for a time. If the cutting of the
trees is to be made at once, the owner should have the op-
portunity of cutting them himself with an attendant profit,
or he should be compensated for the deprivation of such
property right by a reasonable sum in addition to the value
of the standing trees in lieu of such profit. The limitation
of the recovery to the value of the trees on the stump un-
doubtedly tends to encourage an unlawful interference with
the property of another on the part of the unscrupulous in
the hope of deriving pecuniary gain through a feigned inno-
cence. The value of the trees while standing may be a
just compensation for fruit or shade trees, provided proper
consideration is given to the productivity of the fruit trees
or to the additional value which fruit trees or shade trees
give to realty. Where actions have been brought for tres-
pass qua re clausum freyit, the faithful application of this
rule has afforded satisfactory results as to fruit trees, shade
trees and immature trees of timber species. Confusion has
arisen through an application of the same rules to actions
under trover as to those under trespass, and from a failure of
the courts to recognize the essential difference between
actions for the destruction of fruit, shade 1 or immature
timber trees, which have little or no value because of the
wood or timber therein, and actions for the cutting of timber
trees which have value chieily because of the suitability of
their wood for commercial uses.
In an effort to follow precedents the courts have applied
the special rules developed in decisions regarding fruit,
shade and ornamental trees to cases involving the cutting
and carrying away of merchantable timber; and on the
other hand, many decisions have sought to measure the
damage sustained through the destruction of fruit or shade
trees by an ascertainment of the value of such trees for wood
or timber purposes. Much uncertainty and conflict of
86 CIVIL TIMBER TRESPASS
authority has resulted. The rules applicable to fruit and
shade trees are better suited to cases involving the destruc-
tion of immature trees of timber species, for in such cases
the trees have no substantial value as chattels after their
severance, and the gist of the unlawful act is an injury to the
land and not a conversion of chattels which have been sev-
ered from the land.
With the development of the art of forestry in America
and the acceptance of the view that a forest is a crop,
a new and distinct viewpoint regarding the measure of
damages for the premature cutting or destruction of
timber trees will undoubtedly be adopted. It is probable
that the rules of law as to the damage allowable for the
unlawful cutting of mature timber trees will also be modified.
However, it is necessary for us to obtain, if possible, the
most satisfactory rule that at present has the sanction of
judicial authority.
There have been many decisions which have directly an-
nounced or have approved by dicta the rule that a tres-
passer who cuts growing trees under an honest mistake or
in reliance upon a bona fide claim of right is liable only for
the value of the trees while standing. 1
Ark. Of. Eaton v. Langley, 65 Ark. 448.
Mich. See citations under note 2, page 92.
Minn. State v. Clarke, 109 Minn. 123, 123 N. W. 54; Hasty v. Bonness, 86 X. W.
896; Mississippi River Logging Co. v. Page et al., 68 Minn. 269. 71 N.
W. 4; State v. Shevlin-Carpenter Co. 62 Minn. 99, 64 X. W. 81; King v.
Merriman, 38 Minn. 47, 35 X. W. 570; Whitney v. Huntington, 37 Minn.
197, 33 X. W. 561; Hinman v. Heyderstadt, 32 Minn. 250, 20 X. W. 155
(Grass). [Distinguishing Xesbitt v. St. Paul Lumber Co. 21 Minn.
491 (wilful)].
Mo. Missouri Sligo Furnace Co. v. Holart-Lee Tie Co. (Mo. App. 1911) 134
S. W. 585; Hosli v. Yokel 57 Mo. App. 622 (Grass). See Mueller v. St.
Louis etc. R. R. Co. 31 Mo. 262 (value of soil taken.)
N. Y. Fergusen v. Buckell, 101 X. Y. App. Div. 213, 91 X. Y. Suppl. 724;
Clark v. Holdridge 12 X. Y. App. Div. 613, 43 X. Y. Suppl. 115 (1897).
(Misinterprets Woodenware Co. v. TJ. S. 106 U. S. 432; contra
Finnin v. Firmin, 9 Hun 571.
Ohio. Lake Shore etc. R. Co. v. Hutchins 32 O. St. 571, 30 Am. Dec. 629; Hulett
v. Fairbanks, 1 O. Cir. Ct. 155, 1 O. Cir. Dec. 89.
Ore. Oregon & California R. R. v. Jackson, 21 Ore. 360, 28 Pac. 74.
Pa. Coxe v. England, 65 Pa. St. 212 (1870); Herdie v. Young 55 Pa. St. 176;
Forsyth v.. "Wells, 41 Pa. St. 291, 80 Am. Dec. 617. Cf. Sanderson v.
Haverstick, 8 Pa. St. 294; See Dunbar Furnace Co. v. Fairchild, 121 Pa.
St. 563, 15 Atl. 656.
S. C. Lewis v. Virginia-Carolina Chem. Co. 69 S. C. 364, 48 S. E. 280.
Tenn. Holt v. Hayes, 110 Tenn. 42, 73 S. W. 11; Ross v. Scott 83 Tenn. (15 Lea)
479; See Dougherty v. Chestnutt 86 Tenn. 1, 5 S. W. 444 (Marble in situ).
Tex. Louis Werner Stave Co. v. Pickering (Tex. Cir. App. 1909) 119 S. W. 333;
Callen v. Collins (Tex. Civ. App. 1909) 120 S. W. 546; Pettit v. Froth-
( Footnote 1 continued on next page)
CONVERSION BY AN INNOCENT TRESPASSER 87
In a still larger number of jurisdictions it has been held
that the measure of damages in a case of innocent timber
trespass, in which there is no damage to the land beyond
the cutting of the trees, is the value of the severed trees at
the time and place of the felling. :
(Footnote 1 concluded from preceding page)
ingham 48 Tex. Civ. App. 105, 100 S. W. 907; Young v. Lumber Co
(Tex. Civ. App.) 100 S. W. 874; Messcr v. Walton 42 Tex. Civ. App. 488,
92 S. W. 1037: Tex. & X. O. R. Co. v. Jones 34 Tex. Civ. App. 94; 77
S. W. 955; Texas etc. R. Co. v. White, 25 Tex. Civ. App. 27S (Sand).
Yt. Whiting v. Adams 00 Yt, 079, 30 Atl. 32. 44 Am. St. Rep. 875, 25 L. R. A.
598 (wilful, but indicates stumpage for innocent trespass); See Tilden v.
Johnson 52 Yt. G2X, 30 Am. Rep. 709 (Severed value, in trover for logs.)
Wash. Chappell v. Puget Sound Reduction Co., 27 Wash. 03. 07 Pac. 391.
W. Ya. Darnell v. Wilmoth 72 S. E. 1023 (1911).
U. S. Morgan v. l~. S. 109 Fed. 242: Dartmouth College v. Int'l Paper Co. 132
Fed. 92; I*. S. v. Homestake Min. Co. 117 Fed. 481 ; U. S. v. Van Winkle,
113 Fed. 903, 53 C. C. A. 533; U. S. v. Eccles 111 Fed. 490; (and see
dicta in U. S. v. Baxter 40 Fed. 350, 353, and I". S. v. Williams, 18 Fed.
475, indicating stumpage value for innocent trespass). All of the Fed-
eral decisions here given were rendered subsequent to Woodenware Co.
v. U. S. 100 U. S. 432, 1 S. Ct. 398, 27 L. Ed. 230, (Oct. 1882) See G.L.
O. Regulations, March 1, 1883; 1 L. D. 095.
Eng. See Eardley v. Granville, 3 Ch. D. 820, 45 L. J. Ch. (509, 34 L. T. Rep. X. S
009, 24 Wkly. Rep. 528; Fleming v. Simpson, L. J. K. B. O. S. 207, 2 M.
& R. 169; Hedley v. Scissons, 33 U. C. Q. B. 215; Martin v. Porter, 5
M. & W. 351; Morgan v. Powell, 3 Q. B. 278; Wood v. Morewood, 3 Q.
B., 440; Hilton v. Woods, L. R. 4 Eq. 432; Jegon v. Vivian, L. R. Ch.
App. 742.
Text Writers: Sedgwick on Damages, 9th. Ed. Pub. Baker. Voorhis & Co. X. Y.,
1912, Vol. 3 |). 1927, (Stumpage value).
-Sutherland on Damages, 3d Ed. Pub. Callaghan & Co. Chicago, 1904, Vol.
4, ]). 3293, (Severed value).
1. Ala. Zimmerman Mfg. Co. v. Dunn, 151 Ala. 435, 44 So. 533: Ivy Co. v. Ala-
bama Co., 135 Ala. 579, 33 So. 547, 93 Am. St. Rep. 40: White v. Yawkey,
10X Ala. 270. 19 So. 360, 54 Am. St. Rep. 159, 32 L. R. A. 199: Ivey v.
McQueen, 17 Ala. 40S.
Cal. Sampson v. Hammond, -1 Cal. 1S4.
Conn. Eldridge v. Gorman, 77 Conn. 09!), 00 All. (543: See Baldwin v. Porter, 12
Conn. 1st.
Fla. Peacock v. Feast er. 40 So. 74; Wright v. Skinner, 34 Fla. 453, 10 So. 335.
Ga, Coody v. Gress Lbr. Co. S2 Ga. 793, 10 S. E. 218; Smith v. Guilder, 22 Ga.
353 (Specifically stated.)
Ind. Ellis v. Wire. 33 Ind. 127, 5 Am. Rep. IS!) ^Corn).
Kan. Arn. v. Matthews, 3!) Kan. 272. IS Pac. 05 (Value where cut or at nearest
market.)
Ky. See Dennis v. Strunk, 108 S. W. 957. 32 Ky. L. Rep. 1230.
La. Ball Lbr. Co. v. Simms Lbr. Co., 121 La. 027, 10 So. 071, IS L. R. A. X. S
244; St. Paul v. Louisiana Cypress Lbr. Co., 110 La. 5S5, 10 So. 900
Guarantee Trust etc. Co. v. Drew Inv. Co.. 107 La. 251. 31 So. 730
Garden- v. Blanton, 35 La. Ann. SI 1 ; Schlater v. Gay, 2S La. Ann. 340
Yarboroiigh v. Nettles, 7 La. Ann. 110: Kastman v. Harris, I La. Ann.
193: Shepard v. Young. 2 La, Ann. 23S: Watterson v. .lelclie, 7 Rob. 20.
Me. Moody v. Whitney, 3S Me. 171. (il Am. Dec. 239: dishing v. Longfellow,
20 Me. 300.
Md. Peters v. Tilghman, 111 Md. 227. 73 Atl. 720: lilaen Co. v. McCullough,
59 Md. 403, 43 Am. Rep. 500; Franklin Coal Co. v. McMillan. 49 Md.
549, 33 Am. Rep. 280.
Mass. Cutts v. Spring, 15 Mass. 135 ("Value of trees," indefinite).
Miss. Bond v. Griflln, 74 Miss. 5!)!), 22 So. 1S7; Illinois C. R. Co. v. Le Blanc, 74
(Footnote 1 continued on next page)
88 CIVIL TIMBER TRESPASS
Even these numerous decisions along the same line have
failed to definitely establish a standard as to the precise
condition into which the trees must be brought before the
rule as to the. severed value is to be applied. It would
seem that the change from realty to personalty should be
considered effected as soon as the trees are severed and
before they are cut into logs or cordwood or otherwise im-
proved, but it is probable that wherever such transformation
was concurrent with and formed an essential part of the
operation of felling the trespasser would not be held entitled
in most juridsictions to an allowance therefor, while if such
transformation were performed at a subsequent time and
as a distinct operation from the felling an allowance might
be made. There seems to be no sound reason why the
owner of the trees should gain through expenditures by
one who is guilty of no bad faith in severing them, and on
the other hand, as stated above, the standing value does
not afford full compensation for the injury. Though the
cost of severance may not afford a logical -or accurate measure
of the additional damage suffered, the application of this
rule would naturally have a salutary effect in restraining
one from negligence in the matter of cutting trees belong-
ing to another and at the same time satisfy the technical
requirements of the theory of the law as to the character
of property subject to conversion.
It will be noted that the holdings of the Federal court?
(Footnote 1 concluded from preceding page)
Miss. 626; Heard v. James, 49 Miss. 236. (Cases considered together
indicate severed value.)
Neb. See, Carpenter v. Lingenfelter, 42 Neb. 728 (Grass.)
N. H. Beede v. Lamprey, 64 N. H. 510, 15 Atl. 133, 10 Am. St. Rep. 426; Hitch-
cock v. Libby, 70 N. H. 399, 47 Atl. 269 (Loosely stated) ; But see Foote
v. Merrill, 54 N. H. 490, 20 Am. Rep, 151, and Cf. Adams v. Blodgett
47 N. H. 219 (Hemlock bark stripped.)
N. J. Dawson v. Amey (Ch. 1888), 13 Atl. 667.
N. Y. Firmin v. Finnin, 9 Hun 571.
N. C. Gaskins v. Davis, 115 N. C. 85, 20 S. E. 188, 44 Am. St. Rep. 439, 25
L. R. A. 813; Bennett v. Thompson 35 N. C. (13 Ired.) 146.
Wis. Tuttle v. Wilson, 52 Wis. 643, 9 N. W. 822; Wright v. Bolles Woodenware
Co., 50 Wise. 167, 6 N. W. 508; Single v. Schneider, 30 Wis. 574; Tyson
v. McGuinness 25 Wis. 656.
U. S. United States v. St. Anthony R. R. Co., 192 U. S. 524; 24 S. Ct. 333,
(Afl'g 114 Fed. 722, which, however, awarded standing value, the sev-
ered value not having been shown.) Pine River Logging Co. v. United
States, 186 U. S. 279; Cf. same case, 89 Fed. 919. See, Bolles v. Wooden-
ware Co., v. U. S. 106 U. S. 432; Fisher v. Brown, 70 Fed. 570, 37 U. S.
App. 407.
Can. Morton v. McDowell, 7 U. C. Q. B. 338.
CONVERSION BY AN INNOCENT TRESPASSER 89
of the United States have not been consistent. The vari-
ance of the Federal decisions from what appears to be the
better holding evidently arose chiefly from a lack of clear
expression in the general discussion of the rule of damages
against an innocent trespasser presented in the case of
the Bolles Woodenware Company v. the United States,
which came before the United States Supreme Court at
the October term of 1882.
In instructions of the General Land Office to its field
agents, which were dated March 1, 1883 (1 L. D. 695), and
issued directly after the publication of the supreme court
decision in the Woodenware case, the Department of the
Interior officially interpreted the dictum in that decision
regarding innocent trespass as holding that the measure of
damages in unintentional trespass was the value of the tim-
ber as it stood in the tree before being cut. This inter-
pretation necessarily ignored the significant fact that the
only measure of damage? specifically discussed as appli-
cable to the case then before the court, provided the evi-
dence had not shown the trespass to be a wilful one, was
the value of the trees after they were cut and at the place of
cutting. Nevertheless, the interpretation placed upon this
decision by the Department of the Interior was either fol-
lowed, or independently adopted, by the Departmet of
Justice, the Federal courts and many of the state courts.
The stumpage value has been held to be the measure of
damages in many decisions besides those given under note
1, page 86 above. x
In recent years the executive departments and the
Federal courts have shown a disposition to interpret the
dictum in the Woodenware case as holding that the value
of the trees after severance should be the measure of dam-
ages for innocent trespass, especially in view of what the
1. U. S. v. Northern Pac. R. Co., 67 Fed. 890 (1895); Gentry v. U. S., 101 Fed. 51
41 C. C. A. 185 (1900); U. 8. v. Teller, 106 'Fed. 447, 45 C. C. A. 416
(1901) ; U. S. v. Powers, 119 Fed. 562, 56 C. C. A. 128 (1903) Holding not clear;
U. S. v. McKee 128 Fed. 1002 (1904), Value of bark while on the trees.
.S*e American Union Tel. Co. v. Middleton, 80 N. Y. 408.
90 CIVIL TIMBER TRESPASS
same court said in the later case of the United States v. the
Saint Anthony Railroad Company. *
The double meaning in which the word "stumpage" has
been used as designating either the value of timber while
standing or its value directly after severance has also re-
sulted in a diversity of holdings even where one court in-
tended to follow the principles announced in an earlier case. 2
It is well settled that whether an action be brought for
damages to the land or for the value of the trees themselves,
the measure of damages, in cases of innocent trespass, will
not be the value of the severed logs at some place to which
they have been transported away from the land on which
they were cut. 3
80. The Rule in Wisconsin Regarding Innocent Tim-
ber Trespass. The early Wisconsin decisions held that the
measure of damages in cases of innocent trespass was the val-
ue of the severed trees at the time and place of the cutting. 4
A later case held that this was the rule even though the
cutting and carrying away were done knowingly and wil-
fully. 5 At the first session of the Wisconsin legislature
following the announcement of this doctrine, an act 6 was
passed providing th'Bt where trees were unlawfully cut the
'!
1. (a) See United States decisions cited under Note 1, page 87.
Bunker Hill & Sullivan Min. & Con. Co., 226 U. S. 548, affm. 178 Fed. 914
(Case as reported does not show finding of jury, but court specifically instruct-
ed jury that measure of damages for innocent trespass was value of trees after
they were cut down.)
(6) John W. Henderson case, 40 L. D. 518 (decided April 1, 1912). This decision
was recalled and vacated on February 16, 1914, 43 L. D. 106, and new instruc-
tions given field agents on Feb. 25, 1914, to demand the value of standing trees;
but on June 22, 1915, 44 L. D. p. 112, chiefs of field divisions of the General
Land Office were again directed to demand the severed value in cases of inno-
cent trespass, in instructions which indicated that both the Solicitor of the
Treasury and the Attorney General considered the value of the severed trees the
true measure of damages in cases of innocent trespass.
(c) Opin. Sol. Dep. Agr., Vol. 1, p. 298. The abandonment of this position in in-
structions effective October 1, 1915 (p. 7. Trespass Division, National Forest
Manual) is not in accord with the latest holdings of the other Executive De-
partments.
2. See notes 9 and 10 of page 18.
3. Cf. Wright v. Skinner, 34 Fla. 453, 16 So. 335; Gushing v. Longfellow, 26 Me. 306;
Ayres v. Hubbard, X Mich. 322, 23 N. W. 829, 58 Am. Rep. 361; Gaskins v.
Davis, 115 N C. 85, 20 S. E. 188, 44 Am. St. Rep. 439, 25 L. R. A. 813; Coxe v.
England. 65 Pa. St. 212; Weymouth v. Chicago & N. W. R. Co., 17 Wis. 550,
84 Am. Dec. 763.
4. Weymouth v. Chicago and N. W. R. Co., 17 Wis. 550, 84 Am. Dec. 763; Single v.
Schneider, 24 Wis. 299; Hungerford v. Redford, 29 Wis. 345.
5. Single v. Schneider, 30 Wis. 570 (decided in 1872).
6. Chap. 263, Laws of 1873, Wis. St. (1898) Sec. 4269.
THE WISCONSIN RULE 91
owner might recover the highest market value which they
had had between the cutting and the trial in whatever
form they might have been put by the defendant, or by a
purchaser from him with notice of the unlawful cutting. *
except where the defendant should file an affidavit, in ac-
cordance with provisions of the statute, as to mistake, and
support the affidavit by other satisfactory evidence 2
The act does not apply where the cutting was done under a
bona fide claim of title. 3 It has been held that a conversion
was not made in good faith where the defendant knew all
the facts but believed that in view of such facts he had a
right to take the timber. 4 The statute applies where
the cutting was done by an agent, if the defendant upon the
discovery of the facts, declines to restore the logs to the
owner, 5 and also where the timber cut was not within
the terms of a contract held by the defendant for the re-
moval of timber. 6 The statute does not apply to an in-
nocent purchaser who takes from a trespasser, 7 and notice
on the part of the purchaser will not be presumed but must
be proven by the plaintiff. 8 It does not apply in actions
against the personal representative of the trespasser, or a
purchaser from him, from whom only the value of the
severed trees can be collected. 9 Thus the Wisconsin
courts hold the statute to be punitive in character and ap-
plicable only to cases of wilful trespass, and follow what
they conceive to be the common law rule in cases of in-
nocent trespass.
1. McNaughton v. Borth, 136 Wis. 543, 117 N. W. 1031; Smith v. Morgan, 73 Wis.
375, 41 N. W. 532; Arpin v. Burch, 68 Wis. 619, 32 N. W. .681; Schweitzer v.
Connor, 57 Wis. 177, 14 N. W. 922; Tuttle v. Wilson, 52 Wis. 643, 9 N. W. 822:
Haseltine v. Mosher, 51 Wis. 443, 8 N. W. 273; See, Webster v. Moe, 35 Wis. 75.
2. Everett v. Gores, 89 Wis. 421, 62 N. W. 82; Smith v. Morgan, 68 Wis. 358, 32 N.
W. 135; Webber v. Quaw, 46 Wis. 118, 49 N. W. 830; Brown v. Bsosworth, 58
Wis. 379, 17 N. W. 241; Cf. Cohen v. Neeves, 40 Wis. 393.
3. Befay v. Wheeler, 84 Wis. 13i5, 53 N. W. 1121; Fleming v. Sherry, 72 Wis. 503,
40 N. W. 375.
4. Warren v. Putnam. 68 Wis. 481, 32 N. W. 533; Cook Land etc. Co, v. Ooonto Co.,
134 Wis. 426, 114 N. W. 823; Smith v. Morgan, 68 Wis. 358, 32 N. W. 135;
Fleming v. Sherry, 72 Wis. 5)03, 4O N. W. 375; St. Croix Land etc. Co. v. Ritchie,
78 Wis. 492, 47 N. W. 657; See, Smith v. Sherry, 54 Wis. 114, 11 N. W. 465.
5. Lee v. Lord, 76 Wis. 582). 45 N. W. 601.
6. Everett v. Gores, 89 Wis. 421. 62 N. W. 82.
7. Tuttle v. Wilson, 52 Wis. 643, 9 N. W. 822; Wright v. Bolles Woodenware Co., 50
Wis. 167, 6 N. W. 508.
S. Tucker v. Cole, 54 Wis. 539, 11 N. W. 703; Tuttle v. Wilson, 52 Wis. 643; Cf.
Joseph Dessert Lbr. Co. v. Wadleigh, 103 Wis. 318, 79 N. W. 237. (Constr. St.
re notice.)
9. Cotter v. Plummer, 72 Wis. 476. 40 N. W. 379.
92 CIVIL TIMBER TRESPASS
81 The Rule in Michigan Regarding Innocent
Timber Trespass. Although the language in some deci-
sions in that state has indicated that the measure of dama-
ges in Michigan would be the value of the trees while stand-
ing, 1 the rule there undoubtedly is their value standing
plus a reasonable profit. 2 If the formal requirement of
the common law, that things attached to realty must be
severed before they can be converted, is ignored and an
attempt is made to arrive at the compensation to which
the plaintiff is justly entitled for the wrongful taking on the
ground that he had a right to cut and market his own trees,
the Michigan rule is apparently the most satisfactory one.
It involves the difficult task of determining the profit real-
ized by the trespasser, or what a reasonable profit would be;
and yet this profit would ordinarily be proved by the same
kind of evidence as the value of the trees while standing
and would be as susceptible to a reasonable certainty of
determinaticm.
82. The Liability of an Innocent Purchaser from
an Unintentional Trespasser. If growing trees are cut
by an unintentional trespasser, or under a bona fide claim
of right, the innocent purchaser of the logs or other products
manufactured from the trees will be liable only for the
value at the time of the original wrongful taking. 3 Such
purchaser takes the property subject to the identical claims
which could have been enforced against the trespasser. He
will be liable to the same extent as his vendor. Thus in
jurisdictions where the measure of damages recoverable
1. Michigan Land etc. Co. v. Deer Lake Co., 60 Mich. 143, 27 N. W. 10, 1 Am. St.
Rep. 491; Wood v. Elliott, 51 .Mich. 320, 16 N. W. 666.
2. Anderson v. Besser, 131 Mich. 481, 91 N. W. 737; Ayres v. Hubbard, 71 Mich.
594. 40 N. W. 10: 57 Mich. 322, 23 N. W. 829, 58 Am. Rep. 361; Skeels v. Star-
rett, 57 Mich. 350, 24 N. W. 98; Winchester v. Craig, 33 Mich. 205; Greeley v.
Stilson, 27 Mich, 152; See, Busch v. Fisher, 89 Mich. 200; Gates v. Rifle Boom
Co., 70 Mich. 309, 38 N. W. 245, Cf. Eaton v. Langley. 65 Ark. 448.
3. Birmingham Mineral R. Co. v. Tenn. Coal Co., 127 Ala. 137, 28 So. 679) White v.
Yawkey, 108 Ala. 270, 19 So. 360; Lake Shore etc. R. Co. v. Hutchins, 37 Ohio
St. 282; Texas etc. R. Co. v. Jones, 34 Tex. Civ. App. 94, 77 S. W. 955; Holies
Woodenware Co. v. United States, 106 U. S. 432; See, Barnes v. Weikel Chair
Co., 89 S. W. 222, 28 Ky. L. Rep. 315.
Stone v. U. S., 167 U. S. 178, 17 S. Ct. 778, 42 L. Ed. 127 (Aff'g 64 Fed. 667, 12
C. C. A. 451); Anderson v. U.S.. 152 Fed. 87, 81 C. C. A., 311 ;U. S. v. Norris
41 Fed. 424. Cf. U. S. v. Price, 109 Fed. 239, 48 C. C. A. 331. (Title of U. S.
not divested by saile, subsequent to demand by U. S. Agent, to a R. R. Co.
which could have taken the timber standing.
INNOCENT PURCHASER FROM INNOCENT TRESPASSER 93
from the innocent trespasser is the value of the trees while
standing, the innocent purchaser will be held for such value;
and in jurisdictions where the measure of damages is the
value of the trees immediately after severance, or some diff-
erent standard, the innocent purchaser must respond in
damages in the amount there allowed against the one who
severs growing trees accidentally or under claim of title.
83. The Liability of a Wilful Trespasser or of his
Vendee with Notice. If trees are cut wilfully, i. e., with a
knowledge that the cutting was unlawful or with gross
negligence or wanton recklessness, the measure of damages
in an action for conversion, in nearly all jurisdictions, will
be the value at the time of demand or the bringing of the
suit, if the product of the trees is in the hands of the original
trespasser or one who has purchased from him with notice of
the unlawful cutting of the trees. The original trespasser
or the purchaser with notice will be entitled to no allowance
for what has been expended upon such product. :
Ark. Nicklase v. Morrison, 56 Ark. 553, 20 S. W. 414.
Colo. Omaha & G. 8. & R. Co. v. Tabor, 13 Colo. 41.
Ga. Parker v. Waycross etc. R. Co., 81 Ga. 387.
Ind. Ellis v. Wire, 33 Ind. 127, 5 Am. Rep. 189; See Emerson v. Seller, 105 Ind.
266, 4 N. E. 854; Ayers v, Hobbs, 41 Ind. App. 576, 84 N. E. 554.
Iowa. Stuart v. Phelps, 39 la. 14, 18 Am. Rep. 39 (Growing crop).
Ky. Kentucky Stave Co. v. Page (Ky. 1910), 125 S. W. 170 (Act of Agent.);
Jones Lbr. Co. v. Gatliff, 82 S. W. 295, 26 Ky. L. Rep. 616; Bergen v.
Sears 67 S. W. 1002, 24 Ky. L. Rep. 80.
La. Guarantee Trust & Safe Dep. Co. v. Drew Inv. Co., 107 La. 250 (1902)
(Mistake as to law). Guarantee T. & S. D. Co. v. Holsell, 107 La. 745, 31
So. 999.
Mich. Moret v. Mason, 106 Mich. 340, 64 N. W. 193; Empire Mfg. Co. v. Stuart,
46 Mich. 485; Grant v. Smith, 26 Mich. 201; Final v. Backus, 18 Mich.
218; Symes v. Oliver, 13 Mich. 9.
Minn. Hastay v. Bonness, 84 Minn. 120, 86 N. W. 896; Mississippi River Logging
Co. v. Page, 68 Minn. 269, 71 N. W. 4; Shepard v. Pettit, 30 Minn. 481.
Miss. Heard v. James, 49 Miss. 236.
Mo. Sligo Furnace Co. v. Holart-Lee Tie Co.. 134 S. W. 585 (Mo. App.)
N. Y. Stanton v. Pritchard, 4 Hun 266; Rice v. Hollenbeck, 19 Barb. 664; Baker
v. Wheeler, 8 Wend. 505, 24 Am. Dec. 66; Brown v. Sax, 7 Cow. 95.
Nev. Ward v. Carson River Wood Co., 13 Nev. 44.
Tenn. Holt v. Hayes, 110 Tenn. 42, 73 S. W. 111.
Tex. Bayle v. Norris, (Tex. Civ. App.) 134 S. W. 767; Emporia Lbr. Co. v.
League (Tex Civ. App.) 105 S. W. 1167; Ripy v. Less, 55 Tex. Civ. App.
492, 118 S. W. 1084; Cummings v. Masterton, 42 Tex. Civ. App. 549,
93 S. W. 500. Brown v. Pope. 27 Tex. Civ. App. 225, 65 S. W. 42; Ry.
Co. v. Starr, 22 Tex. Civ. App. 353, 55 S. W. 393.
Vt. Whiting v. Adams, 66 Vt. 679, 30 Atl. 32, 44 Am. St. Rep. 875, 25 L. R. A.
598 (1894).
Wis. Underwood v. Paine Lbr. Co., 79 Wis. 592, 48 N. W. 673; Brown v. Bos-
worth, 58 Wis. 379, 17 N. W. 241.
U S. Pine River Logging Co. v. U. S., 186 U. S. 279, 22 S. Ct. 920, 40 L. Ed.
(Footnote 1 continued on next page)
94 . CIVIL TIMBER TRESPASS
It has been held that if the negligence which led to the tres-
pass was not such as to indicate wantonness or recklenssss,
the defendant should be given an allowance for expendi-
tures upon the trees after their severance. 1
84. The Liability of an Innocent Purchaser from
a Wilful Trespasser. If the product of the trees has
come into the hands of an innocent purchaser the measure
of damages against such person in most jurisdictions will
be the value at the time that he converted the product to
his use, and this will ordinarily be the price which he paid. -
Some of the earlier cases held that the plaintiff was entitled
to the value of the products where found even though they
were in the hands of an innocent purchaser, 3 but this
is not in accord with the weight of authority.
85. Exemplary Damages May be Allowed in Cases
of Wilful Trespass. Where it is alleged that a trespass is
wilful evidence as to the motive of the trespasser is admissi-
(Footnote 1 concluded from preceding page)
1164; Cf. same case, 89 Fed. 907, 919; Bolles Woodenware Co. v. U. S..
106 U. 8. 432, 1 S. Ct. 398, 27 L. Ed. 230; Cunningham v. Metropolitan
Lbr. Co. 110 Fed. 332, 49 C. C. A. 72; U. S. v. Baxter, 46 Fed. 350; U. S.
v. Ordway, 30 Fed. 30; U. S. v. Williams, 18 Fed. 475, 9 Sawy. 374; U. S.
v. Mills, 9 Fed. 684: See Fisher v. Brown, 70 Fed. 570, 37 U. S. App. 407,
and Bunker Hill & Sullivan Min. & Con. Co. v. U. S. 226 U. S. 548.
aflfm. 178 Fed. 914.
Gan. Union Bank v. Rideau Lbr. Co., 4 Ont. L. Rep. 721; Cf. 3 Ont. L. Rep.
269; Smith v. Baechler, 18 Ont. 293.
1. Trustees Dartmouth College v. Int'l Paper Co. 132 Fed. 99.
2. Ark. Central Coal and Coke Co. v. John Henry Shoe Co., 69 Ark. 302, 63 S. W.
49.
Ga. ' Milltown Lbr. Co. v. Carter, 5 Ga. App. 344, 63 S. E. 270.
Ky. Moss Tie Co. v. Myers (1909 Ky.) 116 S. W. 255; Jones Lbr. Co. v. Gatliff.
82 S. W. 295, 26 Ky. L. Rep. 616.
Mass. Glaspy v. Cabot, 135 Mass. 435.
Me. Powers v. Tilley, 87 Me. 34, 32 Atl. 714, 47 Am. St. Rep. 304; See, Wing v.
Milliken, 91 Me. 387, 40 Atl. 138, 64 Am. St. Rep. 238.
Mich. Tuttle v. White, 46 Mich. 485, 9 N. W. 528, 41 Am. Rep. 175; Salt marsh v.
Chi. & G. T. Ry. 122 Mich. 103, 80 X. W. 981.
Minn. Hoxsie v. Empire Lbr. Co., 41 Minn. 548, 43 N. W. 476; Nesbitt v. St.
Paul Lbr. Co., 21 Minn. 491.
Nev. See Ward v. Carson River Wood Co., 13 Xev. 44.
N. Y. Silsbury v. McCoon. 3 N. Y. 379, 53 Am. Dec. 307; Cf. Wallingford v.
Riser, 191 N. Y. 392, 84 N. E. 295, 123 Am. St. Rep. 600, 55 L. R. A. N.
S. 1126 (Afl'm'd 110 N. Y. App. Div. 503, 96 N. Y. Suppl. 981).
Tenn, Godwin v. Taenzer, 122 Tenn. 101, 119, S. W. 1133: See McGill v. Chil-
house Lbr. Co., Ill Tenn. 552. 82 S. W. 210.
Tex. Missouri Kan. & Tex. Ry. Co. v. Starr (Tex. Civ. App) 55 S. W. 393.
Vt. Hassam v. Safford Lbr. Co., 82 Vt. 444, 74 Atl. 197.
U. S. Bolles Wooden Ware Co. v. U. S., 106 U. S. 432, 27 L. Ed. 230; Potter v.
U. S., 122 Fed. 49, 58 C. C. A. 231; Stone v. U. S., 64 Fed. 667; U. S. v.
Perkins et al, 44 Fed. 670.
See 47 Cent. Dig. Tit. "Trover and Conv., Sec. 270.
3. Ely v. United States, 4 Dillon 464 (C. C. 8th Dist.)
EXEMPLARY DAMAGES FOR WILFUL TRESPASS 95
ble. * The character of evidence necessary to indicate
wantonness on the part of the trespasser has been denned, 2
and it has been held that the taking of timber from lands
of the United States was in itself prima prima facie evi-
dence that the trespass was wilful. 3 If the trespass is
proven or admitted, the burden of proof is upon the de-
fendant to show that it was not wilful, 4 and the courts
will generally allow exemplary damages in civil actions
where the wrongful cutting of timber was deliberately
done with a knowledge of its unlawfulness, 5 or when the
conduct of the trespasser was grossly negligent, 6 reckless, 7
wanton, 8 malicious, 9 or fraudulent. 10 It has been held
that exemplary damages may be given even when the plain-
tiff does not recover substantial actual damages; n but they
will not be given if the cutting was done under a bona fide
claim of right 12 and with no fruadulent purpose or inten-
tional wrong, 13 except where there are aggravating circum-
stances. 14 The higher courts will not ordinarily disturb
the verdict rendered in a lower court for the unlawful cutting
of trees if there was no error in the instructions to the jury,
but if the damages allowed below are clearly excessive the
verdict will be set aside. 15
1. Kentucky Stave Co. v. Page (Ky. 1910), 125 S. W. 170.
2. Paris v. Amer. Tel. etc. Co., 84 S. C. 102, 65 S. E. 1017.
3. U. 8. v. HomestakeMin. Co., 117 Fed. 481, 54 C. C. A. 303; Cf. U.S. v. Gentry.
119 Fed. 70, 55 C. C. A. 658.
4. Miss. River Logging Co. v. Pae, 68 Minn. 269, 71 N. W. 4; Trustees Dartmouth
College v. Int'l Paper Co. 132 Fed. 99.
5. Bentley v. Fisher Lbr. etc. Co., 51 La. Ann. 451, 25 So. 262; Tissot v. Great So.
Tel. & Tel. Co., 39 La. Ann. 996; Ward v. Ward, 41 Iowa 686; Smith v. Thomp-
son, 55 Md. 5, 39 Am. Rep. 409; Boetcher v. Staples, 27 Minn. 308, 38 Am. Rep.
295; Storm v. Green, 51 Miss. 103; Ensley v. Nashville, 58 Tenn. 144; Board-
man v. Goldsmith, 48 Vt. 403; Day v. Woodworth, 13 How. 362, 371; U. S. v.
Taylor, 35 Fed. 484; Willis v. Miller et al., 29 Fed. 238; Barry v. Edmunds 116
U. S. 550; Berry v. Fletcher, 1 Dill. 67; Refused in N. J. where no peculiar
injury, HoUister v. Ruddy 48 Atl. 520. See Note 12 infra.
6. Emporia Lumber Co. v. League (Tex. Civ. App. 1907), 105 S. W. 1167; Kolb v.
Bankhead, 18 Tex. 228.
7. Berry v. Fletcher, 3 Fed. Gas. No. 1357, 1 Dill. 67.
8. Jones Lbr. Co. v. Gatliff, 82 S. W. 295, 29 Ky. L. Rep. 616.
9. Berry v. Fletcher, 3 Fed. Cas. No. 1357, 1 Dill. 67; Cosgriff v. Miller, 10 Wyo.
190, 68 Pac. 206. 98 Am. St. Rep. 977.
10. Kentucky Stave Co. v. Page, (Ky. 1910) 125 S. W. 170; Cumberland Tel. etc. Co.
v. Cassedy, 78 Miss. 666, 29 So. 762.
11. Rothschild v. Bay City Lumber Co., 139 Ala. 571, 36 So. 785.
12. Hollister v. Ruddy, 66 N. J. L. 68, 48 Atl. 520.
13. Keystone Lumber Co. v. McGrath (Miss. 1897), 21 So. 301; Gwaitney v. Scottish
Carolina Timber etc. Co., 115 N. C. 579, 20 S. E. 465.
14. Cumberland Tel. etc. Co. v. Cassedy, 78 Miss. 666, 29 So. 762.
15. Cumberland Tel. etc. Co. v. Cassedy, 78 Miss. 666, 29 So. 762.
See Watterson v. Jetche, 7 Rob. (La.) 20 (1844); Tissot v. Great S. T & T. Co. 39
La. Ann. 996, 3 So. 261; Ferguson v. Buckell, 101 App. Div. 213, 91 N. Y.
Suppl. 724.
CHAPTER VIII
STATUTORY CIVIL LIABILITY FOR TIMBER TRES-
PASS
86. The Development of Timber Trespass Legisla-
tion in America. Quite contrary to the common belief
the first legislation in America making the cutting of timber
unlawful was directed not to the prevention of harm to pri-
vate property but to the protection of the public lands,
generally described in colonial laws and documents as the
"commons." By order of March 29, 1626, 1 the exportation
of timber without the consent of the governor and council
was forbidden in the colony that had been founded at Ply-
mouth in December, 1620. On November 7, 1632, 2 the
general court at Boston forbade the cutting of paling from
public ground except with the approval of the proper public
official. Similar regulations as to the use of timber from
common or public lands were early promulgated in other
English colonies. 3 These enactments were soon followed
by laws imposing liability for single or multiple damages
or penalties for the cutting of timber from private lands
without the consent of the owner. 4 In nearly every colony
the civil liabilities imposed by the earlier acts proved in-
sufficient to prevent trespass and later laws increased the
exemplary damages or provided for imprisonment. 5
Subsequent to the institution of a national government
new timber trespass statutes were enacted in nearly all of the
original states and as new states or territories were erected
1. Compact, Charter and Laws, Colony of New Plymouth, Boston, 1836, p 28.
2. Records of Mass. Bay Colony, Boston, 1853, Vol. 1, p. 101.
3. Rhode Island, 1638; Connecticut, 1639; New Hampshire, 1640; New Jersey,
1666; New York, 1699.
4. Rhode Island, 1647; New Jersey, 1681; Pennsylvania, 1683; Massachusetts,
1694; New Hampshire, 1697; New York' 1699; Maryland, 1704; Connecticut,
1718; Delaware, 1741.
5. For discussion of such laws see: Forest Legislation in America Prior to March 4,
1789, Kinney, (Published as Bulletin 370, Cornell University Agr. Exp. Sta...
January, 1916), pp. 371-380.
96
DEVELOPMENT OF TRESPASS LEGISLATION 97
laws of this character were made effective in each. While
some statutes, like the early laws of Ohio, Indiana, Alabama
and Mississippi, named the species of which the cutting was
prohibited, the majority of the state statutes made one liable
for the cutting of any tree upon the land of another without
his consent. A few statutes made an offender liable for
single damages only but most of them prescribed double or
treble damages and a few prescribed quintuple damages
where the circumstances of the trespass were aggravated.
Other statutes provided a fixed penalty for each 'tree sev-
ered, or such a penalty for the cutting of trees of a certain
species, quality or size and multiple damages for other trees
or underwood.
In practically every state laws were early enacted making
the cutting of the tree of another without his consent a mis-
demeanor and providing a fine and imprisonment for such
offense in addition to liability for civil damages. The cut-
ting of timber from state lands was also made a crime in
most states. In nearly all states special statutes have been
enacted making it a misdemeanor to cut or injure fruit,
shade., or ornamental trees standing upon either private or
public land.
Civil and criminal timber trespass laws have been so
numerous in the different jurisdictions now comprised in the
forty-eight states of the American Union that it is imprac-
ticable to attempt to trace at this time and place the de-
velopment in each state, or even to cite the multitudinous
enactments in the various states.
87. Multiple Damages and Penalties under Stat-
utes. In many states statutes provide for exemplary
damages in the form of double or treble damages, or penal-
ties, for the unlawful cutting of timber on the land of an-
other or on public land. l
1. Ala. Civil Code, 1907, Sec. 6035-6038, Chap. 143 (Penalties).
Ark. Digest of Statutes, 1904, Sec. 7976 and 7978 (Double and treble).
Cal. Civil Code, Deering, 1915, Sec. 3346, p. 800, (Treble damages).
Col. Annotated Statutes, Mills, 1912, Sec. 2185 (Exemplary, not treble).
Conn. General Statutes, Revision of 1902, Sec. 1097 (Treble value for trees over
1 ft. diam.; $1.00 under 1 ft.)
Ga. Code of 1914, Sec. 4515 (Not treble, but rule for wilful and innocent tres-
pass.)
Ida. Revised Statutes, 1908, Sec. 4531 (Treble damages).
(Footnote 1 continued on next page)
98 STATUTORY CIVIL LIABILITY FOR TIMBER TRASPASS
The multiple damages and penalties provided by these
acts have been imposed in numerous decisions. : Many of
(Footnote 1 concluded from preceding page)
111. Revised Statutes, Hurd, 1912, Chap. 136, Sec. 5, p. 2314 (Penalties).
Ind. Annotated Statutes, Burns, 1914, Sec. 2301, (Double damages.) See Sec.
2308.
Iowa Iowa. Code of 1897, Sec. 4306 (Treble damages).
Kan. General Statutes, Dassler, 1909.* Sec. 9692 (Treble dam. and fine).
Me. . Revised Statutes, 1903, Chap. 97, Sec. 9, p. 828 (damages).
Mass. Revised Laws, 1902, Chap. 185, Sees. 7 and 8, p. 1639, Vol. 2 (Treble dam-
ages).
Mich. Annotated Statutes, Howell, 1913, Sec. 13317 and 13318 Vol. 5 (Treble
damages) .
Minn. General Statutes, Tiffany, 1913, Sees. 7900, 8090 (Treble damages) Sec.
8819. (Same on State pine land).
Miss. Code of 1906, Sec. 4976, 4977 and 4978 (Penalties); 4983 (boxing pine).
Mo. Annotated Statutes, 1906, Sec. 4572 (Treble damages); 4575 (exception).
Rev. Stat. 1909, Sees. 5448-5449.
Mont. Revised Code, 1907, Sec. 2096 (planted trees) ; Sees. 6078, 6867, 8610, 8773,
last two refer to State land (treble damages).
Neb. Revised Statutes, 1913, Sec. 8247 (Treble damages); 8248 (exception).
Nev. Revised Laws. Civil, 1912, Sec. 5506-5507. (Treble damages).
N. H. Public Statutes, 1901, Chap. 244, Sec. 1, p. 758. (Treble or quintuple
value or penalty).
N. J. Compiled Statutes, 1709-1910, Vol. 4, p. 5396, Sec. 1 (Penalties).
N. M Annotated Statutes, 1915, Sec. 1518. (Treble damages) .
N. Y. Code of Civil Procedure, Bliss, 6th Ed. 1913, Sec. 1667-68, p. 3154 and
3155. (Treble damages).
N. C. Revised Laws, Pell, 1908 Sec. 3741. (State Lands, double damages).
N. D. Compiled Laws, 1913, Sec. 7176 (Treble damages).
Ohio. Annotated General Code, Page & Adams, 1912, Sec. 12458-12459 (Double
damages).
Oreg. General Laws, Lord, 1910, Sec. 346 and 347 (Treble damages).
Pa. Digest of Laws, Purdon, 13 Ed., 1910, p. 4755 (Sec. 2; double damages for
cutting; treble damages for converting.)
R. I. General Laws, 1909, Chap. 335, p. 1213 (double value for trees, treble
value for wood and underwood.)
S. D. Revised Code, 1903, Sec. 2323 of Civil Code (Treble damages).
Utah Compiled Laws, 1907, Sec. 3508 (Treble dama.es); Sec. 1126 (planted
trees, treble damages).
Vt. Public Statutes, Lord & Darling, Rev. 1906, Sec. 5701 (Treble damages).
Va. Code, Pollard, 1904, cf. Sec. 2775-2780 (treble damages, wanton cutting
by tenant.)
Wash. Code*- & Statutes, Remington & Ballinger, 1910, Sec. 939 anl 940 (Treble
damages).
W. Va.Code, Hogg, 1913, cf. Sec. 4125 (treble damans for wanton cutting by
tenant).
Wis. Statutes, 1915, cf. Sec. 4269 (highest value after cutting).
1. Ala. Postal Tel. Co. v. Lenoir, 107 Ala. 640; Mitchell v. Billingsley, 17 Ala. 391:
Givens v. Kendrick, 15 Ala. 648.
Cal. Daubenspeck v. Grear, 18 Cal. 443.
m. David v. Ccrrell, 74 111. App. 47; Behymer v. Odeli, 31 111. App. 350.
Md. Coal Co. v. McCulloh, 59 Md. 400.
Mich. Clark v. Field, 42 Mich. 342; Osborn v. Lovell, 36 Mich. 246.
Miss. Keirn v. Worfield, 60 Miss. 799; Mhoon v. Greenfield, 52 Miss. 434; Heard
v. James, 49 Miss. 236; Perkins v. Hackleman, 26 Miss. 41. 59 Am. Dec.
243.
Mo. Emers n v. Beavaus, 12 Mo. 511.
N. J. Whiter v. Peterson, 24 N. J. L. 524, 61 Am. Dec. 678.
N. C. Bennett v. Thompson, 13 Ired L. (35 N. C.) 146.
(Footnote 1 continued on next page)
MULTIPLE DAMAGES AND PENALTIES 9&
the statutes are so worded as to clearly indicate that the
multiple damages or penalties are to be awarded only when
the trespass is malicious, fraudulent, inexcusably negligent
or otherwise aggravated; but even where the application
of the statute is not expressly limited to trespasses of this
character, the courts will generally construe it as not in-
cluding unintentional trespasses and will allow only actual,
or compensatory, damages where the trespass was acci-
dental or done under a bona fide claim of ownership and
color of title. l While in compensatory, or single, dam-
ages the intent of the trespasser is immaterial, 2 an intent
to commit the unlawful act is necessary to the maintenance
(Footnote 1 concluded from proceeding page)
Wis. Andrews v. Youmans, 78 Wis. 56; Lee v. Lord, 76 Wis. 582; Cotter T.
Plumer, 72 Wis. 476.
Double damages allowed for timber trespass on state land : State v. Shev-
lin-Carpenter Co., 102 Minn. 470, 113 N. W. 634, 114 N. W. 738.
Recovery of enalties allowed as to state land: People v. Bennett, 56 Misc.
(N. Y.) 160, 107 N. Y. Suppl. 406. (Afl'd in 125 N. Y. App. Div. 912,
109 N. Y. Suppl. 1140.)
1. Ala. Long v. Cummings, 156 Ala. 577, 47 So. 109; Bradford v. Boozer, 139 Ala.
502, 36 So. 716; Glenn v. Adams, 129 Ala. 189, 29 So. 836; White v.
Farris, 124 Ala. 461, 27 So. 259; Williams v. Hendricks, 115 Ala. 277, 22
So. 439, 67 Am. St. Rep. 32, 41 L. R. A. 650; Postal Tel. Cable Co. v.
Lenoir, 107 Ala. 640, 18 So. 266; Russel v. Irby, 13 Ala. 131; But see,
. Louisville, etc. R. Co. v. Hill, 115 Ala. 334, 22 So. 163.
Cal. Barnes v. Jones, 51 Cal. 303.
Ga. Yahoola River, etc. Co. v. Irby, 40 Ga. 479.
111. Cushman v. Oliver, 81 111. 444; Watkins v. Gale 13 111. 152; Whitecraftv.
Vanderveer, 12 111. 235; See also, Satterfleld v. Western Union
Tel. Co., 23 111. App. 446; Belt v. Reid, 84 III. App. 501.
Iowa. Werner v. Flies, 91 Iowa 146, 59 N. W. 18.
Kan. Cf. Wright v. Brown, 5 Kan. 600.
Mich. Skeels v. Starrett, 57 Mich. 350, 24 N. W. 98; Clark v. Field, 42 Mich. 342;
Osborn v. Lovell, 36 Mich. 246; Russell v. Myers, 32 Mich. 522; Wallace
v. Finch, 24 Mich. 255.
Miss. Cumberland Tel. etc. Co. v. Martin, 93 Miss. 505, 46 So. 247; Lusby v.
Kansas City etc. R. Co., 73 Miss. 360, 19 So. 239, 36 L. R. A. 510;
McCleary v. Anthony, 54 Miss. 708.
Mo. Chilton v. Missouri Lumber Etc. Co., 144 Mo. App. 315, 127 S. W. 941;
Missouri Lbr. Etc. Co. v. Zeitinger, 45 Mo. App. 114; Lindell v. Hanni-
bal, etc. R. Co., 25 Mo. 550; Emerson v. Beavaus, 12 Mo. 511.
N. H. Batchelder v. Kelly, 10 N. H. 436, 34 Am. Dec. 174; See, Morrison v. Be-
dell, 22 N. H. 234.
N. Y. Smith v. Morse, 70 N. Y. App. Div. 318, 75 N. Y. Suppl. 126; Nixon v.
Stillwell, 52 Hun. 353, 5 N. Y. Suppl. 248.
Ore. Loewenberg v. Rosenthal, 18 Ore. 178, 22 Pac. 601.
Pa. Shiffer v. Broadhead, 134 Pa. St. 539, 19 Atl. 688; Kramer v. Goodlander,
98 Pa. St. 353.
Vt. Davis v. Cotey, 70 Vt. 120, 39 Atl. 628; Brown v. Mead, 68 Vt. 215, 34
Atl. 950.
Wash. Gardner v. Lovegren, 27 Wash. 356, 67 Pac. 615.
Wis. Cohen v. Neeves, 40 Wis. 393.
2. Quillen v. Betts, 1 Pennew (Del.) 53, 39 Atl. 595; Mi Itown Lbr. Co. v. Carter, 5
Ga. App. 344, 33 S. E. 270; Mishler Lbr. Co. v. Craig. 112 Mo. App. 454, 87
S. W. 41; Chase v. Clearfleld Lbr. Co., 209 Pa. St. 422, 58 Atl. 813; Cf. Guttner
v. Pacific Steam Whaling Co., 96 Fed. 617.
100 STATUTORY CIVIL LIABILITY FOR TIMBER TRESPASS
of action under one of these punitive statutes. The act
must be wilful, l or so negligent and careless as to be in-
excusable. 2 Evil intent is unnecessary, but the act is wilful
even though the trespasser did not know that the land upon
which he trespassed belonged to the plaintiff. 3 Knowl-
edge that the land was not his own is sufficient
evidence of an improper purpose and intention to violate
the provisions of the statute, 4 and even this knowledge is
unnecessary under the Pennsylvania statute. 5 In any
state a belief that is clearly not well founded would consti-
tute no defense, 6 but in some jurisdictions if the belief
as to right to cut is reasonably well-founded and is enter-
tained in good faith it will constitute a defense against the
recovery of multiple damages or a penalty even where the
plaintiff forbade the doing of the act. 7
88. Conditions Necessary for Maintenance of Sta-
tutory Action. These statutes are generally regarded
as not giving a distinct new cause of action but as merely
augmenting the measure of damages allowable under the
1. Ala. Long v. Cummings, 165 Ala. 342, 51 So. 743; Glenn v. Adams, 129 Ala. 189.
29 So. 836; White v. Harris, 124 Ala. 461, 27 So. 259; Postal Tel. Cable
Cc. v. Lenoir, 107 Ala. 640, 18 So. 266; Russell v. Irby, 13 Ala. 131.
Cal. Stewart v. Sefton, 108 Cal. 197, 41 Pac. 293.
III. Watklns v. Gale, 13 111. 52; Whitecraft v. Vande.ver, 12 111. 235; Belt v.
Reid, 84 111. App. 501 ; David v Correll, 74 111. App. 47.
Iowa. Koonz v. Hempy, 142 Iowa 337, 120 N. W. 976.
Me. Contra, Black v. Mace, 66 Me. 49.
Mich. Michigan etc. Co. v. Deer Lake Co., ,60 Mich. 143, 27 N. W. 10, 1 Am. St.
Reo. 491.
Miss. Cumberland Tel. etc. Co. v. Martin, 93 Miss. 505, 46 So. 247; Therrell v.
Ellis, 83 Miss. 494, 35 So. 826; McCleary v. Anthony, 54 Miss. 708;
Mhoon v. Greenfield, 52 Miss. 434; Perkins v. Hackleman, 26 Miss. 41,
59 Am. Dec. 243.
Mont. McDonald v. Montana Wood Co., 14 Mont. 88, 35 Pac. 668, 43 Am. St.
Rep. 616.
N. H. Batchelder v. Kelly, 10 N. H. 436, 34 Am. Dec. 174.
2. Harrison Naval Stores Ci. v. Johnson, 91 Miss. 747, 45 So. 465; Therrell v. Ellis,
83 Miss. 494, 35 So. 826; Keirn v. Warfleld, 60 Miss. 799; McCleary v. Anthony,
54 Miss. 708; Mhoon v. Greenfield, 52 Miss. 434.
3. Givens v. Kendrick, 15 Ala. 648; Longyear v. Gregory, 110 Mich. 277, 68 N. W.
116; Emerson v. Beavaus, 12 Mo. 511; Perkins v. Hackleman, 26 Miss, 41, 59
Am. Dec. 243. Louisville & Nashville R. R. Co. v. Hill, 115 Ala. 334, 22 So.
163.
4. Walkins v. Gale, 13 111. 152.
5. McCloskey v. Powell, 123 Pa. St. 62, 16 Atl. 420, 10 Am. St. Rep. 512; Watson v.
Rynd, 76 Pa. St. 59; O'Reilly v. Shadle, 33 Pa. St. 489.
6. Macey v. Carter, 76 Mo. App. 490; Rousey v. Wood, 57 Mo. App. 650.
7. Long v. Cummings, 165 Ala. 342, 51 So. 743; Belt v. Reid, 84 111. App. 501; Cos
v. St. Louis etc. R. Co., Ill Mo. App. 394, 85 S. W. 989.
CONDITIONS NECESSARY FOR REMEDY 101
common law action of trespass, x and it is accordingly held
that the statutory action can be brought only where the
circumstances would sustain the common-law action. 2
Possession under color of title with claim of ownership has
been held sufficient to support the statutory action, 3 but
the general rule is that the action is available only to the
owner of the fee whether the act provide for treble dam-
ages 4 or for a penalty 5 for the unauthorized cutting of
timber. Thus the ownership of trees standing upon the
land of another has been held insufficient to support the
statutory action for a penalty, 6 unless the statute spe-
cifically provides that action shall be available to the owner
of timber apart from the land. 7 Actual possession under
claim of right and color of title raises a presumption of owner-
ship. 8
Recovery of multiple damages or the penalty provided
may be given where the palintiff has title only without
1. Eklund v. Lewis Lbr. Co., 13 Ida. 581. 92 Pac. 532; Sprague v. Irwin, 27 How. Pr.
(N. Y.) 51; Hathaway v. Goslant, 77 Vt. 199, 59 Atl. 835; Davenport v. Newton,
71 Vt. 11, 42 Atl. 1087; Wiliey v. Laraway, 64 Vt. 559, 25 Atl. 436; Montgomery
v. E ilwards. 45 Vt. 75.
2. Yocum v. Zahner 162 Pa. St. 468, 29 Atl. 778; Guild v. Prentiss, 83 Vt. 212, 74
Atl. 1115; But See, Arnold v. Pfouts, 117 Pa. St. 103, 11 Atl. 871; Walton v.
Pollock, 2 Pa. Dist. 607, 12 Pa. Co. Ct. 216.
3. Carpenter v. Savage, 93 Miss, 233, 46 So. 537; See Johnson v. Davis, 91 Miss. 708,
45 So. 979.
4. Newman v. Mountain Park Land Co., 85 Ark. 208, 107 S. W. 391, 122 Am. St. Rep.
27; Taylor v. State, 65 Ark. 595; 47 S. W. 1055; Arn v. Matthews, 39 Kan. 272,
18 Pac. 65, Achey v. Hull, 7 Mich. 423; Reynolds v. Maynard (Mich. 1904),
100 N. W. 174; Kellar v. Central Tel. etc. Co., 53 Misc. 523, 105 N. Y. Suppl.
63; Van Deusen v. Young, 29 N. Y. 9; Lewis v. Thompson, 3 N. Y. App. Div.
329, 38 N. Y. Suppl. 316.
5. Ala. Smythe Lbr. Co. v. Austin, 162 Ala. 110, 49 So. 875; Shelby Iron Co. v.
Ridley, 135 Ala. 513, 33 So. 331; White v. Farris, 124 Ala. 461, 27 So.
259; Higdon v. Kennemer, 120 Ala. 193, 24 So. 439, 112 Ala. 351, 20 So.
470; Gravlee v. Williams, 112 Ala. 539, 20 So. 952; Turner Coal Co. v.
Glover, 101 Ala. 289, 13 So. 478; Allison v. Little, 93 Ala. 150, 9 So. 388.
111. Edwards v. Hill, 11 111. 22 ; Clay v. Boyer, 10 111. 506; Jarrott v. Vaughn, 7
111. 132; Whiteside v. Divers, 5 111. 336; Wright v. Bennett, 4 111. 258;
David v. Correll, 68 111. App. 123; Behymer v. O'Dell, 45 111. App. 616,
31 111. App. 350; Abney v. Austin, 6 111. App. 49.
Miss. McCleary v. Anthony, 54 Miss. 708; Dejarnett v. Haynes, 23 Miss. 600.
Vt. Davenport v. Newton, 71 Vt. 11, 42 Atl. 1087.
6. Clifton Iron Co. v. Curry, 108 Ala. 581, 18 So. 554.
7. Brasher v. Shelby Iron Co., 144 Ala. 659, 40 So. 80; Harrison Naval Stores Co. v.
Johnson, 91 Miss. 747, 45 So. 465.
8. Higdon v. Kennemer, 120 Ala. 193, 24 So. 439; Higdon v. Kennemer, 112 Ala. 351,
20 So. 470; Behymer v. O'dell, 45 111. App. 616; Abney v. Austin, 6 111. App. 49;
Mason v. Park, 4 111. 532; Darrill v. Dodds, 78 Miss. 912, 30 So. 4; McCleary v.
Anthony, 54 Miss. 708; Ware v. Collins, 35 Miss. 223, 72 Am. Dec. 122; Humes
v. Proctor, 151 N. Y. 520, 45 N. E. 948.
102 STATUTORY CIVIL LIABILITY FOR TIMBER TRESPASS
actual possession. * It has been held that under these
statutes recovery could be had even where the plaintiff had
neither actual nor constructive possession; 2 but the
better holding is that the common law rule is not changed
by these statutes. 3
Under most of these statutes the multiple damages or
penalty prescribed may be imposed even where the trees
cut have not been taken away, 4 and they embrace im-
mature trees. 5
One who orders or induces another to violate one of
these statutes is liable for the damages or penalties pre-
scribed, 6 and the employer is liable for the acts of his
employee which are within the scope of his employment, 7
but not for acts committed without authority. 8 Like-
wise a partner is not liable for trespass by a copartner which
is done without the knowledge and consent of the former. 9
If one who purchases for value timber cut in violation of
such a statute had no part in the commission of the tres-
pass, he will not be held liable for the multiple damages or
penalties of the statute where he takes without notice 10
of the unlawful cutting, but there is conflict of authority as
1. Long v. Cummings, 156 Ala. 577, 47 So. 109; White v. Farris, 124 Ala. 461, 27 So.
259; Gra\lee v. Williams, 112 Ala. 539, 20 So. 952; Turner Coal Co. v. Glover,
101 Ala. 289, 13 So. 478; Allison v. Little, 93 Ala. 150, 9 So. 388; Am v. Mat-
thews, 39 Kans. 272, 18 Pac. 65; Sullivan v. Davis, 29 Kan. 28; Fitzpatrick v.
Gebhart, 7 Kan. 35; Cramer v. Grosaclose, 53 Mo. App. 648.
2. Coppage v. Griffith, 40 S. W. 908, 19 Ky. L. Rep. 459; Achey v. Hull, 7 Mich. 423.
3. Beatty v. Brown, 76 Ala. 267; Cf. Rogers v. Brooks, 99 Ala. 31, 11 So. 753; Newman
v. Mountain Park Land Co., 85 Ark. 208, 107 S. W. 391, 122 Am. St. Rep. 27;
Brown v. Hartzell, 87 Mo. 564; Holladay-Klotz Land etc. Co. v. Moss Tie Co.,
79 Mo. App. 543; Avitt v. Farrell, 68 Mo. App. 665; Cf. Austin; v. Huntsville
Coal etc. Co., 72 Mo. 535, 37 Am. Rep. 446; Halley v. Taylor, 77 Miss. 867, 28
So. 752; Gainings v. Miller, 76 Miss. 651, 24 So. 964; Ware v. Collins, 35 Miss.
223; Hubbel v. Rochester, 8 Cowen (N. Y.) 115 (1828, under statute Apr. 9, 1805
S. L. Ch. 94).
4. Givens v. Kendrick, 15 Ala. 648; Keystone Lbr. etc. Co. v. McGrath (Miss. 1897),
21 So. 301; Cf. Batchelder v. Kelly, 10 N. H. 436, 34 Am. Dec. 174, (cut by mis-
take).
5. Clay v. Postal Tel. Cable Co., 70 Miss. 406, 11 So. 658.
6. McCloskey v. Powell. 138 Pa. St. 383, 21 Atl. 148. (Afl'm in 123 Pa. St. 62, 16 Atl.
420, 10 Am. St. Rep. 512).
7. Van Siclen v. Jamaica Electric Light Co., 45 N. Y. App. Div. 1, 61 N. Y. Suppl.
210, (Aft'm'd in 168 N. Y. 650, 61 N. E. 1135). Postal Tel. Co. v. Brantley 107
Ala. 683, 18 So. 321; See 115 Ala. 286, 22 So. 439.
8. Therrell v. Ellis, 83 Miss. 494, 35 So. 826; McCleary v. Anthony, 54 Miss. 708;
Batchelder v. Kelly, 10 N. H. 436, 34 Am. Dec. 174; But see. Gates v. Corn-
stock, 113 Mich. 127, 71 N. W. 515; Crisler v. Ott. 72 Miss. 166, 16 So. 416.
9. Williams v. Hendricks, 115 Ala. 277, 22 So. 439, 67 Am. St. Rep. 32, 41 L. R. A.
650.
10. O'Reilly v. Shadle, 33 Pa. St. 489.
DEFENSES TO TRESPASS ACTION 103
to whether such purchaser will be liable if he takes with
notice of the unlawful cutting. 1
89. Defenses to Statutory Damages. If the cutting
is done with the consent of the owner, 2 is within one of
the exceptions of the statute, 3 or is done with authority
of law, 4 the trespasser will not be liable to the multiple
damages or penalties. Possession without title under a
contract of purchase, 5 proof that the cutting benefited
the land, 6 or evidence that the cutting was necessary to
protect defendant's adjoining land 7 do not constitute de-
fenses to an action under one of these statutes, and payment
for damage to one tenant in common does not discharge
the liability to another. 8
While the burden of proof is on the plaintiff to show
that a trespass has actually been committed on land to
which he has title, 9 and that it was wilful 10 and done
without consent or license; n when these facts are estab-
lished the burden of justification of the act falls upon the
defendant. 12 Thus the denfedant may be required to
show that the trespass was committed by mistake, 13 that
he used reasonable care, 14 that he had probable cause for
1. Not Liable Alabama State Land Co. v. Reed, 99 Ala. 19, 10 So. 238.
Liable Cans v. Nimmons, 92 Mo. App. 66; Holladay-Klotz Land etc. Co. v. MOM
Tie Co., 79 Mo. App. 543.
2. Jernigan v. Clark, 134 Ala. 313, 32 So. 686; Werner v. Flies, 91 Iowa 146, 59 N. W.
18.
3. Clark v. Field, 42 Mich. 342, 4 N. W. 19; Russell v. Myers, 32 Mich. 520; Wallace
v. Finch, 24 Mich. 255; Courtney v. Smylie, Walk. Miss. 497; Pitt V Daniel, 82
Mo. App. 168; Cramer v. Groseclose, 53 Mo. App. 648.
4. Farrow v. Nashville, etc. R. Co., 109 Ala. 448, 20 So. 303; Cox v. St. Louis etc. R.
Co., Ill Mo. App. 394, 85 S. W. 989; Van Siclen v. Jamaica Electric Light Co.,
45 N. Y. App. Div. 1, 61 N. Y. Suppl. 210 (Afl'd in 168 N. Y. 650, 61 N. E.
1135).
5. Van Deusen v. Young, 29 Barb. (N. Y.) 9; But see, Taylor v. Lyon Lbr. Co., 13 Pa.
Co. Ct. 235.
6. Van Deusen v. Young, 29 Barb. (N. Y.) 9 (Reversed on other groungs in 29 N. Y.
9).
7. Walker v. Davis, 83 Mo. App. 374.
8. Wagoner v. Silva, 139 Cal. 559, 73 Pac. 433.
9. Brasher v. Shelby Iron Co., 144 Ala. 629, 40 So. 80.
10. Shelby Iron Co. v. Ridley, 135 Ala. 513, 33 So. 331; Wilson v. Gunning, 80 Iowa
331, 45 N. W. 920.
11. Davis v. Arnold 143 Ala. 228, 39 So. 141 ; Farrow v. Nashville etc. R. Co., 109 Ala.
448, 20 So. 303; Rogers v. Brooks, 105 Ala. 549. 17 So. 97; Padman v. Rhodes,
126 Mich. 434, 85 N. W. 1130.
12. Ladd v. Shattock, 90 Ala. 134, 7 So. 764; Chilton v. Missouri Lbr. etc. Co., 144
Mo. App. 315, 127 S. W. 941; Farrow v. Nashville etc. R. Co., 109 Ala. 448,20
So. 303.
13. Davis v. Cotey, 70 Vt. 120, 39 Atl. 628.
14. Keirn v. Warfleld, 60 Miss. 799.
104 STATUTORY CIVIL LIABILITY FOR TIMBER TRESPASS
believing that the cutting was under one of the exceptions
of the statute, l that the cutting was accidental or casual, 2
that he acted under a bona fide claim of right, 3 or that it
was done with the consent of the plaintiff. 4
90. Determination of Amount Allowable as Mul-
tiple Damages. Under different statutes the basis of the
multiple damages has been held to be either the difference
in the value of the land before and after the cutting of the
trees, 5 or the market value of the trees cut 6 according
to the language of the statute and the circumstances of
the trespass. Accessory or consequential damages not
embraced by the statute will not be considered in the unit
basis of multiple damages. 7 To establish the value of
trees severed the plaintiff may show either value of the
trees on the land, 8 or at the nearest market. 9 Ordi-
narily the additional value given the severed article by
the labor and expense of the trespasser cannot be treb-
led. 10 If the plaintiff proves the wrongful cutting but does
not establish a case within the terms of thfe statute provid-
ing for multiple damages or a penalty, he will be entitled
to single damages. "
1. Clark v. Field, 42 Mich. 342, 4 N. W. 19; Henry v. Lowe, 73 Mo. 96; Walther v-
Warner, 26 Mo. 143: Avitt v. Farrell. 68 Mo. App. 665; Humes v. Proctor, 151
N. Y. 520, 45 N. E. 948.
2. Hart v. Doyle, 128 Mi h. 257, 87 N. W. 219: Michigan Land etc. Co. v. Deer Lake
Co., 60 Mich. 143, 27 N. W. 10, 1 Am. St. Rep. 491 ; Van Siclen v. Jamaica Elec-
tric Light Co., 45 N. Y. App. Div. 1, 61 N. Y. Suppl. 210 (Aff'd in 168 N. Y. 650.
61 N. E. 1135).
3. Pitt v. Daniel, 82 Mo. App. 168; Brown v. Carter, 52 Mo. 46; Davis v. Cotey, 70
Vt. 120, 39 Atl. 628; Ct. Louisville etc. R. Co. v. Hill, 115 Ala. 334, 22 So. 163;
Rogers v. Brooks, 105 Ala. 549, 17 So. 97.
4. Werner v. Flies, 91 Iowa 146, 59 N. W. 18; Rogers v. Brooks, 105 Ala. 549, 17 So.
97.
5. Skeels v. Starrett, 57 Mich. 350, 24 N. W. 98; Achey v. Hull, 7 Mich. 423; Mc-
Crudden v. Rochester R. Co., 5 Misc. (N. Y.) 59, 25 N. Y. Suppl. 114 [Aff'd in
77 Hun. 609, 28 N. Y. Suppl. 1135 (Aff'd in 151 N. Y. 623, 45 N. E. 1123);]
King v. Havens, 25 Wend (N. Y.) 420.
6. Arn v. Matthews, 39 Kan. 272, 18 Pac. 65; Michigan Land etc. Co. v. Deer Lake
Co., 60 Mich. 143, 27 N. W. 10. 1 Am. St. Rep. 491; Herron v. Hornback, 24
Mo. 492; Labeaunie v. "Woolfolk, 18 Mo. 514.
7. Atchison etc. R. Co. v. Grant, 75 Kan. 344, 89 Pac. 658, (Gravel) ; Thayer v. Sher-
lock, 4 Mich. 173; Van Deusen v. Young, 29 Barb. (N. Y.) 9.
8. Wagoner v. Silva, 139 Gal. 559, 73 Pac. 433.
9. Davis v. Cotey, 70 Vt. 120, 39 Atl. 628; Skeels v. Starrett, 57 Mich. 350, 24 N. W.
98; But See, Hathaway.v. Goslant, 77 Vt. 199, 59 Atl. 835.
10. Oregon etc. R. Co. v. Jackson, 21 Ore. 360, 28 Pac. 74.
11. Clark v. Field, 42 Mich. 342, 4 N. W. 19; HoUiday v. Jackson, 21 Mo. App. 660;
Dubois v. Beaver, 25 N. Y. 123, 82 Am. Rep. 326; Starkweather v. Quigley, 7
Hun. (N. Y.) 26; Van Hoffman v. Kendall. 17 N. Y. Suppl. 713; Gardner v
Lovegren, 27 Wash. 356, 67 Pac. 615; Conn v. Neeves, 40 Wis. 393.
DETERMINING DAMAGES AND INTEREST 105
In most jurisdictions the jury find single damages 1
and if they fail to declare in the verdict that they consider
the plaintiff entitled to compensatory damages only,
the court must award the multiple damages provided in
the statute. 2 In Kansas it is the province of the jury to
assess the multiple damages, 3 while in Missouri the jury
find the fact of trespass only and the court determines
whether the evidence establishes a case within the terms
of the statute. 4
91. Interest on Damages. Whenever damages are
recovered for trespass or conversion in connection with
the unlawful cutting of growing timber, interest may be
allowed from the date of the trespass or the time when the
conversion was complete until the date when judment
is entered. 5 In some jurisdictions interest will not be
allowed or treble damages. 6 but there are holdings to the
contrary 7 and the allowance of treble interest on single
damages has been refused- 8
1. Black v. Mace, 66 Me. 49; George v. Rook, 7 Mo. 149; Withington v. Hilderbrand,
1 Mo. 280; Nixon v. Stillwell, 52 Hun. (N. Y.) 353, 5 N. Y. Suppl. 248; Stark-
weather v. Quigley, 7 Hun. (N, Y.) 26; Marchand v. Haber, 16 Misc. (N. Y.)
322, 37 N. Y. Suppl. 952; Loewenbery v. Rosenthal, 18 Ore. 178, 22 Pac. 601;
Cf. Snelling v. Garfteld, 114 Mass. 443; Robbins v. Farwell, 193 Pa. 37, 44 Atl.
260; Clark v. Sargeant, 112 Pa. St. 16, 5 Atl. 44; Hughes v. Stevens, 36 Pa.
St. 320; Welsh v.Anthony, 16 Pa. St. 254; Henning v. Keiper, 37 Pa. Sup. Ct.
488. See King ^.Havens, 25 Wend. 419 (1841), shade tree; Newcomb, Super'r
v. Butterfleld, 8 Johnson 342 (1811).
2. Yeamans v. Nichols, 81 N. Y. Suppl. 500; Humes v. Proctor, 73 Hun. (N. Y.)
265, 26 N. Y. Suppl. 315 (Aff'd in 151 N. Y. 520, 45 N. E. 948); King v. Havens,
25 Wend. (N. Y.) 420; But See, Tait v. Thomas, 22 Minn. 537; Livingston v.
Platner, 1 Cow. (N. Y.) 175; Kulp v. Bird, 5 Pa. Cas. 541, 8 Atl. 618.
3. Chicago etc. R. Co. v. Watkins, 43 Kan. 50, 22 Pac. 985; Cf. Byrne v. Haines.
Minor (Ala.) 286; Agnew v. Albert Lewis Lbr. Co., 218 Pa. St. 505, 67 Atl. 779.
4. Wood v. St. Louis etc. R. Co., 58 Mo. 109; Walther v. Warner, 26 Mo. 143;
Chilton v. Missouri Lbr. etc. Co., 144 Mo. App. 315, 127 S. W. 941; Pitt v.
Daniel, 82 Mo. App. 168; Roucey v. Wood, 57 Mo. App. 650.
5. Ala. Lowery v. Rowland, 104 Ala. 420, 16 So. 88.
Ark. Central Coal and Coke Co. v. John Henry Stove Co., 69 Ark. 302, 63 S. W.
49.
Me. Longfellow v. Qutmby, 33 Me. 457; Cf. Longfellow v. Quimby, 29 Me. 196,
48 Am. Dec. 525.
Mich. Winchester v. Craig, 33 Mich. 205.
Minn. State v. Shevlin-Carpenter Co., 62 Minn. 99.
Pa. Dunbar Furnace Co. v. Fairchild et al. t 121 Pa. St. 563.
Wis. Weymouth v. Chi. & N. W. R. Co., 17 Wis. 550.
U. S. Pine River Logging Co. v. U. S., 186 U. S. 279, 22 S. Ct. 920, 40 L. Ed. 1164.
6. McCloskey v. Powell, 138 Pa. St. 383, 21 Atl. 148; McCloskey v. Powell, 8 Pa. Co.
Ct. 22.
7. Gates v. Comstock, 113 Mich. 127, 71 N. W. 515.
8. Dunbar Furnace Co. v. Fairchild, 121 Pa. St. 563, 15 Atl. 656.
106 STATUTORY CIVIL LIABILITY FOR TIMBER TRESPASS
92. Timber cut from Federal and State Lands.
The title to timber that is cut in violation of statute from
public lands of the United States remains in the United
States, l and the title to timber unlawfully cut from the
public lands of a state remains in the state 2 after severance.
One who purchases such timber which has been cut wilfully,
either with or without* notice of the wrongful cutting, ac-
quires no better title than his vendor. 3 Timber cut wil-
fully can be pursued so long as it can be identified, and
recovered in replevin wherever taken, whether in the hands
of the original trespasser or of a purchaser from him. 4
Although there have been decisions to the effect that the
United States was dependent upon the action of replevin
for the specific recovery of timber unlawfully cut from
public lands, 5 the weight of judicial authority seems to
sustain the right of the United States to seize timber un-
lawfully cut wherever it can be found, if capable of identi-
fication. 6 For many years this has been the practice
of the timber agents employed in the General Land Office
under specific direction of the Department of the Interior, 7
1. Northern Pac. R. Co. v. Lewis, 162 U. S. 366, 16 S. Ct. 831, 40 L. Ed. 1002
(Revs'g 51 Fed. 658, 2 C. C. A. 446); Northern Pac. R. v. Paine, 119 U. S. 561.
30 L. Ed. 513; Woodenware Co. v. U. S. 106 U. S. 432, 27 L. Ed. 230; U. S. v.
Cook, 19 Wall (U. S.) 591, 22 L. Ed. 210; U. S. v. Bitter Root Dev. Co., 133
Fed. 274 (Afl'd in 200 U. S. 451); English v. U.S. 116 Fed. 625, 54 C. C. A. 81
(Aflm'g 107 Fed. 867) ; U. S. v. Price, 109 Fed. 239, 48 C. C. A. 331 ; U. S. v.
Pine Rive- Logging Co. 78 Fed, 319, 24 C. C. A. 101; U. S. v. Steenerson, 50
Fed. 504, 1 C. C. A. 552: U. S. v. Perkins, 44 Fed. 670; Norris v. U. S. 44 Fed.
735; Ely v. U. S. 3 Fed. Cas. No. 1,581, 4 Dill 464; Spencer v. U. S.. 10 Ct. Cl.
255.;
But see U. S. v. Loughrey, 1 2 U. S. 206, 19 S. Ct. 153, 43 L. Ed. 420 (Affm'g 71
Fed. 921, 18 C. C. A. 391); Teller v. U. S., 117 Fed. 577, 54 C. C. A. 349; U. S. v.
Teller, 106 Fed. 447, 45 C. C. A. 416; U. S. v. Scott, 38 Fed. 393.
2. Hutchins v. King, 68 U. S. 53; 17 L. Ed. 544; Schulenberg v. Harriman, 21 Wall
(U. S.) 44, 22 L. Ed. 551 (Affm'g 21 Fed. Cas. No. 12,486, 2 Dill. 398; Ruber v.
Hyde, 138 Mich. 101, 101 N. W. 61 ; Russell v. Myers 32 Mich. 522.
See also State v. Rat. Portage Lbr. Co. (Minn. 1908) 115 N. W. 162; Rogers v.
Bates, 1 Mich. N. P. 93; State v. School etc. Land Com'r's, 19 Wis. 237.
3. Anderson v. U. S., 152 Fed. 87, 81 C. C. A. 311; Pine River Logging Co. v. U. S.,
186 U. S. 279; Cf. 89 Fed 919; Woodenware Co. v. U. S. 106 Fed. 432; U. S. v.
Norris, 41 Fed. 424. But e Stone v. U. S., 167 U. S. 178, 17 S. Ct. 778, 42
L. Ed. 127 (Affm'g 64 Fed. 667, 12 C. C. A. 451; U. S. v. Williams, 18 Fed. 478;
The Timber Cases. 11 Fed. 81.
4. Pine River Logging Co. v. U. S., 186 U. S., 279; Schulenberg v. Harriman, 21 Wall
(U. S.) 44, 22 L. Ed. 551; B llou v. O'Brien, 20 Mich. 304; State v. Torinus, 24
Minn. 332.
5. Handlord v. U. S., 92 Fed. 881, 35 C. C. A. 75; See Ely v. U. S.. 3 Fed. Cas. No. 1,-
581, 4 Dill. 464.
6. Wells v. Nickles, 104 U. S. 447; U. S. v. Cook 19 Wall. 591; Ncrris v. U. S. 44 Fed.
735;Ballouv. O'Brien, 20 Mich. 304; Stephenson v. Little 10 Mich. 433; See
Cotton v. U. S., 11 How. 229.
7. Letter of Sec'y Interior to Sec'y Treasury, Nov. 15, 1886 (5 L. D. 240) ; See ex-
plicit legislative sanction in Act April 30, 1878, (20 Stat. L. 46), Sec. 2.
TIMBER TRESPASS UPON PUBLIC LANDS 107
the expressed approval of the Department of Justice, l the
apparent sanction of the Federal courts and the full knowl-
edge of the Federal legislature. There would seem to be
little question that the right of seizure will be fully sus-
tained if brought directly before the Supreme Court.
One who takes timber from public lands will be held a wil-
ful trespasser unless he can show a right or license. 2
The United States or a state may maintain either an action
of trespass 3 for the damage done in the cutting or removal
of timber, or one in trover 4 for the value of the timber cut
and removed, irrespective of whether the operations of the
trespasser have been profitable or not ; 5 but the govern-
ment must depend upon a recovery of such value and can-
not enforce an accounting in equity for the gains and profit
realized by the trespasser. 6 An action will lie against a
partner individually fot* a trespass by the firm to which
he belonged. 7 The recovery of multiple damages 8
and penalties 9 has been allowed under statutes providing
for the protection of timber belonging to states.
1. Opin. Atty. Gen'l. Aug. 23, 1886, Vol. 18 Op. Atty. Gen. p. 434.
2. Nor hern Pac. R. Co. v. Lewis, 162 U. S., 366, 16 S. Ct. 831, 40 L. Ed. 1002
(Revers'g 51 Fed. 658, 2 C. C. A. 446) ; U. S. \. Cook, 19 Wall. (U. S.) 591; An-
derson v. U. S. 152 F,d. 87, 81 C. C. A. 311; Grubbs v. U. S. 105 Fed. 314, 44
C. C A. 513- U. S. v. Baxter, 46 Fed. 350; U. S. v. Taylor, 35 Fed. 484. But
set In re Whitmore, Myr. Prob. (Calif.) 103.
3. Cotton v. U. S., 11 Howard 229; U. S. v. Bitter Root Dev. Co. 133 Fed. 274, 66
C. C. A. 652 Aff'd in 200 U. S. 451, 26 S. Ct. 318, 50 L. Ed. 550); U. S. v.
Taylor, 35 Fed. 844; U. S. v. Smith 11 Fed. 487, 8 Sawy. 100; State v. Mullen,
97 Me. 331, 54 Atl. 841; State v. Cutler, 16 Me. 348; Newcomb v. Butterfleld,
8 Johns. (N. Y.) 342; Graham v. Moore, 4 Serg, & R. (Pa.) 467; Nichelson v.
Cameron Lbr. Co., 39 Wash. 569, 81 Pac. 1059.
4. U. S. v. Montana Lbr. Co., 196 V S. 573, 25 S. Ct. 367, 49 L. Ed. 604; Oamfleld
v. U. S., 167 U. S. 518, 17 S. Ct. 864, 42 L. Ed. 260; Woodenware Co. v. U. S. 106
U. S. 432, 1 S. Ct. 864. 27 L. Ed. 230; U. S. v. Cook, 19 Wall. (U. S.) 591; U. S.
v. Birdseye, 137 Fed. 516, 70 C. C. A. 100; Powers v. U. S. 119 Fed. 562, 56
C. C. A. 128; English v. U. S. 116 Fed. 625. 54 C. C. A. 811 (Affm'g 107 Fed. 867) ;
Gentry v. U. S., 101 Fed. 51, 41 C. C. A. 185; U. S. v. Eureka etc.
R. Co., 40 Fed. 419; U. S. v. Scott, 39 Fed. 900; U. S. v. Taylor, 35 Fed. 484;
Bly v. U. S. 3 Fed. Cas. 1,581, 4 Dill. 464; U. S. v. Nelson, 27 Fed. Cas. No.
15,864, 5 Sawy. 68; U. S. v. Williams, 8 Mont. 85, 19 Pac. 288.
But see U. S. v. Losekamp, 127 Fed. 959, 62 C. C. A. 591; U. S. v. Mullen Fuel Co.,
118 Fed. 663: U. S. v. Loughrey, 71 Fed. 921, 18 C. C. A. 391 (Aff'd in 172 U. S.
206, 19 S. Ct. 153, 43 L. Ed. 420. .
5. U. S. v. Humphries, 149 U. S. 277, 13 S. Ct. 850, 37 L. Ed. 734.
6. U. S. v. Bitter Root Dev. Co., 133 Fed. 274, 66 C. C. A. 652 (Aff'd in 200 U. S. 451,
26 S. Ct. 318, 50 L. Ed. 550; U. S. v. Van Winkle, 113 Fed. 903, 51 C. C. A. 533;
U. S. v. Northern Pac. R. Co., 6 Mont. 351, 12 Pac. 769.
7. U. S. v. Gumm, 9 N. M. 611, 58 Pac. 398.
8. State v. Shevlin-Carpenter Co., 102 Minn. 470, 113 N. W. 634, 114 N. W. 738.
9. People v. Bennett, 56 Misc. (N. Y.) 160, 107 N. Y. Suppl. 406 (Aff'd in 125 N. Y.
App. Div. 912, 109 N. Y. Suppl. 1140); People v. McFadden, 13 Wend. (N. Y.)
396. See also People v. Holmes, 166 N. Y. 540, 60 N. E. 249 (Affm. 53 N. Y.
App. Div. 626, 65 N. Y. Suppl. 1142); and People v. Turner, 49 Hun (N.Y.) 466.
2 N. Y. Suppl. 253 (Aff'd in 117 N. Y. 227. 22 N. E. 1022. 15 Am. St. Rep. 498.)
108 STATUTORY CIVIL LIABILITY FOR TIMBER TRESPASS
Although the United States government has granted the
free use of timber on public lands to citizens and residents
for certain specific purposes under executive regulations,
and has allowed very wide lati tude in the appropriation of
such timber for personal use, there is no law or custom which
can be construed as implying a general license to anyone to
cut timber from public lands for purposes of sale. l and
if a defendant relies upon a statutory license in justification
of the cutting, he must set out in his pleadings all the facts
necessary to establish such license. 2 When the United
States has shown the cutting and carrying away of timber
from public lands and the possession of such severed timber
by the defendant, 3 the burden of proof is shifted upon the
defendant to justify such cutting and asportation, 4 or
to show that the trespass was not wilful. 5
The government is entitled to nominal damages for a
trespass even where no substantial damages are shown, and
is entitled to every reasonable inference which may be drawn
by the jury from the testimony of its witnesses as to the
amount of timber cut, 6 and to exemplary damages if the
circumstances of the trespass show reckless indifference
to the rights of the government or a deliberate purpose to
commit the unlawful act. 7 However, the defendant is
1. U. S. v. Mock, 149 U. S. 273, 13 S. Ct. 848, 37 L. Ed. 732; U. S. v. Humphries, 149
U. S. 277, 13 S. Ct. 850, 37 L. Ed. 734. Teller v. U. S. t 117 Fed. 577, 54 C. C. X.
349.
2. U. S. v. Mullan Fuel Co., 118 Fed. 663: U. S. v. Ordway, 30 Fed. 30. See U. S. v.
Williams, 6 Mont. 379, 12 Pac. 851.
3. U S. v. Denver etc. R. Co., 191 U. S. 84, 24 S. Ct. 33, 48 L. Ed. 106 (Rev'sg 9
N. M. 382, 55 Pac. 241, 11 N. M. 145, 66 Pac. 550) ; Norris v. U. S. 44 Fed. 739;
U. S. v. Denver etc. R. Co., 31 Fed. 886; U. S. v. Williams, 8 Mont. 85, 19 Pac.
288. Cf. U. S. v. Saucier, 5 N. M., 569, 25 Pac. 791.
4. U. S. Basic Co., 121 Fed. 504, 57 C. C. A. 624; U. S. v. Eccles, 111 Fed. 490;
Stubbs v. U. S., Ill Fed. 366, 104 Fed. 988, 44 C. C. A. 292; U. 8. v. Price Trad-
ing Co., 109 Fed. 239, 48 C. C. A. 331; Stone v. U. S., 64 Fed. 667, 12 C. C. A.,
451 (Afl'd in 167 U. S. 178, 17 S. Ct. 778, 42 L. Ed. 127); U.S. v. Denver etc. R.
Co., 31 Fed. 886; U. S. v. Gumm, 9 N. M. 611, 58 Pac. 398.
5. U. S. v. Baxter, 46 Fed. 350.
An acquittal under an indictment for unlawfully and feloniously removing timber
from public lands is not a bar to a civil action for the value of the timber re-
moved. Stone v. U. S., 64 Fed. 667 12 C. C. A. 451 (Aff'd 167 U. S. 178, 17 S.
Ct. 778, 42 L. Ed. 127). See Cotton v. U. S., 11 How. 229. Morgan v. U. S.,
148 Fed. 189, 78 C. C. A. 323; U. S. v. Scott, 39 Fed. 900; Cox v. Cameron Lbr.
Co., 39 Wash. 562, 82 Pac. 116. See U. S. v. Murray, 27 Fed. Cas. No. 15843,
5 McLean 207. Ely v. U. S., 4 Dill. 464.
6. U. S. v. Mock, 149 U. S. 273. 13 S. Ct. 848, 37 L. Ed. 732; Santry v. U. S., 117 Fed.
132. 55 C. C. A. 148. See Woodenware Co. v. U. S., 106 Fed. 432; U. S. v.
Perkins. 44 Fed. 670; U. 8. v. Heilner, 26 Fed. 80; U. S. v. Kelly. 3 Wash. Ter.
421, 17 Pac. 878. U. S. v. Flint Lumber Co. (Ark. 1908) 112 S. W. 217.
7. U. S. v. Mullan Fuel Co., 118 Fed. 663; U. S. v. Taylor, 35 Fed. 484.
CIVIL DAMAGES FOR BURNING OF TIMBER 109
entitled to have the question of his good faith submitted
to the jury, x and in support of hi splea of good faith and
to avoid exemplary damages he may show that he acted
under the advice of legal counsel. -
93 Civil Damages for the Burning of the Woods.
Although many of the statutes imposing penalties for the
firing of the woods intentionally or negligently specifically
declare that the offender shall also be liable in a civil action
for all damages suffered, r> or even for multiple or exem-
plary damages, 4 it is undoubtedly the general rule of law
that such an offender will be liable in a civil action for single
damages where no such provision is contained in the stat-
ute, 5 unless he be able to establish that the firing was
done lawfully and without intentional or negligent fault
on his part. 6 Moreover, many of these statutes make the
1. Gentry v. I'. S. 101 Fed. 51; 41 C. C. A. 185; See U. S. v. Teller. 106 Fed. 447. 45
C. C. A. 410.
2. U. S. v. Mullen Fuel Co., 118 Fed. 603. Set: Fallen v. Collins, (Tex. Civ. App.)
120 S. W. 540 (1909).
3. Colo. Spencer v. Murphy, 6 Colo. App. 453. -11 Pac. 811.
Iowa Brunell v. Hopkins, 42 Iowa 429 (Holding a cultivated field not within
statute as to i rairie or timber.)
Kan. Interstate Galloway Cattle Co. v. Kline. 51 Kan. 23, 32 Pac. 62s.
Mo. Waters v. Brown, 44 Mo. 302.
4. Cal. Gamier v. Porter. 90 Cal. 105, 27 Pac. 55.
Mich. Boyd v. Rice, 38 Mich. 599.
Mo. Rev. Stal. 1879, Sec. 2129. Kussell v. Regan, 34 Mo. App. 212: Kahle v.
Hobein, 30 Mo. App. 472.
5. Atk Bizx.ell v. Booker, 16 Ark. 308.
Colo. Spencer v. Murphy, 6 Colo. App. 453, It Pac. 841.
Conn. Grannis v. Cummings, :5 Conn. 165. Si-t also Aver v. Starkey, 30 Conn.
304.
Fla. Saussy v. South Fla. It. Co., 22 Fla. 327.
111. Armstrong v. Cooley, 10 III. 509; .Johnson . Barber, 10 111. 425, 50 Am.
Dec. 516.
la. Lewis v. Schult/, 98 la. 341, 67 X'. W. 206; Brunell v. Hopkins, 12 la. 429.
Kan. Interstate Galloway Cattle Co. v. Kline. 51 Kan. 23, 32 Pac. 628; .larralt
v. Apple, 31 Ivan. 093, 3 Pac. 571: Hunt v. Haines, 25 Kan. 210.
Mo. Waters v. Brown, 44 Mo. 302; Finley v. Langston, 12 Mo. 120; Kahle v.
Hobein, 30 Mo. App. 472.
N. C. Lamb v. Sloan, 94 X. C. 534; Robertson v. Morgan. 118 N. C. 991, 21
S. K. 607.
Wis. Koike v. Chicago & N. W. It. It. Co., 26 Wis. 537: Kellog v. Chicago &
N. W. It. It. Co., 20 Wis. 223 (1870).
Ark. Bi/./ell v. Booker, 10 Ark. 308.
Cal. Gamier v. Porter, 90 Cal. 105, 27 Pac. 55. (stubhlei.
la. Brunnell v. Hopkins, 42 la. 429; .Jacobs v. Andrews, 1 Iowa 500; DeFrance
v. Spencer, 2 G. Greene 462.
Mo. Sturgis v. Robbins, 62 Me. 289.
Mich. Boyd v. Rice, 38 Mich. 599.
Mo. Russell v. Keagen, 34 Mo. App. 242; Kahle v. Hobein, 30 Mo. App. 472;
Finley v. Langston, 12 Mo. App. 120; Miller v. Martin, 16 Mo. 508.
Neb. Vansyoc v. Freewater Cemetery Assoc., G3 Neb. 143, 88 X. W. 162.
(Footnote 6 continued on next page)
110 STATUTORY CIVIL LIABILITY FOR TIMBER TRESPASS
offender liable for single or multiple damages irrespective
of the question of prudence in setting the fire or diligence
in his efforts to control it, l especially if the fire is
set within a certain closed season or without the sanction
of a permit from the proper official. 2 Under statutes re-
quiring notice before the burning a showing by the de-
fendant that the fire was set by necessity 3 or that the
plaintiff waived the notice is a good defense to an action
for statutory civil damages, 4 and if the plaintiff had notice
he can derive .no advantage from the failure of the de-
fendant to give the required notice to other adjoining own-
ers. 5 Whether the statute requires notice or not, it is
no defense to show that the property destroyed was in-
sured 6 or that the plaintiff has been indemnified for the
loss by the insurer. 7 The statutory action must be
brought either by or in the name of the party who owned
the property injured 8 and will not lie if the act complained
of is not clearly comprehended by the statute. 9 The
burning of pasture or cultivated land by a farmer has been
held not to be embraced within a statute prohibiting the
firing of the woods, 10 nor are bonfires in a backyard within
the terms of such a statute. n The jury will ordinarily be
(Footnote 6 concluded from preceding page)
N. Y. Stuart v. Hawley, 22 Barb. 619; Clark v. Frost, 8 Johns 421.
But see Webb v. Borne Etc. R. R. Co., 49 N. Y. 420, 10 Am. Rep. 389
(Affm'g 3 Lans. 453, and construing 6 Anne. Chap. 31, sec. 67. as amend-
ed by 14 Geo. Ill, Chap. 78, Sec. 76.
Wis. Fahn v. Reichert, 8 Wis. 255, 76 Am. Dec. 237.
1. Conn v. May, 36 Iowa 241 ; cf. Brunell v. Hopkins, 42 Iowa 429. Lamb v. Sloan,
94 N. C. 534.
See Burroughs v. Housatonic R. R. Co., 15 Conn. 124, 38 Am. Dec. 64 (1842), and
especially pages 70 to 79 of 38 Am. Dec.
2. Dunleavy v. Stockwell, 45 111. App. 230; Burton v. McClellan, 3 111. 434; Thoburn
v. Campbell, 80 la. 338, 45 N. W. 759; Conn. v. May, 36 la. 241.
See Jarratt v. Apple, 31 Kan. 693, 3 Pac. 571; Hunt v. Haines, 25 Kan. 210; Emer-
son v. Gardiner, 8 Kan. 452.
3. Lamb v. Sloan, 94 N. C. 534; Tyson v. Rasberry. 8 N. C. 60; Tiller v. Wilson, 1
Lea, (Tenn.) 392.
4. Lamb v. Sloan, 94 N. C. 534; Roberson v. Kirby, 52 N. C. 477.
5. Saussy v. South Fla. R. Co., 22 Fla. 327.
6. Dunleavy v. Stockwell, 45 111. App. 230.
7. Hayward v. Cain, 105 Mass. 213.
8. Rockingham Mut. F. Ins. Co. v. Bosher, 39 Me. 253, 63 Am. Dec. 618. See also
Armstrong v. Colley, 10 111. 509.
9. Grannis v. Cummings, 25 Conn. 165 (1856). Def. had license to occupy plaintiff's
land.
10. Acree v. The State, 122 Ga. 144, 50 S. E. 180; Brunell v. Hopkins, 42 Iowa 429;
Emerson v. Gardiner, 8 Kan. 452 (Act. Fed. 16, 1860). But see Nail v. Taylor.
247 111. 580 (1910).
11. McNemar v. Conn, 115 111. App. 31 (1904).
THE SETTING OF FIRES BY RAILROADS 111
required to determine whether the act of the defendant was
the proximate cause of the loss suffered by the plaintiff. 1
94. Statutory Liability of Railroad O perators for the
Setting of Fires. In many states there are special laws plac-
ing upon railroad operators the burden of proving due care by
making the setting of a fire by a locomotive prima facie
evidence of negligence 2 and in a number of states the law
makes the railroad operators absolutely liable for damages
resulting from fires caused by locomotives. 3 However,
courts will construe such statutes as making the railroad
operator liable only when there is not satisfactory proof of
due care, if the language of the law is capable of such con-
struction. 4 It has been held in North Dakota that the
presumption of negligence on the part of the railroad as
fixed in the statute is one of law, and that the determina-
tion of whether it has been overcome by evidence submitted
by the defendant lies within the province of the court and
1. Aycr v. Starkey, 30 Conn. 304 (1861); Nail v. Taylor, 247 111. 5 (1910); Anna-
polis Etc. K. K. v. Gantt, 39 Md. 115 (1873). Burlington & Mo. R. R. v. West-
over, 4 Neb. 268.
2. See citations in railroad cases under notes: 7 p. 74; 2 p. 75; 3 p. 75 and 7 p. 77
of this chapter, and also the following cases. :
Colo. N. P. Ry. To. v. DeBush, 12 Colo. 294; D. & R. G. R. R. v. Haley, 10 Colo.
4; D. & R. G. R. R. v. Henderson, 10 Colo. 2.
Conn. Burroughs v. Hottsatonic R. R. Co., 15 Conn. 124, 38 Am. Dec. 70 (1842).
On pages 70 to 79 of Vol. 3S, American Decisions, will be found a full dis-
cussion of this subject.
111. Ry. v. Funk, 85 111. 4GO; Rwy. Co. v. Muthersbaugh, 71 111. 572.
Kan. Ry. v. Eddy, 2 Kan. App. 291; Ry. v. Huitt, 1 Kan. App. 781; Ry. v.
Tubbs, 47 Kan. 630; Ry. v. Richardson, 47 Kan. 517; Ry. Co. v. Mer-
rill, 40 Kan. 404. Sec Mo. Etc. Ry. v. Mackey, 127 U. S. 205.
Me. Pratt v. Ry., 42 Me. 579; cf. Chapman v. Ry. 37 Me. 92.
Mich. Kisk v. Wabash Ry., H4 Mich. 248; Sec Oborn v. Ry. Co., Ill Mich 15.
Minn. Hayes v. M. & S. I'. Ry. Co., 45 Minn. 17; Mahoney v. St Paul Etc. Ry.
Co., 35 Minn. 361, 29 N. W. 6; Karsen v. Mil. Etc. Ry. Co., 29 Minn.
12; 11 N. W. 122.
Mo. Campbell v. Ry. Co., 121 Mo. 340: Coale v. Hannibal Etc. R.Co., 60 Mo.
227 (1875).
N. D. Smith v. N. P. Ry. Co., 3 N. D. 17, 53 N. \V. 173.
Ohio Martz v. Ry. Co., 12 O. C. Ct. 141; Trust Co. v. Ry., 89 Eel) 637, 12..
O. F. D. 184.
S. O. See Lipfield v. Ry. Co., 41 S. C. 185.
V. S. Niskern v. Ry. Co., 22 Fed. 811.
3. Ingersoll v. Stock bridge & P. R. R. Co., 8 Allen (Mass.) 438 (1864) ; Matthews V,
Ry. Co., 121 Mo. 29S; Rowell v. Railroad, 57 N. II. 132 (1876).
,SVr Greenfield v. R. R. Co., 49 N. \V. 95 (I'mler Iowa ("ode 1873, Sec.
1289.)
4. Iowa Babcock v. Ry. Co., 62 la. 593; Libby v. Rwy. 52 la. 92; 81ooson v. Rwy.,
51 la. 294; Small v. (". R. I. & P. R. R. Co., 50 la. 338 Dec IS79. sec.
1280, code 2873.)
Kan. A. T. & S. F. Ry. v, Dennis, 38 Kan. 424 (1888),
N. J. Hoff v. Ry., 16 Vroom201.
Ohio Railway v. Wahlers, 1 O, C, C (N. S.) 139, 14 O. C, D. 310.
112 STATUTORY CIVIL LIABILITY FOR TIMBER TRESPASS
not of the jury. l Negligence on the part of the railroad
company will ordinarily render it liable irrespective of
whether the one injured has been negligent. 2
Statutes of this character are not repugnant to the
Constitution of the United .States as denying the equal
protection of the law, as taking property without due con-
sideration, or as impairing the obligation of a contract. 3
The words "other property" in such a statute have been
held to comprehend growing timber, 4 and a statute which
made "every railroad corporation" liable has been held
applicable to an unincorporated owner. 5 A railway
company is not liable for fires started by a stranger within
its right of way. 6 Such statutes do not relieve railroad
companies from the common law liability for the injury
of property, but merely afford an additional remedy. 7
Although a railroad may be required to have proper appli-
ances-, it is not required to have the best possible appli-
ances. 8
1. Smith v. N. P. Ry. Co., 3 N. D. 17, 53 N. W. 173 (1892). Of. Carter v. Ky. Co.
(Iowa) 21 N. W. 607; Davidson v. Ry. 34 Minn. 51, 24 N. W. 324; Burlington &
Missouri R. R. v. Westover, 4 Neb. 268.
2. West v. Ry., 77 la. 654; Burlington & Missouri R. R. v. Westover, 4 Neb. 268.
3. Colo. U. P. Ry. v. De Busk, 12 Colo. 294; D. & R. G. Ry. v. Henderson, 10 Colo.
2.
Kan. Missouri Etc. Ry. v. Merrill, 40 Kan. 404 ; See Missouri Etc. Ry. v. Mackey,
127 U. S. 205.
Mo. Campbell v. Ry., 121 Mo. 340; Matthews v. Ry., 121 Mo. 298.
U. S. St. Louis Etc. Ry. v. Matthews, 165 U. S. 1, 17 Sup. Ct. 243.
4. Pratt v. Ry. Co., 42 Me. 579. But see Chapman v. Ry. Co. 37 Me. 92, holding
statute did not cover wood piled temporarily beside the track.
5. U. P. Ry. Co. v. De Busk, 12 Colo. 294.
6. Railway v. Kelley, 10 O. C. C. 322, 6 O. C. D. 555 (Afld. in Railroad v. Kelley, 37
Bull. 392.
7. D. & R. G. Ry. v. Henderson, 10 Colo. 2; Fisk v. Wabash Ry. 114 Mich. 248;
Mahoney v. St. Paul Etc. Ry. Co., 35 Minn. 361.
8. Osborn v. Ry., Ill Mich. 15; Lipfleld v. Ry. Co. 41 S. C. 285. But see Balsley v.
R. R. (111.) 8 N. E. 859 (Holding lessor liable for action of lessee.
CHAPTER IX
95. The Cutting of Growing Timber, State Stat-
utes. In nearly every American state the cutting of grow-
ing trees on land belonging to another or upon public lands
is made a criminal offense by statute. l
1. Ala. Criminal Code, 1907, Sec. 7828 (knowingly.) See also Sees. 7833, 7834. 7837.
Ariz. Revised' Statutes, 1913, Sees. 611 and 612 of Penal Code (wilfully).
Ark. Digest of Statutes, 1904, Sec. 1901-1907; See Sec. 1932, (wilfully).
Cal. Penal Code, Deering, 1915, Sec. 602, Page, 275 (wilfully).
Col. Annotated Statutes, Mills, 1912, Sec. 2010 (wilfully, and maliciously; shade
and fruit), cf. Sec. 2016.
Conn. General Statutes, Revision of 1902, Sec. 1237 (wilfully).
Del. Revised Statutes of 1852, as amended to 1893, p. 938, (wilfully and unlaw-
fully); Revised Laws, 1915, Sees. 4742, 4747, and 4748, (4747 by telephone Co.
4748 refers to ornamental).
Fla. Compiled Laws, 1914, Sec. 3409, 3412- 3414, 3417 (wilfully).
Ga. Code of 1914. Sec. 226 (unless deed of land on record).
Ida. Revised Statutes, 1908, Sec. 7158 (wilfully).
111. Revised Statutes, Hurd, 1912. Chap. 38, Sec. 269. (knowingly and wilfully.
Ind. Annotated Statutes, Burns, 1914, Sec. 2308 (without license, private, state
or U. S.); 2310; 2316 (highway).
Iowa. Code of 1897, Sec. 4829 (wilfully).
Kan. General Statutes, Dassler, 1909, Sec. 9692 (in which he has no interest) ; cf.
9687-88.
Ky. Statutes, Carroll, 1915, Sec. 1201 (feloniously); 1244; 1257 (fruit and shade).
La. Revised Laws, Wolff, 1904, Sec. 817, p. 339 (without consent of owner); p.
340, 341, (wilfully and feloniously) ; 343, Sec. 819, (school lands.)
Me. Revised Statutes, 1903, Chap. 128, Sec. 18, p. 947 (wilfully).
Md. Annot. Code, Bagby, (1914) Vol. 3, p. 335, Sec. 83 (wilfully or maliciously).
Cf. Vol. 1 (1911) p. 694, Sec. 366, (by telephone Co.)
Mass. Revised Laws, 1902, Chap. 208, Sees. 99, 100, p. 1764, (wilfully) Vol. 2;
See amendment Ch. 444, Sec. 1, Law 1904, p. 1426, Sup. Rev. L. 1902-1908.
Mich. Annotated Statutes, Howell, 1913, Sec. 14652 and 14653, (wilfully).
Minn. General Statutes, Tiffany, 1913. Sec. 8934 (wilfully); Sec. 8819 (pine on
state lands).
Miss. Code of 1906, Sec. 1378 and 1379 (without permission) ; Sec. 1391 (boxing
pine).
Mo. Annotated Statutes, 1906, Sec. 4574 (in which he has no interest).
Rev. Stat. 1909, Sec. 4600.
Mont. Revised Code, 1907, Sees. 8610, 8750 (wilfully). In city, 8765.
Neb. Compiled Statutes, Brown & Wheeler, 1911, Sec. 7745 and 7746, Revised
Statutes, 1913; Sees. 8679 to 8683 (wilfully and maliciously).
Nev. Compiled Laws, 1861-1900, Cutting; Sees. 328-331 (without fee simple
title). Revised Laws, 1912, Sec. 2114-2116. (Same).
N. H. Public Statutes, 1901, Chap. 266, Sec. 19, p. 809 (maliciously).
N. J. Compiled Statutes, 1709-1910, Vol. 2, p. 1788, Sec. 138 (unlawfully).
(Footnote 1 continued on next page)
113
114 INJURY TO TREES AS A CRIME
While in a few states the general provisions of such
statutes have remained practically unchanged from the
earliest days of statehood, in the great majority of the states
there have been many changes. There is a striking similar-
ity in the provisions regarding the cutting of trees as mali-
cious mischief, but a great diversity in the definition of
the offense and in the character of the penalty prescribed
for the misdemeanor or felony of cutting timber for profit
from land owned by another. In a large number of states
the general statute making it unlawful for one to cut tim-
ber upon the land of another wichout permission is appli-
cable also to lands of the state or of the United States, but
in many states there are special statutes regarding timber
trespasss on public lands. In a few states the laws of this
character are of peculiar form. x The application of crimi-
(Footnote 1 concluded from preceding page)
N. M. Compiled Laws, 1897, Sec. 1137 (wilfully, maliciously and wantonly.)
Annotated Stat. 1915, Sec. 1575. (Same).
N. Y. Consolidated Laws, Birdseye, Gumming & Gilbert, 1909, Sec. 1425 of
Penal Law, par. 1, 2 and 6, p. 3994 (wilfully).
N. C. Revised Laws, Pell, 1908, Sees. 3511, 3687, 3Y41 (knowingly and wilfully).
N. D. Compiled Laws, 1913, Sec. 10064 (maliciously); 10068 (fruit trees) .
Ohio Annotated General Code, Page & Adams, 1912, Sees. 12455-12457 (wilful
trespass): 12490 (malicious injury); 12498 (public land.)
Okla. Compiled Laws, 1909, Sec. 2704 (wilfully); 2705 (maliciously); 2709 (fruit).
Ore. General Laws, Lord, 1910, Sec. 1979 (maliciously); 1984 (wilfully).
Pa. Digest of Laws, Purdon, 13th Ed. 1910, p. 4754, Sec. 1 (knowingly).
R. I. General Laws, 1909, Chao. 345, Sec. 23, p. 1263 (without consent of owner).
S. C. Code of 1912, Sec. 223 of Criminal Code (wilfully, unlawfully and maliciously.)
S. D. Revised Code, 1903, Sec. 724 of Penal Code (wilfully) ; Sec. 725 (malicious-
ly) ; 539 (public lands).
Tenn. Code, Shannon, 1896, Sec. 6496, par. 8; See par. 6 (knowingly, wilfully and
wantonly); Sec. 6524 (ornamental trees). Ch. 106, Laws of 1897, amended Ch.
381, 1899, makes wilful trespass a felony.
Te\. Penal Code, White, Rev. Ed. 1911, Art. 825, 826, 829 (knowingly).
Utah Compiled Laws, 1910, Sees. 1142; 4430 (wilfully and maliciously); 4446;
4476, and 4477.
Vt. Public Statutes, Lord & Darling, Rev. 1906; 5686-87; 5697-99; 5708 (shade.
ornamental and fruit).
Va. Annot. Code, Pollard, 1904, Sec. 3857 (Shade tree.)
Wash. Codes and Statutes, Remington & Ballinger, 1910, Sec. 2659. Crim. Code
(wilfully).
W. Va. Code of 1913, Hogg, Sec. 3513 (Fish and Game Law).
Wis. Statutes, 1915, Sec. 4415 b. (larceny, standing trees); 4442; 4447; 4449
(public land).
Wyo. Compiled Statutes, Mullen, 1910, Sec. 5857 (malicious injury to property,
including trees) ; 5866 (shade and fruit trees).
Cf. Federal Law: Act June 25, 1910 (36 Stat. 855, 857) Sec. 6; Act Mar. 4, 1909.
(35 Stat. 1098) Sees. 49 and 51. See pages 124 and 125 of this work.
Ark. Digest of Statutes, Ark. 1904, Kirby, sec. 1988-1989, making the cutting of
timber from unsurveyed land an offense against the state. (An un-
official survey may protect from the penalty of this statute. Sawyer
Etc. Lbr. Co. v. State, 75 Ark. 309. 87 S. W. 431.
<ja. Criminal Code, Ga., 1911, sec. 226, declaring it a misdemeanor for anyone
(Footnote 1 continued on next page)
STATE CRIMINAL TRESPASS STATUTES 115
nal trespass statutes is usually limited specifically to those
cases in which the unlawful cutting is done "knowingly,"
"wilfully," "maliciously," or "wantonly"; and such statutes
frequently contain two or more of these words connected
by the word "and" or the word "or." Wherever any one
or more of these words are used in the statute there can be
no conviction if the defendant succeeds in establishing that
the act was not done with the specific intent required by the
statute. l The word "wilfully" as used in an indictment
has been held equivalent to "knowingly," 2 but the weight
of opinion undoubtedly is that it implies something more
than a voluntary and intentional act. It is an "act" in-
(Footnote 1 concluded from preceding page)
to cut timber from uninclosed land unless he has a deed of conveyance
on record in the county where the land is situated, or a written contract
from another who holds a recorded deed.
But see: Shaw v. Fender et al. 138 Ga. 48, 74 S. E. 792 (Defendant had
made full payment and Plaintiff had no interest).
N. C. Revised La\ts N. C. 1908, Pell, Sec. 3741, misdemeanor and double dam-
ages to cut from public lands before title is complete.)
1. Ala. Pippen v. State, 77 Ala. 81; Johnson v. State, 61 Ala. 9; See, Williams v.
Hendricks, 115 Ala. 277, 67 Am. St. Rep. 32; Southern Bell Tel. Co. v.
Allen, 109 Ala. 224, 19 So. 1. Davis v. Arnold, 143 Ala. 228, 39 So. 141.
Conn. State v. Foote, 71 Conn. 737, 43 Atl. 488.
Fla. Preston v. State, 41 Fla. 627, 26 So. 736; Boykin v. State, 40 Fla. 484, 24
So. 141.
Ga. Hateley v. State, 118 Ga. 79, 44 S. E. 852; Murphey v. State, 115 Ga. 201,
41 S. E. 685; Harvey v. State, 6 Ga. App. 241, 64 S. E. 669; Black v.
State, 3 Ga. App. 297. 59 S E. 823. See Lbr. Co. v. Carter, 5 Ga. App.
344, 63 S. E. 270.
111. Mettler v. People, 135 111. 410, 25 N. E. 748.
Ind. State v. Cole, 90 Ind. 112; Lessen v. State, 62 Ind. 437; Dawson v. State,
52 Ind. 478; Palmer v. State, 45 Ind. 388.
La. State v. Gainey, 135 La. 459, 65 So. 609. (Proof and variance).
Mass. Commonwealth v. Williams, 110 Mass. 401; See Commonwealth v. Wilder,
127 Mass. 1.
Minn. Price v. Dennison, 95 Minn. 106, 103 N. W. 728.
Mo. Cookman v. Mill, 81 Mo. App. 297; State v. Newkirk, 49 Mo. 84. State v.
Kempf. 11 Mo. App. 88.
N. J. Lott v. Loventhal, 80 N. J. L. 216, 76 Atl. 328; Folwell v. State, 49 N. J.
L. 31, 6 Atl. 619.
N. Y. Hewitt v. Newburger, 141 N. Y. 538, 36 N. E. 593; McMorris v. Howell.
89 N. Y. App. Div. 272, 85 N. Y. Suppl. 1018.
N. C. State v. McCracken, 118 N. C. 1240, 24 S. E. 530; State v. Roseman. 70
N. C. 235. Cf. Davis v Frazier, 150 N. C. 447, 64 S. E. 200.
Tex. Allsup v. State (Tex. Cr. App. 1901), 62 S. W. 1062; Yarbrough v. State
28 Tex. App. 481, 13 S. W. 775; Lackey v. State, 14 Tex. App. 164: Mc-
Anley v. State 43 Tex. 374. State v. Warren, 13 Tex. 45.
Va. Wise v. Com., 98 Va. 837, 36 S. W. 479; Dye v. Com., 7 Gratt. 662; Rat-
cliffe v. Com.. 5 Gratt. 657.
Wis. See Werner v. State, 93 Wis. 266, 272, 67 N. W. 417. GolonbiesM v. State.
101 Wis. 333, 77 N. W. 189.
Can. Exp. Donovan, 15 N. Brunsw. 389; Reg. v. McDonald. 12 Ont. 381; Reg.
v. Davidson. 45 U. C. Q. B. 91.
2. Wong v. Astoria, 13 Ore. 538; See People v. Sheldon. 68 Calif. 434; Welsh v. State.
11 Tex. 374.
116 INJURY TO TREES AS A CRIME
tentionally done with a wrongful purpose," : although
not necessarily with an evil intent to do wrong to some
particular person. The legal malice required to constitute
the crime may be inferred under certain circumstances. 2
96. The Establishment of Criminal Intent is
Essential to Conviction. It is ordinarily held that crim-
inal intent must be shown to support a conviction under one
of these statutes even where the statute does not restrict
its application in the matter of intent, and trespass com-
mitted under a bona fide claim of title, 3 or through acci-
dent, 4 or a misunderstanding 5 will not render one liable
to the penalties of such acts. However, the claim of title
must rest upon a reasonable basis 6 and a mere belief in
the right will not exempt a trespasser from the penalties
of an act. Ignorance of the law will not constitute a de-
fense, 7 and it has been held that criminal intent was not
essential under a Federal statute. 8 Failure to observe
the directions of the statute has been held to establish the
criminal intent, 9 and the doing of the forbidden act in it-
1. McMorris v. Howell, 89 N. Y. App. Div. 272, 85 N. Y. Suprl. 1018; See, Hewitt v.
Newburger, 141 N. Y. 538, 36 N. E. 593; Parker v. Parker, 102 Iowa 500, 506,
71 N. W. 421 ; State v. Dahlstrom, 90 Minn. 72, 95 N. \V. 580; Anderson v. How.
116 N. Y. 336, 22 N. E. 695; State v. Yellowday, 152 N. C. 793. 67 S. E. 480;
State v. Sneed, 121 N. C. 614, 28 S. E. 365.
2. Langston's Case, 96 Ala. 44. 11 So. 344; McCord's Case, 79 Ala. 269; Pippen's
Case, 77 Ala. 81; Johnson's Case, 61 Ala 9. See Com. v. Dougherty, 6 Gray
(Mass.) 349; Ex. p. Eads 17 Neb. 145, 22 N. W. 352.
3. Hateley v. State, 118 Ga. 79, 44 S. E. 852; Mettler v. People, 135 111. 410, 25 N. E.
748; Wagstafl v. Schippel, 27 Kan. 450; State v. Prince, 42 La. Ann. 817, 8 So.
591; Baker v. Hannibal etc. R. Co., 36 Mo. 543; State v. Luther, 8 R. I. 151;
Allsop v. State (Cr. App. Tex. 1901), 62 S. W. 1062; Lackay v. State, 14 Tex.
App. 164; Ex. p. Donovan, 15 N. Brunsw. 389.
4. U. S. v. Darton, (U. S. C. C.) 6 McLean 46; See State v. Parker, 81 N. C. 548;
State v. Simpson, 73 N. C. 269 (Injury to animals) ; State v. Lewis, 10 Rich.
(S. C.) 20 (Negligently firing the woods.)
5. State v. Hause, 71 N. C. 518.
Sawyer etc. Lumber Co. v. State, 75 Ark. 309, 87 S. W. 431. But see People v.
Christian, 144 Mich. 247, 107 N. W. 919; State v. Shevlin-Carpenter Co., 99
Minn. 158, 108 N. W. 935; State v. Dorman, 9 S. D. 528, 70 N. W. 848. (Hold-
ing criminal liability under the statutes not dependent on intention) ; State v.
West, 10 Tex. 554.
6. State v. Wells.il42 N. C. 590. 55 S. E. 210; State v. Durham, 121 N. C. 546, 28
S. E. 22; State v. CaUoway, 119 N. C. 864, 26 S. E. 46; State v. Glenn, 118 N. C.
1194, 23 S. E. 1004; State v. Fisher, 109 N. C. 817, 13 S. E. 878; State v. Craw-
ley, 103 N. C. 353, 9 S. E. 409; State v. Bryson, 81 N. C. 595; See, People v.
Stevens, 109 N. Y. 159, 16 N. E. 53; State v. Mallard, 143 N. C. 666, 57 S. E.
351; Boykin v. State, 40 Fla. 484, 24 So. 141; Landley v. State, (Tex. Cr. App.
1898), 44 S. W. 165.
7. United States v. Murphy, 32 Fed. 376.
8. United States v. Murphy, 32 Fed. 376. U. S. v. Reder, 69 Fed. 965.
9. Derixson v. State, 65 Ind. 385; Deaderick v. State, 122 Tenn. 222, 122 S. W. 975
(overruling Dotson v. State, 6 Coldw. (Tenn.) 545); Cf., State v. Turner, 60
Conn. 222, 22 All. 542.
CRIMINAL INTENT ESSENTIAL TO CONVICTION 11.7
self constitutes evidence of criminal intent. l A license
to cut trees has been held no defense to a wanton cutting
of ornamental trees. 2 It has been held under a Texas
statute that the plaintiff must show that the trees cut did
not belong to the defendant. 3 One is not liable under such
a statute because of the cutting of timber by an employee
through mistake where the employer had no knowledge of
the unlawful cutting, 4 nor is he liable if the employee cut
the trees contrary to the employer's orders. 5
97. Criminal Timber Trespass Statutes are Con-
strued Strictly. Under statutes making the unauth orized
cutting of timber on the land of another a specific offense,
actual severance is necessary, 6 and the injury must be
substantial. 7 Such statutes are invariably strictly con-
strued because of their penal nature. If the statute im-
poses a given penalty for each tree cut or carried away,
the product of the unit fine and the number of trees severed
or taken may be recovered ; 8 but if the statute merely pro-
vides a penalty for the offense of cutting or carrying away
trees or timber, the severance or asportation of a number of
trees at one time, even though they be taken from non-
contiguous tracts, will constitute but a single offense. 9
Some statutes make either the cutting or the asportation of
the trees an offense, 10 but even under such a statute there is
but a single offense committed if the cutting and carrying
away are simultaneous or comprise a single transaction; n
and if the statute simply prohibits a cutting the offense will
be complete without an asportation. 12 It has been held
1. Knight v. State, 64 Miss. 802, 2 So. 252; State v. Green, 35 S. C. 266, 14 S. E. 619;
U. S. v. Stone, 49 Fed. 848; U. S. v. Barton, 6 McLean 46; U. S. v. Thompson, 6
McLean 56; U. S. v. Redy, 5 McLean 358.
2. Com. v. Clark, 3 Pa. Super. Ct. 141.
3. White v. Texas, 14 Tex. App. 449.
4. Boarman v. State, 66 Ark., 65, 48 S. W. 899.
5. Fairchild v. New Orleans Etc. R. Co., 60 Miss, 931, 45 Am. St. Rep. 427; See also
New Orleans Etc. R. Co., v. Reese, 61 Miss. 581.
6. Com. v. Bechtel, 4 Pa. L. J. Rep. 306; Maskill v. State, 8 Blackf. (Ind.) 299 ("cut
down").
7. State v. Towle, 62 N. H. 373.
8. People v. McFadden, 13 Wend. (N. Y.) 396 (1835).
9. State v. Moultrieville, 1 Rice (S. C.) 158 (1839). State v. Paul, 81 Iowa, 596, 77
N. W. 773 (1891).
10. State v. McConkey, 20 Iowa 574.
11. State v. Paul, 81 Iowa 596, 47 N. W. 773; Com. v. Searls, 3 Ky. L. Rep. 394.
12. Johnson v. State, 61 Ala. 9.
118 INJURY TO TREES AS A CRIME
that the offense may be established even where the entry
upon the land was lawful. * Some statutes of this char-
acter have been construed as comprehending all kinds of
growing trees, 2 but others have been considered to com-
prise only trees of the accepted timbe** species. 3 The
United States is entitled to the protection of a state statute
making it an offense to cut timber from the lands of another
within the state. 4 The special acts regarding timber tres-
pass on state lands have been rigorously enforced, 5 and the
common law has also been held to protect public lands. 6
98. Firing the Woods, State Statutes. In every
American state there are now laws imposing penalties for the
careless or intentional firing of the woods or the burning of
timber products. 7 In statutes making it a crime to set out
1. Tufts v. State, 41 Fla. 663, 27 So. 218.
2. Brown v. State, 100 Ala. 92, 14 So. 761; U. S. v. Briggs, 9 Howard 351; Forsyth v.
U. S., 9 Howard 571 ; U. S. v. Soto, 7 Ariz. 236, 64 Pac. 419; U. S. v. Stores et al..
14 Fed. 824; See U. S. v. Redy, 5 McLean 358; 19 Opin. Atty. Gen. 381.
3. Wilson v. State, 17 Tex. App. 393.
4. State v. Herold, 9 Kan. 194. But see State v. Howard, 21 Tex. 416 (Holding such
statute not applicable to state lands).
5. People v. Christian, 144 Mich. 247, 107 N. W. 919; State v. Shevlin-Carpenter Co..
99 Minn. 158, 108 N. W. 935; People v. McFadden, 13 Wend. (N. Y.) 396;
People v. Turner, 49 Hun. (N, Y.) 466, 2 N. Y. Suppl. 253 (aff'd in 117 N. Y.
227, 22 N. E. 1022, 15 Am. St. Rep. 498) ; People v. Holmes, 166 N. Y. 540, 60
N. E. 249 (Aflm. 53 N. Y. App. Div. 626, 65 N. Y. Suppl. 11-12.); Com. v. LaBar
32 Pa. Super. Ct. 228; State v. Dorman, 9 S. D. 528, 70 N. W. 848.
6. Com. v. Eckert, 2 Browne (Pa.) 249. (Dec. 1812).
7. Ala. Criminal Code, 1907, Sec. 6304, 6906, General; 6907, 6908, burning tur-
pentine trees. Act Nov. 30, 1907, S. L. p. 192, Sec. 10.
Ariz. Rev. Statutes, 1913, Penal Code, Sec. 609.
Ark. Digest of Statutes, 1904, Sees. 1698 and 1699. Firing own lands to injury
of another, Sec. 7978.
Cal. Penal Code, Deering, 1915, Sec. 384, p. 179, misdemeanor.
Colo. Annotated Statutes, Mills, 1912, Grim. Code, Sees. 2011-2014; 2011, wil-
fully or carelessly; 2012, public land; 2013, wilfully and maliciously, or
neglecting fire on own land ; 2014, neglecting camp fire.
Conn. General statutes, 1902, Sees. 1218 to 1222.
Del. Statutes of Del., Revised 1893, p. 946; Revised Stat. 1915, Sees. 722-25 and
3446-50, p. 1594 (Carelessly or out of season).
Fla. Compiled Laws, 1914, Sec. 3277, 3426.
Ga. Criminal Code of 1914, Sees. 227, 229 and 230.
Ida. Penal Code, 1908, Sec. 6921, (Misdemeanor). Includes Ry. (1901, Sec.
4760).
HI. Annotated Statutes, 1913, par. 3500, p. 1972.
Ind. Annotated Statutes, 1914, Vol. 1, Sec. 2260-2263; maliciously and wantonly.
Iowa Criminal Code of 1897, Sees. 4785 and 4786.
Kan. General Statutes, 1905, Dassler, Sec. 8741 to 8743 (wantonly and wilfully.)
Gen'l St. 1909, Sec. 3822-3823 (Same).
Ky. Statutes, Carroll, 1915, Sec. 1254, unlawfully; 1255. intentionally or negli-
gently.
La. Act July 7, 1910, S. L. No. 261, p. 446, Sec. 5.
Me. Revised Statutes, 1903, p. 916, Sec. 5.
Md. Act April 5, 1906, S. L. Ch. 294, p. 532, Sec. 10.
(Footnote 7 continued on next page)
FIRING THE WOODS, STATE STATUTES 119
a fire in the woods or a prairie, or to allow one to escape into
either the open or enclosed land of another, the word "wil-
fully" is generally construed as involving evil intent, gross
negligence, or reckless indifference. l However, the mere
setting out of the fire is in itself evidence of an unlawful in-
tent 2 which is sufficient to sustain a conviction unless
justification can be shown by the defendant. 3 Acts of this
character were punishable at common law. 4 The statutory
offense of burning the woods or the property of another is
ordinarily a misdemeanor 5 but under some statutes and
(.Footnote 7 concluded from preceding page)
Mass. Revised Laws, 1902, Chap. 208, Sec. 5, p. 1747 of Vol. 2.
Mich. Annotated Statutes, Howell, 1914, Sec. 14588, p. 5638. Vol. 5, wilfully and
maliciously.
Minn. General Statutes, Tiffany, 1913, Sec. 8927.
Miss. Code of 1906, Sec. 4988.
Mo. Annotated Statutes, 1906. Sec. 1980, wilfully, negligently or carelessly;
Revised Laws, 1909 Sec. 4621.
Mont. Revised Code, 1907, Sec. 8768 and 8769.
Neb. Revised Statutes, 1913, Sec. 8624 and 8625. Cf. 8626
Nev. Revised Laws, 1912, Sec. 6579, wilfully or negligently; 6580, engine; 6632-
33, leaving camp, etc.
N. H. Public Statutes, 1901, Chap. 277, Sec. 3, 5 and 6, p. 830.
N. J. Compiled Statutes of 1910, p. 2335, Sec. 49.
N. M. Compiled Laws, 1897, Sec. 3221, 3222. Annot. St. 1915, Sec. 1516-7.
N. Y. Consolidated Laws, Birdseye, Cum. & Gil. 1909, Sec. 1421, p. 3992.
N. C. Revised Laws, Pell, 1908, Sec. 3346; setting flre: Sec. 3347, camp fire.
N.Dak.Compiled Laws, 1913, Sec. 2797, Sees. 9774 and 9775.
Ohio Annotated Gen'l Code, Page & Adams, 1910, Sees. 7496-98, 8966-8971,
R. R. fires; 12436, maliciously or negligently.
Okla. Compiled Laws, Snyder, 1909, Sec. 59 to 66, p. 184.
Ore. Laws, Lord, 1910, Sec. 1937. 1938, 5512-5518.
Pa. Purdon's Digest, St?wart, 1903, p. 1745-1747, Sec. 41-48.
R. I. General Statutes, 1909, p. 1259, Sec. 6, Chap. 345. (Cf. p. 1258, Sec. 3,
wood) .
S. C. Criminal Code, 1912, Sec. 189 (Turpentine farm) ; 215; woods in general;
216 carrying a torch.
S.Dak. Rev. Codes, 1903, Sec. 472-473 of Penal Code, wilfully and carelessly.
Tenn. Annotated Code, Shannon, 1896, Sec. 3017-3018. Cf. Sec. 6496 Par. 11.
Tex. Penal Code, White, 1911, Art. 774, p. 1185 (wilfully or negligently).
Utah Compiled Laws, 1907, Sec. 4429, 4435, 4478 (negligently or wilfully).
Vt. Public Statutes, 1906, Sec. 5750 (wilfully and maliciously).
Va. Code 1904. Sec. 3701 and 3702; (woodpile, 3698).
Wash. Annotated Codes & Statutes, Rem. & Ballinger, 1910, Sec. 5141-5149.
W. Va.Code, Hogg, 1913, Sec. 5199, 5200 (Chap. 148, Act. 1882).
Wis. General Statutes, 1915, Sec. 4405a, 4406.
Wy. Compiled Statutes, Mullen, 1910, Sec. 5817-5818.
1. State v. Lewis, 10 Rich (S. C.) 20; see Johnson v. Barber, 10 111. 425, 50 Am. Dec.
416; Nail v. Taylor, 247 111. 580 (whether flre proximate cause, for jury).
2. Galvin v. Gualala Mill Co., 98 Calif. 268, 33 Pac. 93.
3. See Pipe v. State, 3 Tex. App. 56. Cf. State v. Williams, 68 S. C. 119, 43 S. E.
769 (tracks and offer to compromise as circumstantial evidence) .
4. Black v. State, 2 Md. 376; Phillips v. State, 19 Tex. 158.
5. Galvin v. Gualala Mill Co., 98 Calif. 268, 33 Pac. 93; Boyd v. Rice, 38 Mich. 699;
Black v. State. 2 Md. 376 (Hay); Com. v. Macomber, 3 Mass. 254; State v.
Huskins, 126 N. C. 1070; 35 S. E. 608; State v. Avery, 109 N. C. 798, 13 S. E.
931 burning cotton); State v. Simpson, 9 N. C. 460 (burning tar); State v.
Lewis, 10 Rich (S. C.) 20; State v. White, 41 Tec. 64; Phillips v. State, 19 Tex.
158, Earheart v. Com., 9 Leigh (Va.) 671.
120 INJURY TO TREES AS A CRIME
special circumstances the offense may be a felony, l and in
some states the burning of the growing timber owned by
another, with an evil purpose, has been specifically de-
clared to constitute arson. 2 In several states the firing
of one's own woods or grassland for a legitimate purpose in
such manner that the fire escapes to the "land of another is a
misdemeanor, unless the notice inquired by the statute is
given. 3 Under these statutes one can avoid conviction by
showing that the firing was necessary for his own protec-
tion, 4 or that the escape of it was accidental and unavoid-
able. 5 However, a defendant cannot escape conviction
on the defense that the adjoining landowner waived the re-
quired notice. 6 The word "woods," as used in the North
Carolina statute, has been held to mean an actual forest, 7
and a neglected field surrounded by an old fence was held
not to be a "woods" within the meaning of the statute 8
However, an abandoned field surrounded by forest land and
not separated from the same by a fence was held a "woods"
within the purview of the statute. 9
99. Special State Statutes Requiring Fire Precau-
tions by Railroads. During the last two decades of the
nineteenth century, and more especially in the early years
of the twentieth century, there has been a general movement
in the line of legislation which shall require those operating
railroads to provide proper appliances to prevent the setting
of fires by locomotives, and to keep the right of way clear
of material that is particularly inflammable. The first
legislation of this character was enacted in western states
as a protection against grass fires, but in recent years the
1. Creed v. People, 81 111. 565 (burning hay); State v. Harvey, 131 Mo. 339, 32 S. W.
1110; 141 Mo. 343, 42 S. W. 938.
2. Revised Stat. Ind. 1888, sec. 1927, from S. L. 1881, p. 174; Rev. L. Minn. 1905 Sec.
5038; State v. McMahon, 17 Xev. 365, 30 Pac. 1000 (cordwood). Cf. Searles v.
State, 6 Ohio C. C. 331, 3 O. C. C. D. 478 (Building) ; Laws of X. Y. 1817, p. 118.
1827, p. 244; Rev. St. 1846, Vol. 2, p. 755; Rev. St. \Vis.. 1878, Sec. 4406, p.
1045.
3. Lamb v. Sloan, 94 N. C. 534.
See Averitt v. Murrell, 49 N. C. 322; Wright v. Yarborough, 4 X. C. 687.
4. Tyson v. Rasberry, 8 X. C. 60; Tiller v. Wilson, 1 Lea (Tenn.) 392.
5. Finley v. Langston, 12 Mo. 120.
6. Lamb v. Sloan, 94 X. C. .334: Robertson v. Kirby, 52 X. C. 477; Wright v. Yar-
borough, 4 X. C. 687.
7. Averitt v. Murrell, 49 X. C. 322.
8. Achenback v. Johnston, 84 X. C. 264.
9. Hall v. Cranford, 50 X. C. 3.
FIRE PRECAUTIONS BY RAILROADS 121
removal of timber, brush, and other combustible material,
has been required in a large number of states under pen-
alty l While a state undoubtedly possesses extensive
1. Ala. Act Nov. 30, 1907, S. L. No. 90 (appliances).
Ark. Cf. Act Apr. 2, 1907, S. L. No. 141 (absolute liability of railroads.) p. 336.
Gal. Act Mar. 18, 1905, S. L. ch. 264, p. 235 (clear right of way).
Col. Act Apr. 10, 1901, S. L. ch. 83. sec. 14 (clear right of way); Cf. earlier acts
Jan. 13, 1874, S. L. p. 224; Act Feb. 11, 1879, S. L. p. 73; act Feb. 27,
1883, p. 198 (plowing strip).
Conn. Act May 20, 1915, S. L., ch. 322 (appliances only).
Del. Cf. Act Apr. 5, 1881, S. L. ch. 380; Act Apr. 19, 1909, S. L., ch. 71, sec. 12
(appliances) .
Ida. Act Feb. 15, 1907, S. L., p. 18, sec. 4 (appliances), sec. 7 (clear right of way) ;
act Mar. 15, 1909, S. L. p. 227, sec. 4 and 6; act Feb. 14, 1911, S. L. ch.
98, p. 341.
111. Cf. Annot. St., 1913, par. 8812 (clear right of way) same Rev. St. 1913,
Kurd, ch. 114, sec. 63.
Ind. Cf. Act March 3, 1911, ch. 107 (liable for damages and insurable interest).
Ky. Act Mar. 19, 1912, S. L. ch. 133, sec. 25-26 (appliances only).
La. Act July 4, 1904, S. L. No. 113, sec. 15, p. 248; act July 4, 1910, S. L. No.
261, p. 446; act July 9, 1912, S. L. No. 127.
Me. Act Mar. 25, 1891, S. L. ch. 100, p. 90; act. Mar. 24, 1915, S. L. ch. 196, p.
165; cf. Act. Mar. 15, 1911, S. L. ch. 35, p. 30, and Act Mar. 11, 1915,
S. L. ch. 68, p. 46 (both requiring patrol).
Md. Act Apr. 5, 1906, S. L. ch. 294, sec. 12 (appliances only) (Art. 39 A, Sec.
12-13, Pub. Civ. Laws 1911).
Mass. Act May 17, 1907, S. L. ch. 431, p. 376; act Feb. 25, 1914, S. L. ch. 101, p.
72.
Mich. Act June 18, 1903, S. L. No. 249, sec. 12.
Minn. Act Apr. 18, 1895, S. L. ch. 196, p. 472; act Apr. 21, 1903, S. L. ch. 363. sec.
12; Act. Apr. 13, 1909, ch. 182, p. 204; Act Apr. 12, 1911, ch. 125, sec. 14;
Act Apr. 2, 1913, ch. 159, sec. 3. Cf. Act April 22, 1909, S. L. 378 (rail-
roads given insurable interest).
Mo. Act. Mar. 31, 1887, S. L. p. 101 (insurable interest); Act May 7, 1909, p.
359 (penalty double cost of clearing).
Mont. Civil Code 1895, sec. 952; act Mar. 18, 1901, S. L. p. 163 (plow and burn);
Act Mar. 5, 1903, S. L. ch. 63 (plow and burn) (penalty of both acts
double cost).
Neb. Act effective July 10, 1897, S. L. ch. 17 (mowing right of way) Comp. St.
1911, sec. 46902.
N. H. Act May 7, 1913, ch. 125 (right to take adjoining land) ; Act May 21, 1913,
S. L. ch. 155 (required to clear adjoining land); Act Apr. 7, 1915, S. L.,
ch. 100 (Distance increased).
N. J. Act. Apr. 12, 1909, S. L. ch. 74, p. 102; (flre lines required); Cf. act Mar.
30, 1915, S. L. ch. 109 (requiring patrol).
N. M. Act Apr. 1, 1884, S. L. ch. 34 (plow and burn).
N. Y. Act May 15, 1885, S. L. ch. 283, sec. 25, p. 482; Act May 3, 1904, S. L. ch.
590, sec. 228 (appliances and clearing) 224a, (inspection) ; (224b, free
rides).
N. C. Cf. Act Mar. 9, 1915. S. L. ch. 243, Sec. 10 (Carei n burning right of way).
Ohio Act Apr. 9, 1885, S. L. p. 118 (appliances): act Mar. 24, 1890, S. L. p. 99
(clear right of way).
Oreg. Act Feb. 23, 1907, S. L. Ch. 131, Sec. 8, p. 241; Act. Feb. 24, 1911, S. L.
Ch. 278, Sec. 10-11 (appliances and clear right of way).
Pa. Act June 3, 1915, S. L. No. 353, art. 8 (no definite requirement).
R. I. Act. Apr. 23, 1909, S. L. Ch. 395, sec 14.
S. D. Laws 1893, Ch. 90; Civil Code 1903, Sec. 516 (making guard outside
right of way).
Va. Ace Jan. 18, 1904, S. L. p. 985, Sec. 18 (appliances); Sec. 55 (right of
way); Mar. 13, 1908, S. L. Ch. 269, p. 388 (absolute liability); Mar.
14, 1908, S. L. Ch. 392, p. 679 (insurable int.) Cf. S. L. 1914. Ch. 195,
S. 23-26.
(Footnote 1 continued on next page)
122 INJURY TO TREES AS A CRIME
powers as to requiring reasonable precautionary efforts
against fire on the part of railroad operators, the legislature,
in imposing such duties upon railroad companies, must main-
tain a due regard for private property rights. Although
several statutes have authorized the removal of inflammable
material from private lands adjacent to railroads, the New
Jersey act of April 12, 1909, requiring the construction of
fire lines adjacent to all railroads and providing no compen-
sation to nd joining owners for the cutting of timber or the
digging of the soil adjacent to the right of way was declared
unconstitutional in 1913. 1
100. Federal Trespass Statutes and the Interpreta-
tion of them by the Courts. A Federal statute of March
2, 1831 (4 Stat. 472) imposed a penalty of not less than
triple value and imprisonment for not over twelve months
for the offense of unlawfully cutting, removing, or wantonly
destroying live oak, red cedar, or other timber on lands of the
United States reserved for naval purposes, or for cutting or
removing timber from other lands of the United States with
intent to export it or use it for any purpose other than for the
United States navy. 2 An act of March 3, 1859, (11 Stat.
408) imposed a penalty of not over $500 and imprisonment
for not over twelve months for the unlawful cutting and de-
stroying of any timber standing upon land reserved or pur-
chased by the United States for military or other purposes.
An act of March 3, 1875 (18 Stat. 481.) imposed a fine of not
over $500 or imprisonment for not over twelve months for
the cutting or injuring of ornamental or other trees on lands
reserved or purchased for public uses by the United States.
The acts of 1859 and 1875 were held not to apply to the
(Footnote 1 concluded from preceding page)
Wash. Act. Mar. 16, 1903, 8. L. Ch. 114 (appliances) ; Suppl. 1913 to Code of 1910,
sec. 5277-14 to 5277-18. Amdts. S. L. 1911, ch. 125, sec. 14-18.
VV. Va.Act Mar. 1, 1909, S. L. ch. 60, p. 470; code 1915, ch. 62, sec. 54, 54a (appli-
ances and clearing right of way) .
Wis. Act. Apr. 17. 1895, S. L. ch. 266, p. 522; act May 25, 1905, ch. 264, sec. 17.
Act May 13, 1909 ch. 119. (patrol inspection); act June 30, 1911, ch.
494 (insp.,adds traction & portable) S. L. 1911, ch. 664, sec. 100, 107
(cor.)
Wyo. Act Mar. 8, 1886, S. L. ch. 50, p. 106 (plowing); act Jan. 8, 1891, S. L. ch.
34, p. 156 (burning right of way).
1. Vreeland v. Forest Commission, 12 Buchanan 349. Cf. C. C. C. & St. L. R. R. v.
Hamilton, 200 111. 633; Checkley v. 111. Cent. R. R., 257 111., 491 (requirement to
clear right of way constitutional) .
:2. Cf. Act March 1. 1817, (3 Stat. L. 347).
FEDERAL TRESPASS STATUTES 123
public lands of the United States in general, but only to
lands reserved or purchased for particular purposes. In
the United States Revised Statutes of 1878 the penalty pro-
visions of the act of March 2, 1831, were incorporated as
sections 2461 and 2462, and the provisions of the act of
March 3, 1859, were reenacted as section 5388.
The so-called Timber and Stone Act of June 3, 1878,
(20 Stat. 89) authorizing the sale of certain public timber-
lands in areas not exceeding 160 acres to any one person or
association of persons, provided in section four for the im-
position of a fine of not less than $100 nor more than $1000
for the cutting of timber from public lands in the states of
California, Oregon and Nevada, and the territory of Wash-
ington, except where the timber was to be used for agricul-
ture, mining or for the benefit of the United States. Section
five of this act provided that persons prosecuted under sec-
tion 2461 of the Revised Statutes of 1878 might be relieved
from further criminal prosecution through the payment of
the sum of $2.50 per acre for all lands upon which unlawful
cutting had been done, provided the timber had not been
cut for exportation. l The provisions of this act were ex-
tended to all public land states by an act of August 4, 1892
(27 Stat. L. 348). The payment of the $2.50 per acre did
not operate to relieve the offender from civil liability for the
timber unlawfully cut; 2 nor is such payment conclusive
evidence of guilt under the penal statute. 3
In an act of June 3, 1878, (20 Stat. 88) authorizing the free
use of timber standing on mineral lands within the states
of Colorado and Nevada, and the territories of Arizona,
Dakota, Idaho, Montana, New Mexico, Utah and Wyoming,
and in all other mineral districts of the United States, for
building, agricultural, mining or other domestic purposes,
under regulations prescribed by the Secretary of the In-
terior, it was provided that any violation of the act or regu-
lations made there under should constitute a misdemeanor
punishable by a fine of not over $500, to which might be
added imprisonment for not over six months.
1. Shiver v. U. S. 159 U. S., 591; U. S. v. Smith, 11 Fed. 487; 16 Op. At. Gen. 189
2. U. S. v. Scott et al. 39 Fed. 900; Morgan v. U. S. 148 Fed. 189, 78 C. C. A. 323. Ct
Stone v. U. S. 64 Fed. 667, 12 C. C. A. 451 (Aff'd 167 U. S. 178, 17 S rt. 778.
42 L. ed. 127).
3. Cox v. Cameron Lumber Co. 39 Wash. 562. 82 Pac. 116.
124 INJURY TO TREES AS A CRIME
On June 4, 1888 (25 Stat. 166) section 5388 of the Revised
Statutes was amended so as to specifically apply to timber
on Indian reservations and to provide for alternative or
combined fine and imprisonment. On September 21, 1888,
the Attorney General held that section 5388, as amended,
did not apply to individual Indian allotments. :
Because of a conflict in court decisions as to the applic-
ability of sections 2461 or 5388 of the revised statutes to the
boxing of trees on public lands for the purpose of making
turpentine and other products, 2 it was found difficult to
protect the timber on public lands from injuries of this char-
acter. An act of June 4, 1,906 (34 Stat. 208) cured the de-
fect by declaring the chipping or boxing of a tree upon public
lands for any such purpose to be a misdemeanor punishable
by a fine of not over $500, or imprisonment for not over
twelve months, or by both such fine and imprisonment.
In an act of March 4, 1909, (35 Stat, 1088) entitled "An
act to codify, revise and amend the penal laws of the United
State?," the provisions of previous acts weie combined and
amended in sections 49, 50 and 51 (35 Stat. 1098). Section 49
reenacted with certain modifications the provisions of sec-
tion 2461 of the Revised Statutes of 1878 and section 4 of the
act of June 3, 1878 (20 Stat. 89). This section provides a
fine of not over $1000 or imprisonment for not over one year,
or both; but excepts ordinary uses by miners and agricul-
turists and all other privileges under existing laws. Section
50 was a reenactment of section 5388 of the Revised Statutes
of 1878, as amended by the act of June 4, 1888 (25 Stat. 166) .
Section 51 was substantially a reenactment of the act of
June 4, 1906 (34 Stat. 208) regarding the boxing of timber
for turpentine purposes.
Section 6 of an act of June 25, 1910, (36 Stat. 855) amend-
ed section 50 of the act of March 4, 1909, so as to make it
a criminal offense to cut timber from Indian allotments
during the time that they are held under trust patents or
under patents containing restrictions against alienation,
with the same penalties as for an unlawful cutting from
1. 19 Op. Atty. Gen'l 183.
2. Held not applicable. Bryant v. U. S. 105 Fed. 941, 45 C. C. A. 145 (1901): U. 8.
v. Garretson 42 Fed. 22 (1890); Leatherbury v. U. S. 32 Fed. 780 (1887).
Held applicable. U. S. v. Taylor 35 Fed. 484 (1888). See 4 L D. 1. See Davis
v. State, 80 Miss. 376, 31 So. 742 (Under Miss, act making boxing an offense).
FEDERAL TRESPASS STATUTES 125
other lands reserved or purchased for the use of the United
States.
An act of June 4, 1897, (30 Stat. 11) which constitutes the
fundamental law for the administration of the National
Forests provided that any violation of the act or of the ad-
ministrative regulations which should be made in compli-
ance therewith should be punished under section 5388 of the
Revised Statutes as amended by the act of June 4, 1S88
(25 Stat, 166).
None of the Federal acts contains the words "knowingly,"
"wilfully" or "maliciously." as applicable to the cutting- and
removal of timber from public lands. The word "know-
ingly" was used in the act of March 2, 1831, section 2461 of
the Revised Statutes, the act of June 3, 1878, (20 Stat. 89)
and in section 49 of the act of March 4, 1909 (35 Stat. 1098)
in the provisions imposing penalties for the transportation,
on vessels or railroads, of timber unlawfully cut from public
lands; and the word "wantonly" was used in the act of 1831,
the act of March 3, 1S59 (11 Stat. 408) sections 2461 and
5388 of the Revised Statutes, sections 49 and 50 of the act of
March 4, 1909, (35 Stat. 1098) and section 6 of the act of
June 25, 1910 (36 Stat. 857) in the clauses of these acts
which prohibited a destruction of trees. The word "know-
ingly" was also used in the act of June 4, 1906 (34 Stat. 208)
and section 51 of the act of March 4, 1909 (35 Stat. 1098) in
defining the liability of one who should encourage or aid in
the boxing of trees or the disposition of the product of such
unlawful boxing.
It is because 1 of the omission of qualifying words requiring
a specific intent to violate the statute that the Federal law
appears not to have been enforced as strictly as state
statutes. No intent to violate the statutes need be shown
in a prosecution for the cutting of timber under those clauses
of the statutes which make no mention of intent; 1 but the
provisions in the statutes regarding the cutting or removing
of timber for exportation or disposal have been limited by
words requiring a specific intent. Where the prosecution
is for an act involving an intent to export or otherwise dis-
1. U. S. v. Reder, 09 Fed. 905; U. S. v. Murphy, :5l> Fed. :570.
But soo U. S. v. Oartou 125 Fed. Cas. No. 14, 919, McLean 40 (where there was
an honest mistake as to the land).
126 INJURY TO TREES AS A CRIME
pose of the timber, the indictment or information must
allege and the government must prove the intent necessary
to the establishment of the unlawful act. * The only in-
tent which must be proven under these acts is the intent
to export or dispose of the timber contrary to the statute. 2
Although the act of March 2, 1831, which formed the basis
of section 2461 of the Revised Statutes of 1878 afforded a
special protection to live oak and red cedar on lands re-
served by the United States for naval purposes, it also im-
posed penalties for the cutting and removal of other species
from either the naval reserves or other public lands. 3 The
offenses of cutting and of removal have been held distinct. 4
A criminal liability arising under such an act may be com-
promised by the Secretary of the Treasury upon the recom-
mendation of the Solicitor of the Treasury. 5
In an indictment charging the defendant with a violation
of the Federal statute prohibiting the unlawful cutting or
removal of timber from public lands of the United States,
it is not necessary to recite that the defendant committed
the act "knowingly" 6 or "unlawfully," 7 to describe par-
ticularly each kind of timber cut, 8 to show the use made of
the timber, 9 or to allege that the cutting was not justified
under any law of the United States 10 However, an indict-
ment must allege a cutting upon lands of the United States,
describe the lands on which the alleged cutting was done by
1. TJ. S. v. Hacker, 73 Fed. 292 (1896) under sec. 4, Act of June 3, 1878; U. S.v.Gar-
retson, 42 Fed. 22 (1890). Under se:. 5388, U. S. R. S. (Boxing trees.) U. S. v.
Leatherbury, 32 Fed. 780 (1887). Under sec. 2461, U. S. R. S. (Boxing trees).
2. U. S., v. Teller 113 Fed. 273, 51 C. C. A. 230.
3. U. S., v. Shiver 159 U. S. 491, 16 S. Ct. 54, 40 L. Ed. 231.
U. S. v. Briggs, 9 Howard (U. S.) 351, 13 L. Ed. 170.
Teller v. U. 8., 113 Fed. 273, 51 C. C. A. 230; U. S. v. Stone, 49 Fed. 848.
U. S. v. Stores, 14 Fed. 824, 4 Woods 641 ; U. S. v. Smith, 11 Fed. 487, 8 Sawy. 100.
U. S. v. Schuler, 27 Fed. Cas. No. 16234, 6 McLean 28.
U. S. v. Redy, 27 Fed. Cas. No. 16133, 5 McLean 358.
Ely v. U. S., 3 Fed. Cas. N . 1581, 4 Dill 464.
U. S. v. Soto, 7 Ariz. 230, 64 Pac. 419.
19 Opin. Atty. Gen'l, 381.
4. U. S. v. Schuler, 27 Fed. Cas. No. 16234, 6 McLean 28.
5. Sec. 3469. U. S. Rev. St. 1878.
But see letter Nov. 15, 1886, Sec'y Interior to Sec'y Treasury, 5 L. D. 240.
And see Attorney General's instructions to U. S. Marshals, Attorneys, Clerks, and
Commissi ners, issued June 1, 1916, paragraph 740.
6. U. S. v. Schuler 27 Fed. Cas. No. 16234, 6 McLean 28.
7. U. S. v. Thompson 28 Fed. Cas. No. 16,490, 6 McLean 56.
8. U. S. v. Redy 27 Fed. Cas. No. 16, 133, 5 McLean 358.
9. U. S. v. Stone 49 Fed. 848.
10. U. S. v. Stone 49 F d. 848.
FIRING OF FEDERAL LANDS FORBIDDEN 127
township, range, section or quarter-section, l and specify
the kind of timber 2 cut with sufficient precision to show
clearly to the defendant the offense with which he is charged.
Although it is sufficient to allege the cutting of a particular
species and to allege the cutting of "other timber" in the
words of the statute 3 provided the proof correspond; proof
that one species was cut when the charge was limited to
another species will not support a conviction. 4 An un-
lawful intention is essential to the commission of a crime,
but from proof of an unlawful act an unlawful intention will
be inferred. 5 Ignorance of the law will not constitute a
defense, 6 but the defendant may avoid conviction under a
criminal statute by showing ignorance or mistake as to the
land on which the cutting was done, 7 and only a nominal
fine should be imposed where full reparation is made and
there is no proof of a fraudulent intention. s It has been
held that if the defendant shows an entry of land under a law
giving him a right to cut, the burden is upon the government
to prove the cutting to be unlawful; 9 However, where a
defendant alleged that the cutting of timber was done under
a license, the United States Supreme Court has held the
burden of proof to be upon him to show that the cutting was
justified. 10 It has been held that an information drawn to
conform to the requirements of one statute for the prosecu-
tion of a timber trespass case may be treated as if drawn
under another statute, if it contains all averments necessary
to the establishment of an offense under the latter statute. n
101. Federal Statutes Regarding the Firing of Pub-
lic Lands. The first Federal Act making it a specific
offense to fire the woods was an act of February 24, 1897
(29 Stat. L. 594). This act imposed a line of not over
1. U. S. v. Thompson 2S Fed. ("as. No. KII'.K), f. McLean 50.
U. S. v. Schuler 27 Fed. Cas. No. 1<>234, (> McLean 28.
2. U. S. v. Redy 27 Fed. ('as. No. 161:5 ', 5 McLean 3.~>x.
3. U. S. v. Redy 27 Fed. Cas. No. HH33, 5 McLean 35 .
4. U. S. v. Darton 25 Fed. Oas. No. 14919, (i McLean 1(1.
5. Ibid. ; U. S. v. Niemeyer 94 Fed. 147; U. S. v. Teller 1 115 Fed. 27:5, 51 ('. C. A. 230.
(i. U. S. v. Murphy 32 Fed. 370.
7. U. S. v. Darton 25 Fed. Cas. No. 14919, (> McLean 40.
8. U. S. v. Murray 27 Fed. Cas. No. 15S43, 5 McLean 207.
9. U. S. v. Rou ledge S N. Mcx. 385, 45 Pac. 883.
10. U. S. v. Denver Etc. R. Co. 191 U. S. 84, 4S L. Ed. 100. cf. U. S. v. Bitter Root
Etc. Co. 200 U. S., 451, 50 L. Ed. 550.
11. Stubbs v. U. S. Ill Fed. 3GG, 49 C. C. A. 392, 104 Fed. 988, 44 C. C. A. 292.
128 INJURY TO TREES AS A CRIME
$5,000, or imprisonment for not over two years, or both
such fine and imprisonment, for the offense of wilfully and
maliciously setting a fire or carelessly or negligently leaving
one to burn unattended near any timber, underbrush, grass
or other inflammable material upon the public domain of the
United States. The act also fixed a fine of not ever $1,000
or imprisonment for not over one year, or both fine and im-
prisonment, for the offense of building a camp fire or other
fire in or near any forest, timber, or other inflammable ma-
terial upon the public domain and failing to totally extin-
guish the same before leaving it. On May 5, 1900 (31 Stat.
L., 169) this act was amended by omitting the words "care-
lessly or negligently" from section one and the specific ref-
erence to camp fires from section two. In the act of March
4, 1909 (35 Stat. L., 1088, 1098) codifying and amending
the penal laws of the United States, the provisions of the
act of May 5, 1900, were reenacted in sections 52 and 53,
with the omission of the word "maliciously" from the first
section. By section 6 of an act of June 25, 1910 (36 Stat.
L., 855, 857), section 53 of the act of March 4, 1909, was
amended so as to make its penalties applicable to the leaving
of fires on Indian tribal lands or on Indian allotments while
the same were held under restricted or trust patents.
Numerous successful prosecutions have been made under
the Federal law, mostly in the United States District Courts;
but few, if any, of these cases have been reported and thus
citations to decisions are not available.
CHAPTER X
CONTRACTS REGARDING GROWING TIMBER
102. The Fundamental Principles of the Law of
Contracts. The essentials of every valid contract under
the English system of jurisprudence are:
1. A definite offer and an unconditional accept-
ance.
2. Formal evidence of the agreement, such as a
written agreement attested by a seal; or a con-
sideration for the agreement, which may con-
sist of some benefit to the promisor or some loss
to the promisee.
3. Legal capacity of the parties to assume con-
tractual obligations, such as the attainment of
legal age and the possession of sound mind.
4. Freedom of the agreement from vitiating ele-
ments, such as mistake, misrepresentation,
fraud, duress or undue influence.
5. The contemplation of a result that is not for-
bidden by the common law or by statute and is
not contrary to the general policy of English
law, or that does not seek the accomplishment
of a legal purpose in an illegal manner.
An offer or its acceptance may be communicated either
by words or by conduct, and the offer must be made with
the intention of creating legal relations. An offer may be
revoked by the one making it any time before acceptance
by proper notice to the other party, and will be revoked by
the death of either party, or by the lapse of a reasonable
time where no limit for acceptance is set. Where an act or a
benefit, in consideration of which a promise is made, is per-
formed or made effective at the time of the promise, the
agreement is known as an executed contract. Where a
promise by one party is given in consideration of a promise
129
130 CONTRACTS REGARDING GROWING TIMBER
by the other party, the agreement is known as an executory
contract.
A contract may be voidable because both parties were mis-
taken as to the subject matter of the contract (mutual mis-
take), or because one party had one subject matter in mind
while the otjier had another. Misrepresentation may arise
from innocent statement or the innocent withholding of
facts by one party which has led the other party to a mis-
understanding as to the subject matter of the contract.
If one party has intentionaUy misrepresented the facts
with the purpose of deceiving the other party, a contract
may be avoided on the ground of fraud, if the misrepresenta-
tions were material and the other party was actually misled
by them. A contract may be avoided on the ground of
duress, if the promise or act of one party was extorted from
him by threatened personal violence. If one of the parties
is not, in the view of the law, moraUy capable of entering
into contract, from either a permanent or a temporary dis-
ability, a contract may be avoided on the ground of undue
influence. A contract may be. entirely void because its
object is illegal.
A contract may be discharged by mutual agreement be-
fore performance is completed. It is discharged when fully
performed by both parties. One or both parties may be
relieved from full performance because conditions have be-
come such as to make performance impossible, such as a
state of war. A contract may be discharged by operation
of law. If not relieved from performance because of any
one of the four conditions enumerated, a party to a contract
who fails to perform will be liable for damages in a legal
action brought by the other party.
Contracts for the sale of timberland l and standing tim-
1. Ark. Klopple v. Wagonstock Co. 1488. W. 75; Cf. Conway v. Coursey, 110
Ark. 557, 161 S. W. 1030 (rental of land for clearing does not give right
to sell timber) .
Colo. Lumber Co. v. Inv. Co.. 55 Colo. 271, 133 Pac. 1112.
Ga. Gaskins v. Green, 141 Ga. 552, 81 S. E. 882; Pine Co. v. Stores Co., 140 Ga.
323, 78 S. E. 901.
Ky. Hicks v. Phillips, 148 Ky. 670, 147 S. W. 42.
La. R. R. Co. v. Lbr. Co. 59 So. 403; Rogers v. Lbr. Co. 129 La. 40, 55 So.
702.
Me. Blood v. Drummond, 67 Me. 476.
N. C. Warick v. Taylor, 163 N. C. 68, 79 S. E. 286.
Hairing v. Lbr. Co., 163 N. C. 481, 79 S. E. 876.
Veneer Co. v. Anze, 165 N. C. 54, 80 S. E. 886.
(Footnote 1 continued on next page)
FUNDAMENTAL PRINCIPLES 131
ber l are governed by the same rules of law as other sales of
(Footnote 1 concluded from the preceding page)
Mfg. Co. v. Thoma , 167 N. C. 109, 83 S. E. 174.
Gilbert v. Shingle Co., 167 N. C, 286, 83 S. E. 337.
Simmons v. Groom, 167 N. C. 271, 83 S. E. 471.
Finger v. Goode, 85 S. E. 137.
Banger v. Lbr. Co., 86 S. E. 516.
Taylor v. Munger, 86 S. E. 626.
N. Y. Hersey v. Fisher, 90 N. Y. 647.
Pa. Lacy v. Green, 84 Pa. St. 51 .
S. C. Lbr. Co. v. Hodges, 96 S. C. 140, 79 S. E. 1096. Timber Co. v. Prettyman,
97 S. C. 247, 81 S. E. 484. Keenan v. Matthews, 98 S. C. 226, 82 S. E.
431.
Glover v. Smith, 1 Dessaus. 433.
Va. Hartley v. Neaves, 84 S. E. 97. See Jolliffe Etc. v. Hite Etc., 1 Call 301
(cf. 1 Call 316, 5 Call 9; 6 Call 218; 2 Hen. & Munf. 173; 2 Rand. 67);
Duvals v. Ross, 2 Munf. 290, 2 Hen. & Munf. 164; Hull v. Cunningham
Exrs., 1 Munf. 330; Bierne v. Er kine, 5 Leigh 59, 64; Blessings Admn'rs
V. Beatty, 1 Rob.
Wash Healey v. Tract Co., 78 Wash. 628, 139 Pac. 609.
W.Va. Pardee v. Crane, 74 W. Va. 359, 82 S. E. 340; MetaUiurgical Co. v. Mont-
gomery, 74 S. E. 994 (Lease of land with lumbering rights) .
U. S. See Jennison v. Leonard, 21 Wall, 302, 22 L. Ed. 539; Gillen v. Powe, 219
Fed. 553; Rexford v. Woodland Co., 208 Fed. 295.
Eng. Hill v. Buckley, 17 Ves. 394, 401.
1. Ala. Shepard v. Lbr. Co., 68 So. 880; Lbr. Co. v. Shepard, 180 Ala. 148, 60 So.
825; Wheeler v. Cleveland, 54 "So. 277; Ackley v. Lbr. Co., 166
Ala., 295, 51 So. 964; Stevenson v. Davis, 163 Ala. 562, 50 So. 1023;
Davis v. Lbr. Co., 151 Ala. 580, 44 So. 629. See Cooperage Co. v. Car-
ter, 2 Ala. App. 367, 57, So. 60.
Ark. Fleischer v. McGehee, 111 Ark. 626, 163 S. W. 169 (mutual mistake,) Lbr.
Co. v. Sheppard 143 S. W. 100); Griffith v. Tie Co., 109 Ark. 223, 159
S. W. 218; Wallace v. Meeks, 138 S. W. 638; Davis v. Spann, 92 Ark.
213, 122 S. W. 495; Sidle v. Mfg. Co., 91 Ark. 299, 121 S. W. 349;
Wood v. Kelsey, 90 Ark. 272, 119 S. W. 258; Lbr. Co. v. Pretorius, 82
Ark. 347, 101 . W. 733.
Gal. Ciapusci v. Clark, 12 Cal. App. 44, 106 Pac. 436.
Fla. Land Co. v. Parker, 64 Fla. 371, 59 So. 962; Stores Co. v. Houck, 64 Fla.
242, 59 So. 962; Florida Assoc. v. Stevens, 61 Fla. 598, 55 So. 981;
Land Co. v. Adams, 54 Fla. 550, 45 So. 492; Richbourg v ; Rose, 53
Fla. 173, 44 So. 69. See Fletcher v. Moriarity 62 Fla. 482, 56 So. 437.
Ga. Jones v.' Graham, 141 Ga. 60, 80 S. E. 7; Shaw v. Lbr. Co., 141 Ga. 47,
80 S. E. 322; Walters v. Hertz, 135 Ga. 814, 70 S. E. 343; King v. Tur-
pentine Co., 134 Ga. 496, 68 S. E. 73.
Ida. Page v. Bradford- Kennedy Co., 19 Ida. 685, 115 Pac. 694.
111. Walker v. Johnstone, 116 111. App. 145.
Iowa Baker v. Kenney, 145 la. 638, 124 N. W. 901.
Ky. Murray v. Voyd, 165 Ky. 625, 177 S. W. 468; Veneer Co. v. Arnold, 161
Ky. 736, 171 S. W. 403; Prowse v. Henderson, 155 Ky. 317, 159 S. W.
808; Bach v. Little, 140 Ky. 396, 131 S. W. 172; Risner v. Dunn, 122
S. W. 203; Rowe v. Charles, 121 S. W. 697; Mills v. Stillwell, 89 S. W.
112, 28 Ky. L. Rep. 204.
La. Stave Co. v. Lbr. Co., 135 La. 232, 65 So. 226; Planting Co. v. Cypress Co..
134 La. 682, 64 So. 677; Banks v. Lbr. Co., 133 La. 282, 62 So. 907; Lbr.
Co. v. Lbr. Co., 135 La. 421, 65 So. 596; Blanks v. Lephiew, 132 La. 545.
61 So. 615; Smith v. Lbr. Co., 55 So. 698; Hyde v. Barron, 125 La. 227,
51 So. 126; Smith v. Lbr. Co. 123 La. 959, 49 So. 655; Sanders v. Schill-
ing, 123 La. 1009, 49 So. 689; Shepard v. Lbr. Co.. 121 La. 1011, 46 So.
999; Blackshear v. Hood, 120 La. 966, 45 So. 957. See D'Estrampes v.
Lbr. Co 130 La. 926, 58 So. 817.
Me. Brown v. Bishop, 105 Me. 272, 74 Atl. 724; Blood v. Drummond, 67 Me.
476.
4Footnote 1 continued on next page)
132 CONTRACTS REGARDING GROWING TIMBER
chattels or of interests in land, but such contracts will be
construed with due regard for special customs obtaining in
contracts for property of this character.
103. Misrepresentations at the time of Sale of
Timber or Timberland. Any material false representa-
tion as to the amount of land included in a tract or as to the
amount and quality of the timber will, if relied upon by the
purchaser, support a rescission of the contract by him
whether the representations were made fraudulently or with
(Footnote 1 concluded from preceding page)
Mich. Iron Co. v. Nester, 147 Mich. 599, 111 N. W. 177; Balderson v. Seeley,
160 Mich. 186, 125 N. W. 37.
Minn. Lbr. Co. v. Land Co., 126 Minn. 176, 148 N. W. 43.
Miss. Lbr. Co. v. Britton, 105 Miss. 592, 62 So. 648; McVeay v. Rich, 102 Miss.
552, 59 So. 842; Bomer v. Canaday, 79 Miss. 222. See Davis v. Bel-
lows, 99 Miss. 838. 56 So. 817.
Mo. Moss v. Hunter, 188 Mo. App. 391, 174 S. W. 212; Teachout v. Clough.
143 Mo. App. 474, 127 S. W. 672.
N. H. Paper Co. v. Miles, 75 N. H. 150, 71 Atl. 626.
N. Y. Arnold v. Spring, 135 N. Y. Suppl. 314; P. v. Cooperage Co. 147 App. Div.
267,131 N. Y. Suppl. 952; Bryant v. Turner, 126 N. Y. App. Div. 598,
110 N. Y. Suppl. 594; Turner v. Bissell, 69 Misc. 167, 126 N. Y. Suppl.
234; Hersey v. Fisher, 90 N. Y. 647.
N. C. Timber Co. v. Lbr. Co., 168 N. C. 454, 84 S. E. 765; Shammonhouse v.
McMullan, 168 N. C. 239, 84 S. E. 259; Williams v. Parsons, 167 N. C.
529, 83 S. E. 914; Ward v. Albertson, 165 N. C. 218, 81 S. E. 68; Lbr.
Co. v. Riley, 163 N. C. 254, 79 S. E. 605; Byrd v. Sexton, 161 N. C. 569,
77 S. E. 697; Dameron v. Lbr. Co., 161 N. C. 495, 77 S. E. 694; Pitts v.
Curtis, 152 N. C. 615, 68 S. E. 189; Woodbury v. King, 152 N. C. 676.
68 S. E. 221; Timber Co. v. Wilson. 151 N. C. 154, 65 S. E. 932; Paddock
v. Davenport, 106 N. C. 710, 12 S. E. 464. See Daniels v. R. Co. 158
N. C. 418, 74 S. E. 331; Burwell v. Chapman, 74 S. E. 635.
Ore. Roots v. Lbr. Co., 50 Ore. 298, 92 Pac. 811, 94 Pac. 182; Lbr. Co. v. Roots,
49 Ore. 569, 90 Pac. 487.
Pa. Lacy v. Green, 84 Pa. St. 514.
S. C. Ellerbee v. Lbr. Co., 99 S. C. 158, 82 S. E. 1049; Rush v. Hilton, 83 S. C.
444, 65 S. E. 525; Crawford v. Lbr. Co., 79 S. C. 166, 60 S. E. 445.
Tex. Lbr. Co. v. Ball (Civ. App.) 177 S. W. 226; Bank v. Warner (Civ. App.)
176 S. W. 863; Waugh v. Henderson (Civ. App.) 159 S. W. 893; Lbr. Co.
v. Fall (Civ. App.) 157 S. W. 209; Adams v. Hughes, C. Ap. 140 S. W.
1163.
Vt. See McLean v. Light, etc., Co. 81 Atl. 613.
Va. Mfg. Co. v. Allen, 85 S. E. 568; Smith v. Ramsey, 116 Va. 530, 82 S. E. 189;
Furniture Co. v. Rhea, 114 Va. 271, 76 S. E. 330; Briggs v. Watkins, 70
S. E. 55 (Mutual mistake).
Wash. Miller v. Hamberg, 79 Wash. 144, 139 Pac. 1085; Heybrook v. Beard, 75
Wash. 646. 135 Pac. 626; Tacoma Mill Co. v. Perry, 40 Wash. 44, 82
Pac. 140.
W. Va.Coal Etc. Co. v. Harrison, 71 W. Va. 217, 76 S. E. 346, 47 L. R. A. N. S.
870.
Wis. Bunn v. Lbr. Co. 51 Wis. 376, 8 N. W. 232.
U. S. Wilson v. Seybolt, 216 Fed. 975; Trust Co. v. Lbr. Co., 212 Fed. 229; Lbr.
Co. v. Long. 182 Fed. 82; Chapman v. Lbr. Co.. 169 Fed. 81, 94 C. C. A.
452; Lbr. Co. v. O'Neal, 160 Fed. 596.
Can. Paper Co. v. Baptist, 41 Can. S. Ct. 105.
Eng. Leigh v. Heald, 1 B. and Ad. 622, 9 L. J. Q. B. O. S. 98, 20 E. C. L. 622
109. Eng. Rep. 918
MISREPRESENTATIONS 133
out any purpose to deceive. l If the purchaser examined
the tract himself or relied upon information obtained from
third persons rather than upon representations of the
vendor, he cannot ordinarily rescind the contract; 2 but
rescission was allowed in a Pennsylvania case, involving the
purchase of a thousand-acre tract, in which the vendee had
himself examined the land, where it was shown that in such
examination he had relied upon the guidance of an agent of
the vendor who had been instructed to show the vendee only
the best of the timber. 3 The right to set up misrepresenta-
tion as ground for avoidance of a contract may be waived
by dealings with the other party subsequent to a knowledge
of the misrepresentation. 4 Only when the representation
as to the amount of timber on the land is clear and explicit
will it be construed as a warranty, 5 but if the warranty is
established, timber on the tract so situated that it cannot be
logged will not be considered in the enforcement of the
warranty. 6 Warranty of title or quality will not be implied. 7
1. Ark. See Fleischer v. McGehee, 111 Ark. 626, 163 S. W. 169.
Ga. Martin v. Peddy, 120 Ga. 1079, 48 S. E. 420 (Deficiency in acreage appor-
tioned in price under Ga. Civ. Code); Harwell v. Martin, 115 Ga. 156,
41 S. E. 686; Lbr. Co. v. Cowart, 136 Ga. 739, 72 S. E. 37 (deficiency
in acreage, plea of fraud).
Ky. Barnes v. Ewell, 155 Ky. 393, 169 S. W. 953; Chess Etc. Co. v. Simpson,
82 S. W. 601, 26 Ky. L. Rep. 893.
La. Ash v. Hale, 68 So. 389; See Rogers v. Lbr. Co., 55 So. 702; Moore v. OBan-
non, 126 La. 161, 52 So. 253.
Me. Hammatt v. Emerson, 27 Me. 308, 46 Am. Dec. 598.
Mass. Prescott v. Wright 4 Gray 461.
Mich. Jones v. Wing, . . Harr. 301.
Ore. Copeland v. Tweedle, 122 Pac.. 302.
Pa. Blygh v. Samson, 137 Pa. 363; 28 Atl. 996, 27 W. N . N. C 390.
S. C. See Marthinson v. McCutcheon, 84 S. C. 256, 66 S. E. 120.
Tex. Warner v. Munsheimer, 2 Tex. Civ. App., Sec. 393.
Va. Shoemaker v. Cake, 83 Va. 1, 1 S. E. 387.
Wis. Danforth v. Wharton 41 Wis. 191; Miner v. Medbury, 6 Wis. 295.
U. S. Trust Co. v. Lbr. Co., 212 Fed. 229; Daniel v. Mitchell, 6 Fed. Cas. No.
3,562, 1 Story 172.
Can. Woodward v. Lants, 44 N. S. 221.
2. Ga. Harwell v. Martin, 115 Ga. 156, 41 S. E. 686.
La. Ash v. Hale, 68 So. 389.
Tex. Huber v. Hill, 130 S. W. 219; Garrett v. Burleson, 25 Tex. Suppl. 41 .
U. S. See Trust Co. v. Lbr. Co., 212 Fed. 229.
Can. Woodward v. Lants, 44 N. S. 221.
3. Brotherton v. Reynolds, 164 Pa. St. 134, 30 Atl. 234.
4. Wylie v. Gamble, 95 Mich. 564, .55 N. W. 377; Waugh v. Hudson, (Tex. Civ. App.)
159 S. W. 893.
5. Mahaffey v. Ferguson, 156 Pa. St. 156, 27 Atl. 21 ; Hammatt v. Emerson, 27 Me.
308, 46 Am. Dec. 598. See Hardison v. Dunn, 159 N. C. 579, 75 S. E. 940.
6. Anderson v. Northern National Bank, 98 Mich. 543, 57 N. W. 808. Cf. Craw-
ford v. Lbr. Co., 79 S. C. 166, 60 S. E. 445. Contra Swift v. David. 16 B. C. 275.
And tee Lbr. v. Middleby, 194 Fed. 817, 114 C. C. A. 521.
7. Ala. Johnson v. Curry, 134 Ga. 583, 68 S. E. 298.
(Footnote 7 continued on next page)
134 CONTRACTS REGARDING GROWING TIMBER
104. Trees May be Constructively Severed. As has
been before stated (*), standing or growing trees have uni-
versally been held to constitute a part of the land upon
which they have grown. The presumption that trees
which are physically connected with the soil through their
roots are a part of the land and pass to the heir or with a
conveyance of the title to the land l is not conclusive; and
growing trees may in law be constructively severed from the
land so that the legal transfer of the title to the land will not
operate as a transfer of the title to the trees standing upon
the land. 2 This separation of the ownership of the growing
trees from the ownership of the soil which supports and
nourishes them may be effected through a grant of the trees
separate from the land 3 or through a sale of the land with a
reservation of the trees. 4 A deed with covenants of war-
(Footnote 7 concluded from preceding page)
Ind. Hege v. New on, 96 Ind. 426.
Miss. Plantation Co. v. Heading Co., 104 Miss. 131, 61 So. 166 (express war-
ranty of title.)
N. J. Slocum v. Seymour, 36 N. J. L. 138, 13 Am. Rep. 432.
N. C. Zimmerman v. Lynch, 130 N. C. 61, 40 S. E. 841.
Tex. Cf. Richburg v. Patten, 46 Tex. Civ. App. 83, 101 S. W. 836 (no title in
seller.)
Wis. Van Doren v. Fenton, 125 Wis. 147, 103 N. W. 228.
U. S. Land Co. v. Wheeler, 189 Fed. 321 (express warranty).
*See citations, Note 5. page 20.
1. Kittredge v. Woods, 3 N. H. 503; Nursery Trees: Maples v. Milton, 31 Conn. 598;
Smith v. Price, 39 111. 28, 89 Am. Dec. 284; Adams v. Beadle, 47 Iowa 439, 29
Am. Rep. 487; Liford's Case, 11 Coke 48; BUlingsby v. Hercy, Moore, K. B. 831.
2. Warren v. Leland, 2 Barb. (N. Y.) 613; Nelson v. Nelson, 6 Gray (Mass.) 385
(1856); New York etc. Iron Co. v. Green County Iron Co., 11 Heisk. (Tenn.)
434; Haskell v. Ayres, 35 Mich. 89; Kingsley v. Holbrook, 45 N. H. 313, 86
Am. Dec. 173; White v. Foster, 102 Mass. 375; Donworth v. Sawyer, 94 Me. 242.
Kendall v. Lumber Co. (Ark.) 64 S. W. 220. (Recording constructive notice to
all).
3. White v. Foster, 102 Mass. 375; Clap v. Drape-, 4 Ma s. 266, 3 Am. Dec. 215;
Hays v. McLin, 115 Ky. 39, 72 S. W. 339, 24 Ky. L. Rep. 1827; Irons v. Webb,
41 N. J. L. 203, 32 Am. Rep. 193; Hoit v. Stratum Mills, 54 N. H. 109, 20 Am.
Rep. 119; Peterson v. Gibbs, 147 Cal. 1, 81 Pac. 121, 109 Am. St. Rep. 107;
Haskell v. Ayres, 35 Mich. 89; McCoy v. Herbert, 9 Leigh (Va.) 548.
A sale of standing timber to be cut and removed at a specified rate per cord or
thousand feet vests in the purchaser the exclusive title to the timber.
Dexter v. Lothrop 136 Pa. St. 565, 20 Atl. 545; Hays v. McLin 115 Ky. 39. cf.
Wheeler v. Carpenter 107 Pa. St. 271.
4. Ala. Lumber Co. v. Austin, 162 Ala. 110, 49 So. 875; Heflin v. Bingham. 56 Ala.
566, 28 Am. Rep. 776.
Me. Stft>ut v. Harper, 72 Me. 270; Goodwin v. Hubbard, 47 Me. 595; Howard v.
Lincoln, 13 Me. 122.
Mass. Hill v. Cutting, 107 Mass. 596; Reed v. Merrifleld, 10 Mete. 155; Putnam v.
Tuttle, 10 Gray 48.
Mich. Clifton v. Jackson Iron Co., 74 Mich. 183 (1889); Haskell v. Ayres, 35
Mich. 89.
N C. Robinson v. Gee, 4 Ired L. (26 N. C.) 186; Bond v. Cashie etc. R. Co., 127
N. C. 125.
(Footnote 4 continued on next page)
CONSTRUCTIVE SEVERANCE OF TREES 135
ranty and a provision for removal within a certain time,
which conveys an interest in land, l should be distinguished
from a grant to one, his heirs and assigns of all standing tim-
ber on a certain tract with the right to remove it at any
time, 2 or within a specified time. 3
There is a disagreement in the decisions of American
courts as to whether trees that have been constructively
severed by a grant or a reservation in a deed become chattels
personal 4 or still retain the character of realty with which
they were invested while legally attached to the land. 5 If
the contract does not designate the trees or make provision
for the definite determination of what trees are meant the
title to the trees will not pass, 6 but if it provides for the sale
of a definite number of trees to be chosen by the purchaser
the title passes at once and the trees are identified as soon
as they are selected. 7 It has been held in different juris-
dictions that the words "all merchantable timber" of cer-
tain species on a tract of land are definite enough to pass
(Footnote 4 con eluded from preceding page)
Pa. Wheeler v. Carpenter, 107 Pa. St. 271 ; Saltonstall v. Little, 90 Pa. St. 422,
35 Am. Rep. 683; McClintock's Appeal, 71 Pa. St. 365.
Knotts v. Hydrick, 12 Rich. L. 314.
Billingsby v. Butler, Hob. 173; Herlakenden's Case, 4 Co. 63b.
But right to timber may be lost after expiration of time named or reasonable time.
Ky. Morris v. Sanders (Ky. 1897) 43 S. W. Rep. 733.
Mass. Perkins v. Stockwell, 131 Mass. 529; Murray v. Norfolk Co., 149 Mass.
328.
Mich. Monroe v. Bowen, 26 Mich. 523; Richards v. To/er, 27 Mich. 451.
N. Y. Inderlied v. Whaley, 65 Hun. 407; Cf. Gregg v. Birdsall, 53 Barb. 402.
Pa. Saltonstall v. Little, 90 Pa. St. 422, 35 Am. Rep. 683.
S. C. Knotts v. Hydrick, 12 Rich. L. (S. C.) 314.
Wis. Rich v. Zeilsdorff, 22 Wis. 544, 99 Am. Dec. 81 ; Martin v. Gilson, 37 Wis.
360.
1. White v. Foster, 102 Mass. 375.
2. Baker v. Kenney, 145 Iowa 638, 124 N. W. 901 ; Clap v. Draper, 4 Mass. 266, 3 Am.
Dec. 215; See Goodyear v. Vosburgh, 57 Barb. (N. Y.) 243.
3. Carter v. Clark and Boice Lumber Co., 149 S. W. Rep. 278 (1913).
4. Haired v. Mason, (Ala.) 54 So. 105,; Lee v. Hotard, 122 La. 850, 48 So. 286.
Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173; Sterling v. Baldwin, 42 Vt.
306; Archer Lumber Co. v. Cornett, 22 Ky. L. Rep. 569, 58 S. W. 438; Hays v.
McLin, 115 Ky. 39; Baker v. Jordan, 3 Ohio St. 438; Haskell v. Ayres, 35 Mich.
89. See Bacon Abr. Executors (H) 3; 1 Wm's Ex'rs (9th Ed.) 620; Toller, Law
of Ex'rs 194; Wentworth, Office of Ex'rs (14 Ed.) 148; Stukeley v. Butler, Ho-
bart 173, 300.
5. Slocum v. Seymour, 36 N. J. L. 138; White v. Foster, 102 Mass. 375; See Mc-
Clintock's Appeal, 71 Pa. St. 365; Liford's Case, 11 Co. Rep. 46b, 50a; Goodrich
v. Hathaway, 1 Vt. 485.
6. Moss v. Meshew, 8 Bush. (Ky.) 190.
7. McCoy v. Herbert, 9 Leigh (Va.) 548.
See Clarke v. McNatt, 132 Ga. 610, 64 S. E. 795, 26 L. R. A. N. S. 585, (Title not
to pass till severance, not a sale of interest in land) .
136 CONTRACTS REGARDING GROWING TIMBER
title at once. l It is then only necessary to determine
which trees were actually merchantable and parol evidence
is admissible in the making of this determination.
105. Fallen Trees Sometimes Pass with Land. In
conformity with the rule in the law of fixtures that, where a
thing has been so annexed to land as to become in law a part
thereof, the accidental severance of the same does not change
its legal character from realty to personalty, a Pennsylvania
court held (in 1881) that trees severed from the soil by
the elements do not become personalty until they are cut
into logs or the owner of the land does some act which in-
dicates an intention on his part to treat them as person-
alty. 2 However, an English case, decided subsequently (in
1885), 3 held that a tree severed from the soil by a storm
was personalty. The English rule appears to be that if a
tree still remains so connected with the soil that some new
force would be necessary to effect a separation, it is still
attached and therefore realty; but if the connection of all
important roots with the soil is severed, the tree becomes
personalty even though a part of the roots remain covered
with earth or some small roots or filaments are unbroken. 4
In a Maine case it was held that hemlock timber trees
which had been cut down by the owner of the land for the
purpose of removing the bark, but from which the tops had
not been removed, passed with a conveyance of the land
even though it had been the intention of the owner to cut off
the tops and haul the trees off as logs to be sawed into 1 um-
ber during the ensuing winter. 5 The court expressed the
opinion that the trees would have been personalty if they
had been cut into logs or hewed into timber before the time
of the conveyance of the land. This decision appears to
have rested upon analogous early decisions regarding wind
thrown trees or those holding that trees severed and im-
1. Lee Lbr. Co. v. Hotard, 122 La. 850, 48 So. 286.
Haskell v. Ayres, 35 Mich. 89; Hays v. McLin, 115 Ky. 39; Dorris v. King et al.
(Ch. Div. Tenn. 1899) 54 S. W. 683; See Ayer & Lord Tie Co. v. Davenport, 26
Ky. L. Rep. 115.
2. Leidy v. Proctor, 97 Pa. St. 486. Altemose v. Huf smith 45 Pa. 121.
3. Re Ainslie, 30 Ch. D. 485 (overruling 28 Ch. 89, 92, D. (Dec. 1884). \
4. EweJl's Fixtures, 2d Ed., Callaghan & Co., Chicago, 1905, p. 332.
5. Brackett v. Goddard, 54 Me. 309 (1866) ; See Kittredge v. Woods, 3 N. H. 503 and
2 Kent's Comm. 346. Maine Rev. St. 1903, p. 657 Sec. 1.
FALLEN TREES AS REALTY 137
mediately removed by a trespasser could not form the sub-
ject matter of a prosecution for larceny. 1
106. Special Interests in Trees. A grant of the use
of the timber on a certain tract of land does not convey the
timber itself or the land, 2 nor does a conveyance of the
timber on a certain tract with a right to remove it within a
limited time afford the grantee an exclusive possession of the
land. 3 An estate in inheritance in the timber upon land
separate from the land itself may be created by deed, 4 and
the owner of the estate in timber may maintain an action in
trespass for the breaking of the close. 5 Trees may be
leased separately from the land upon which they stand. 6
In states that consider a sale of standing timber one in-
volving an interest in land, statutes requiring that mort-
gages and other conveyances of personal property shall be
recorded, do not apply to contracts for th.e sale of growing
timber. 7
107. Interests in Land Incident to Timber Owner-
ship. The valid sale of standing trees.apart from the land,
or an effective reservation of them in a sale of the land, car-
ries a right in the soil sufficient for the nourishment of the
trees and the legal right of the purchaser, or the one holding
the reservation, to enter upon the land and remove the
1. Reg. v. Harris, 11 Mod. 113; Altemose v. Hufsmith, 45 Pa. 121; Comfort v. Fulton,
39 Barb. (N. Y.) 56 (1861); Johnson v. State, 100 Ala. 55 (1893); Bonham v.
State, 65 Ala. 456, (1880) ; State v. Thompson, 93 N. C. 537 (1885) ; State v. Fay,
82 N. C. 679 (1880). But See People v. Gaylord, 139 N. Y. App. Div. 814, 124
N. Y. Suppl. 517; Pashley v. Bennett, 108 N. Y. App. Div. 102, 95 N. Y. Suppl.
384; Harberger v. State, 4 Tex. App. 26, 30 Am. Rep. 15 T; Ex parte Wilke, 34
Tex. 155 (1871); Farris v. State, 69 S. W. 140, (Tex. Grim. App. 1902).
2. Clark v. Way, 11 Rich. (S. C.) 621.
3. Reed v. Merrifleld, 10 Mete. (Mass.) 155.
4. Clap v. Draper, 4 Mass. 266; See Goodyear v. Vosburgh, 57 Barb. (N. Y.) 243.
5. Clap v. Draper, 4 Mass. 266; See Goodrich v. Hathaway, 1 Vt. 485; McCoy v.
Herbert, 9 Leigh (Va.) 548.
Camp v. Horton, 131 Ga. 793. 63 S. E. 351.
6. Perkins v. Peterson, 110 Ga. 24; Carter v. Williamson, 106 Ga. 280: See Lbr. Co. v.
Beall, 5 Ga. App. 202, 62 S. E. 1056; Wefel v. Williams, 58 Fla. 538, 50 So. 679
(Deed with reservation of Turpentine Right).
7. Bent v. Hoxie, 90 Wis. 625, 64 N. W. 426 ; Lillie v. Dunbar, 62 Wis. 198, 22 N. W. 467.
But See, Bunn v. Valley Lumber Co., 51 Wis. 376, 8 N. W. 232; Cadle v. Mc-
Lean, 48 Wis. 630, 4 N. W. 755; See also, Mee v. Benedict, 98 Mich. 260. 57
N. W. 175, 39 Am. St. Rep. 543, 22 L. R. A. 641; Fish v. Capwell (R. I.) 29 Atl.
840, 25 L. R. A. 159; McRae v. Still well, 111 Ga. 65; Contra, Warren v. Leland,
2 Barb. (N. Y.) 613; See also, Bowerman v. Taylor, 127 Ky. 812, 106 S. W.
846, 32 Ky. L. Rep. 671 ; Burwell v. Chapman (N. C. ) 74 S. E. 635; Childers v.
Coleman, 122 Term. 109, 118 S. W. 1018; Lumber Co. v. Lowe, 110 Va. 950
(actual notice equivalent to recording.); Paper Co. v. Baptist, 41 Can. S. Ct.
105 (Quebec case); Barnes v .Golding, 11 Ont. W. R. 261.
138 CONTRACTS REGARDING GROWING TIMBER
trees. * If the conveyance is made by deed this right will
be in the nature of an irrevocable easement, 2 but if the sale
be one by parol the privilege of entry is in most jurisdictions
merely a revocable license. 3 The extent of the h'cense or
right will be dependent upon the existing conditions as well
as the specific terms of the contract and may include the
placing of a logging railroad 4 upon the land or the crossing
of cleared lands 5 of the vendee with logging roads. In-
tentional licenses for the removal of timber and the privi-
leges construed as licenses which result from ineffectual at-
tempts to sell timber by parol, have been very common in
American states. 6 Such licenses while unrevoked afford
1. Ala. Yarbrough v. Stewart, 67 So. 989.
Lbr. Co. v. Eisely, 163 Ala. 290, 50 So. 225.
But see Christopher v. Lbr. Co., 57, Ala., 837.
Ark. Earl v. Harris, 137 S. W. 806, Sidle v. Mfg. Co. 91 Ark. 299, 121 S. W. 399.
(Use of stream).
Fla. Cf. Lbr. Co. v. Woods, 67 Fla. 202, 64 So. 741. (Road to other timber.)
Ga. See Lbr. Co. v. Gates, 70 S. E. 672. (May destroy timber in roads.)Lbr. Co.
v. Beall, 5 Ga. App. 202, 62 S. E. 1056.
Ind. Young v. Waggoner (Ind. App.) 98 N. E. 145.
Ky. Shepherd etc. Co. v. Templeman, 143 Ky. 334, 136 S. W. 648.
But see Bates v. Lbr. Co., 130 Ky. 608, 113 S. W. 820, 132 A. S. R. 407.
(Not to injure land.)
Me. Goodwin v. Hubbard, 47 Me. 595.
Mass. Putnam v. Tuttle, 10 Gray 48.
Minn. Pinetree Lbr. Co. v. McKinley 86 N. W. 414 (Way over one tract to
another) .
N. C. Wilson v. Scarboro, 163 N. C. 380, 79 S. E. 811.
S. C. Rush v. Hilton, 83 S. C. 444, 65 S. E. 525.
Tex. See Davis v. Conn, (Civ. App.) 161 S. W. 39 .(Not liable acts 3d. parties.)
Davidson v. Lbr. Co. (Civ. App.) 143 S. W. 700 (not liable for injuries to
land if uses only means covered by contract).
Vt. Cilley v. Bacon, 88 Vt. 496, 93 Atl. 261. (Cut trees for roads etc.)
Wash. Brodack v. Morsbach, 38 Wash. 72, 80 Pac. 275.
U. S. Vosburg Co. v. Watts, 221 Fed. 402. (Not to injure timber reserved ap-
pliances.) See Creek Co. v. Coal etc. Co. 166 Fed. 62, 91 C. C. A. 648.
(Does not include right to sell liquor.)
Eng. Liford's Case, 11 Coke, 46 b.
2. Ky. Louisville Turnpike Co. v. Shadburne, 1 Ky. L. Rep. 325.
Mass. Worthern v. Garno. 82 Mass. 243, 65 N. E. 67; White v. Foster, 102 Mass.
375.
Mich. Wait v. Baldwin, 60 Mich. 622.
Minn. Pine Tree Lbr. Co. v. McKinley. 83 Minn. 419, 86 N. W. 414.
Tenn. GaUoway-Pearse Co. v. Sabin, 130 Tenn. 575, 72 S. W. 292.
3. Armstrong v. Lawson, 73 Ind. 498.
4. Waters v. Greenleaf-Johnson Lumber Co., 115 N. C. 648, 20 S. E. 718.
5. Stephen > v. Gordon, 19 Ont. App. 176.
If trees excepted under lease, landlord may enter to take; Brooks v. Rogers, 101
Ala. Ill; Pomfret v. Ricroft, 1 Saund. 322b; But not if only underwood ex-
cepted, Leigh v. Heald, 1 B & Ad. 622.
6. 111. Faith v. Yocum, 51 111. App. 620.
Ind. Spacy v. Evans, 152 Ind. 431, 52 N. E. 605; Watson v. Adams, 32 Ind. App.
281, 69 N. E. 696.
Iowa Garner v. Mahoney, 115 Iowa 356, 88 N. W. 828.
Me. Pierce v. Ganton, 98 Me. 553, 57 Atl. 889; Folsom v. Moore, 19 Me. 252.
(Footnote 6 continued on next page)
OWNERSHIP OF TIMBER AS AX INTEREST IN LAND 139
a defense against suit for trespass or conversion, l and in
some states the revocation is actionable if done in violation
of an agreement. 2
108. The Application of the Statute of Frauds to Tim-
ber Sales. One of the provisions of the fourth section of the
Statute of Frauds 3 enacted in England in 1676, was to the
effect that 110 action should be brought upon any contract
or sale of an interest in land unless the agreement upon
which the action was brought, or some note or memorandum
thereof, was in writing and signed by the party to be charged.
This statute or similar loc-al statutes apply to such contracts
and sales in every one of the United States. Since growing
trees are considered a part of the land on which they stand
we should expect all American courts to take the position
that no agreement for the sale of standing trees would be en-
forceable unless it were evidenced by writing and duly
signed by the party to be charged. As a matter of fact, this
js the general rule in the United States: 4 and in those states
(Footnote G concluded from preceding rage)
Mass. Driscoll v. Marshall, 15 Gray 62: Whitmarsh v. Walker, 1 Mete. 313.
Mich. Spalding v. Archibald, 52 Mich. 365, 17 X. W. 940, 50 Am. Rep. 253; Wil-
liams v. Flood, G3 Mich. 487, 30 X. W. 93; Greeley v. Stilson, 27 Mich.
153.
Miss. Walton v. Lowrey, 74 Miss. 4S4, 21 So. 243.
X. II. Hodsdon v. Kennett, 73 X. II. 225, GO Atl. 686; Houston v. Laflfee, 46 X. II.
505: Woodbury v. Parshley, 7 X. II. 237, 26 Am. Dec. 739.
X. Y. Bennett v. Seutt, 18 Barb. 347.
Pa. Callen v. Hilty, 14 Pa. St. 286.
S.Dak. Polk v. Carney, 17 S. D. 436, 97 X. W. 360.
Wash Wel'-ver v. Advance Shingle Co., 34 Wash. 331, 75 Pac. 863; Kleeb v. Bard.
7 Wash. 41, 34 Pac. 138.
Wis. Bruley v. Ciarvin, 105 Wis. 6.5, SI X. W. 103S, 48 L. R. A. 839; Keystone
Lumber Co. v. Kolman, 94 Wis. 465, 69 X. W. 165, 59 Am. St. Kip. 905,
34 L. It. A. 821.
Eng. Hewitt v. Isliain, 7 FJxch. 77, 21, L. J. Exeh. 35.
Can. Breckenridge v. Woollier, 8 X. Bruns\v. 303; Xew Brunswick, etc. Land.
Co. v. Kirk, 6 N. Brunsw. 413; Kerr v. Council, 2 N". Brunsw. 133.
1. Whitmarsh v. Walker, 1 Mete. (Mass.) 313; Spalding v. Archibald, 52 Mich. 3G5;
Woodbury v. Parshley, 7 X. 11. 237.
2. Johnson v. Wilkinson, 139 Mass. 3, 29 X. E. 62, 52 Am. Kep. 698; Whitmarsh v.
Walker, 1 Mete. (Mass.) 313. Cf. Davis v. Lbr. Co., 151 Ala. 5SO, 44 So. 629
(written license to cut not revocable.); Martin v. Johnson, 105 Me. 156, 73 Atl.
9G3 (Permittee not entitled to timber cut by trespasser.); Sinnot v. Seoble, 11
Can. S. Ct. 571. (Permit to cut on crown lands not an exclusive grant which
would support action against a later permittee.)
3. 29 Car. II. Ch. 3, Sec. 4.
4. Ala. Gibbs v. Wright, (Ala. App.) 57 So. 258; Heflin v. Bingham, 56 Ala. 566,
28 Am. Kep. 776; Magnetic Ore Co. v. Marbury Lbr. Co., 104 Ala. 465,
53 Am. St. Kep. 73.
Ark. McLeod v. Dial, 63 Ark. 10; Cf. Crane v. Patton, 57 Ark. 340. Cf. Davis v.
Spann, 92 Ark. 213, 122 S. W. 495.
Fla. Jenkins v. Lykes, 19 Fla. 148, 45 Am. Kep. 19.
(Footnote 4 continued on next page)
140 CONTRACTS REGARDING GROWING TIMBER
which require that all conveyances of realty shall be under
seal, it is necessary that a transfer of property in standing
timber be effected by a sealed instrument. x It is also the
(Footnote 4 concluded from preceding page)
Ga. Coody v. Gross Lbr. Co., 82 Ga. 793.
Ind. Spacy v. Evans, 152 Ind. 431; Hostetter v. Auman, 119 Ind. 7; Cool v.
Peters Box etc. Co., 87 Ind. 531; Armstrong v. Lawson, 73 Ind. 498;
Owens v. Lewis, 46 Ind. 488, 15 Am. Rep. 295.
Iowa Garner v. Mahoney, 115 Iowa 356, 88 N. W. 828; Sanders v. Clark, 22
Iowa 275.
Kan. Powers v. Clarkson, 17 Kan. 218.
La. Kemper v. Lumber Co., 134 La. 816, 64 So. 760.
Mich. Williams v. Hyde, 98 Mich. 152; White v. King, 87 Mich. 107; 49 N. W.
518; See Clifton v. Jackson Iron Co., 74 Mich 183; Spalding v. Archi-
bald, 52 Mich. 365, 50 Am. Rep. 253 ; Wetmore v. Neuberger, 44 Mich.
362; Johnson v. Moore, 28 Mich. 3; Greeley v. Stilson, 27 Mich. 153.
Minn. Kileen v. Kennedy, 90 Minn. 414, 97 N. W. 126; Kirkeby v. Erickson, 90
Minn. 299, 96 N. W. 705, 101 Am. St. Rep. 411; Herrick v. Newell, 49
Minn. 198.
Miss. Walton v. Lowrey, 74 Miss. 484, 21 So. 243; Harrell v. Miller, 35 Miss. 700,
72 Am. Dec. 154; But see, Lee v. Hawks, 68 Miss. 669, 9 So. 828, 13
L. R. A. 633.
Mo. Alt v. Grosclose, 61 Mo. App. 409; Cooley v. Kansas City etc. R. Co., 149
Mo. 487.
N. H. Reid v. McQuesten, 61 N. H. 421; Howe v. Batehelder, 49 N. H. 204;
Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173; Ockington v.
Richey, 41 N. H. 275; Olmstead v. Niles, 7 N. H. 522; Putney v. Day, 6
N. H. 430, 25 Am. Dec. 470.
N. J. Slocum v. Seymour, 36 N. J. Law 138, 13 Am. Rep. 432 ; See Hendrickson
v. Ivins, Saxton 562.
N. Y. Thompson v. Poor, 57 Hun. 285; Boyce v. Washburn, 4 Hun. 792; Wood v.
Shults, 4 Hun. 309, 6 Thompjs. & C. 557; Goodyear v. Vosburgh, 57
Barb. 243; Vorebeck v. Roe, 50 Barb. 302; Bennett v. Scutt, 18 Barb.
347; Warren v. Leland, 2 Barb. 613; McGregor v. Brown, 6 Seld. (10
N. Y.) 114; Green v. Armstrong, 1 Denio 550; Mumford v. Whitney, 15
Wend. 380; Dubois v. Kelly, 10 Wend. 496; Pierrepont v. Barnard, 5
Wend. 364; Van Pelt v. McGraw, 4 N. Y. 110; VanElstyne v. Wimple,
5 Cow. 162.
N. C. Drake v. Howell, 133 N. C. 162, 45 S. E. 539; Green v. North Carolina R.
Co., 73 N. C. 524; Cf. Moring v. Ward, 5 Jones L. (50 N. C.) 252.
Ohio Hirth v. Graham, 50 Ohio St. 57, 33 N. E. 90, 40 Am. St. Rep. 641, 19
L. R. A. 721.
v Tenn. Galloway & Pearse Co. v. Sabin, 130 Tenn. 575, 172 S. W. 292; Knox v.
Haralson, 2 Tenn. Ch. 232.
Tex. Gulf etc. R. Co. v. Foster (Tex. Civ. App. 1898), 44 S. W. 198.
Vt. Buck v. Pickwell, 27 Vt. 158; But see, Sterling v. Baldwin, 42 Vt. 306;
Yale v. Seely, 15 Vt. 221; Ellison v. Brigham, 38 Vt. 64.
Va. Smith v. Ramsey, 116 Va. 530. 82 S. E. 189; Stuart v. Pennis, 91 Va. 688.
Wis. Bruley v. Garvin, 105 Wis. 625; Lillie v. Dunbar, 62 Wis. 198; Daniels v.
Bailey, 43 Wis. 566; Strasson v. Montgomery, 32 Wis. 52.
Can. Summers v. Cook, 28 Grant (Ont.) 179; MacDonnell v. McKay, 15 Grant
(Ont.) 391; Kerr v. Connell, Berton, (N.Brunsw.) 151; Murray v. Gil-
bert, 1 Hannay (N. Brunsw.) 548; New Brunswick Land Co. v. Kirk. 1
Allen (N. Brunsw.) 443; Seegee v. Perley, 1 Kerr (N. Brunsw.)439;
McCarty v. Oliver, 14 U. C. C. P. 290; But see, Mclntosh v. McLeod, 18
Nova Scotia 128. 6 Can. L. T. 449.
Eng. Scorell v. Boxwell, 1 Y. & Jerv. 396; Teal v. Auty, 2 B. & B. 101 ; Hewitt v.
Isham, 7 Exch. 77.
1. Turpentine Co. v. Armstrong, 10 Ga. App. 339, 73 G. E. 610; Emerson v.
Shores. 95 Me. 237, 49 Atl. 1051, 85 Am. St. Rep. 404; White v. King, 87
Mich. 107, 49 N. W. 518; Potter v. Everett, 40 Mo. App. 152; Andrews v.
Costican, 30 Mo. App. 29; Goodyear v. Vosburgh, 57 Barb. (N. Y.) 243: Vore-
beck v. Roe, 50 Barb. (N. Y.) 302; Mclntyre v. Barnard, 1 Sandf. Ch. (N. Y.)
52; See also, Fish v. Capwell (R. I.), 29 Atl. 840, 25 L. R. A. 159 Inst. not
ack. or recorded; Contra, Warren v. Leland, 2 Barb. (N. Y.) 613.
THE STATUTE OF FRAUDS 141
general rule that a reservation of standing trees when the
title to the land is transferred to another will be given legal
effect in the courts only on condition that such reservation
is in writing. 1 Some courts have given effect to a parol
reservation of standing trees. -
109 The English Doctrine as to the Statute of Frauds.
In one of the leading English cases 3 there was a parol agree-
ment for the sale of trees then standing, but the trees,
which were sold at a certain rate per foot, were to be cut
down by the vendor and two of the trees had already been
severed at the time of the sale. This was held to lie a sale
of goods and chattels within the seventeenth section of the
Statute of Frauds and not a sale of an interest in land under
the fourth section of the statute. Some later cases in dis-
cussing this leading case laid great stress upon the fact that
the severance there was to be made by the seller, l but it is
now fairly well settled that the question as to whether or not
a contract was intended to pass, or actually did pass, title
will be determined upon other grounds and that the title
may pass even though severance is to be made by the ven-
dee. '
Although widely variant opinions have been expressed in
different American jurisdictions as to the ground upon
1. Ala. Ilcflin v. JJingham, 5fi Ala,. 5(1(1, L'S Am. Kep. 77(1.
Kan. Coekrill v. Downey, 4 Kan. 42(1 (1SI5S).
Me. Howard v. Lincoln, l.'i Mr. 122.
Mass. Clap v. Draper. I Muss. 2(1(1: White \. Foster. 102 Mass. :;75: Spurr v. An-
drew, (1 Allen. 420.
Mich. Dodder v. Snyder. 110 Mich. (l!l, 67 X. W. 1 101 : Wait v. Ualdwiti. (10 Mich.
(122.
Mo. Mcllvume v. Harris, 20 Mo. 457, (14 Am. Dec. I'.Ml.
X. II. Alcutl v. Lakin. : N. II. 507, (1(1 Am. Dec. 7:i'..
N". Y. Wintermute v. Li^ht, 4(1 Uarl). 27s.
X. <'. Klynt v. Conrad, (11 X. C. 11)0, '.>:{ Am. Dee. 5ss.
I'a. McClintock's Appeal. 71 l>a. St.. :!(J5.
N't. Sterling \ . Baldwin. 42 \'t.:i()(i.
Kii. Stanley v. White. 1 1 Kast,. :i:iX: Harrington's Case, x Coke i:iflb.
2. llelfreck l.nmher etc. Co. v. Honaker, 7(1 S. W. :U2. 25 Ky. I.. Kep. 717: K|UM- v.
Sparks. 10 Ind. App. 444: Heavilon v. llea-vilon. 2!> hid. 50!l; Baker v. Jordan.
:> Ohio St. CiS; Backenstoss v. Stahler's Adm'rs. :{:{ I'a. St. 2.~>1. 75 Am. Dee.
592; See Sherman v. Willett, 12 N. Y. 14(1.
Hut see Kimhrel v. Thomas, 13!) Ca. 14(1, 7(1 S. K. 1024: Cullen v. Armstrong, 2()'.t
J-'ed. 704 (Transfer of ri^ht to cut. timber.)
3. Smith v. Snrman, '.I Barn. ,t C. 5(11, 7 L. .1. K. B. ( >. S. 2'.Ki. I M . ,S; K. 455. 17
E. C. L. 25:{.
4. Karl of Falmouth v. Thomas, 1 C. & M. 105.
5. Marshall v. Ureen. 1 C. l>. Div. 40. 15 L. .1. C. I'. 15:!, :{:{ 1..T. Kep. N. S. 404, 24
Wkly. Kep. 175, 1 Win. Saund. :<!)5: Scovcll v. Boxall. 1 Y.& .lerv. :{l)(i; Teal v.
Auty, 2 B. & B. 101 ; See Kills v. Cirubb, :5 I'. C. Q. B. ((). S.) Gil.
142 CONTRACTS REGARDING GROWING TIMBER
which sales of standing timber should be considered either
as sales of interests in land or of goods and chattels, this con-
fusion appears to have resulted not from different theories
as to the character of the property but from divergent
views as to the interpretation to be placed upon the words
and conduct of the parties as indicating their intention.
110. The Rule in Massachusetts, Maine and Con-
necticut. Thus Massachusetts courts hold that if the in-
tention of the parties was to transfer an immediate title to
growing timber with the understanding that the trees are to
remain on the land and derive nourishment therefrom, the
contract is one for the sale of an interest in land and thus
within the fourth section of the statute of frauds ; x but un-
less a contrary intention clearly appears, the courts of that
jurisdiction will construe a parol sale of standing timber as
one which contemplates a transfer of the title after the
trees have been severed. The rule of law in Massachusetts
is that if the contract is not in proper form to convey an in-
terest in land, it must be held to be a mere executory agree-
ment for the sale of future goods, the title to which will pass
only upon the severance of the trees from the soil. 2 The
license which the purchaser has to take the trees may be re-
voked at any time, 3 but the title to all trees actually cut
down before the revocation of the license will be vested in
the vendee 4 and the revocation will constitute a breach of
contract as to trees not yet severed for which the vendor
must respond in an action for damages brought by
the vendee. 5
The Maine rule 6 is substantially the same as that of
Massachusetts, and the Connecticut 7 courts seem to have
adopted the same principles.
1. White v. Foster, 102 Mass. 375.
2. Drake v. Wells, 11 Allen (Mass.) 141 (1865) ; Douglas v. Shumway, 13 Gray(Mass.)
498; Claflin v. Carpenter, 4 Mete. (Mass.) 580, 88 Am. Dec. 381; Nettleton v.
Sikes, 8 Mete. (Mass.) 34; Shakers United Society v. Brooks, 145 Mass. 410;
Hill v. Hill, 113 Mass. 103, 105.
3. Giles v. Simonds, 15 Gray (Mass.) 441; Drake v. Wells, 11 Allen (Mass.) 141;
Whitmarsh v. Walker, 1 Mete. 316.
4. Hill v. Cutting, 107 Mass. 596; Driscoll v. Marshall, 15 Gray 62; Douglas v. Shum-
way, 13 Gray (Mass.) 498.
5. Fletcher v. Livingston, 153 Mass. 388.
6. Brown v. Bishop 105 Me. 272, 74 Atl. 724; Emerson v. Shores, 95 Me. 237, 49
Atl. 1051, 85 Am. St. Rep. 404; Banton v. Shorey, 77 Me. 48;Erskinev.
Plummer, 7 Me. 477, 22 Am. Dec. 216; Cutler v. Pope, 13 Me. 377.
7. Upson v. Holmes, 51 Conn. 500; Bostwick v. Leach, 3 Day (Conn.) 484.
STATE RULES AS TO STATUTE OF FRAUDS 143
111. The Maryland Rule. The Maryland courts
have taken the ground that where standing timber is speci-
fically sold, whether it is to be severed by the vendor or the
vendee, under a license to enter for that purpose, the inten-
tion of the parties will be construed to be that of a sale of
goods and not of an interest in land. l
The theory adopted in Massachusetts, Maine, Connecti-
cut and Maryland as to the interpretation to be placed upon
parol contracts for the sale of growing timber substantially
effects an evasion of the prohibition of the statute of frauds
against the sale of an interest in land by parol.
112. The Pennsylvania Rule,. In Pennsylvania, if
it is the intention of the parties that the timber is to remain
upon the land for some time, drawing sustenance therefrom,
and be taken at the pleasure of the vendee, the sale is held
to be one of an interest in land 2 while if the intention is
that it shall be removed at once and the trees are selected,
marked or clearly designated, the sale effects a constructive
severence and is one of chattels. 3 This doctrine is similar
to that expressed in the English case of Marshall v. Green 4
and has been approved in other states. 5
113. The Kentucky Rule. In Kentucky, if a con-
trary intention does not appear, the courts will construe a
parol contract as indicating an intention that the standing
trees shall become personalty at the instant the sale is
effected, and therefore not within the fourth section of the
statute and will give legal effect to that intention. The
Kentucky courts follow closely the English doctrine that as
soon as the trees are identified either by actual marking or
by such definite description as to afford certainty as to the
trees to be taken under the contract, the contract is com-
1. Leonard v. Medford, 85 Md. 666, 37 Atl. 365, 37 L. R. A. 449; Purner v. Piercy,
40 Md. 212; Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104.
2. Pattison's Appeal, 61 Pa. St. 294, 100 Am. Dec. 637; Bowers v. Bowers, 95 Pa.
St. 477; Yeakle v. Jacob, 33 Pa. St. 376; Miller v. Zufall, 113 Pa. St. 317, 6 Atl.
350.
3. McClintock's Appeal, 71 Pa. St. 365; Huff v. McCauley, 53 Pa. St. 206, 91 Am.
Dec. 203; Robbins v. Farwell, 193 Pa. St. 37, 44 Atl. 260; Strause v. Berger. 220
Pa. St. 369, 69 Atl. 818.
4. 1 C. P. Div. 35, supra.
5. Wright v. Schneider, 14 Ind. 527; Leonard v. Medford, 85 Md. 666; Yale v. Seely,
15 Vt. 221; Ellison v. Brigham, 38 Vt. 64; Sterling v. Baldwin, 42 Vt. 306; Up-
son v. Holmes. 51 Conn. 500.
144 CONTRACTS REGARDING GROWING TIMBER
plete and must be enforced; but instead of enforcing such
contracts as agreements for the sale of future goods, as is
done in Massachusetts, Maine and Maryland, they give the
purchaser relief upon the ground that in sales of timber in
which a prompt separation of the trees from the soil is con-
templated the constructive severance of the trees at the time
of the sale vests the title to them in the vendee and the ven-
dor is required to respond in damages for any action on his
part, after the sale but before severance, which deprives the
vendee of his property interests in the trees. l In Mass-
achusetts the intention of the parties to a parol contract
for th sale of standing trees that title shall pass at once is
not given legal effect until the trees are severed, while in
Kentucky the intention takes effect immediately and the
trees sold become chattels while still standing. In Ken-
tucky, if no definite time for removal is fixed in the agree-
ment, there is a presumption of law that the trees are to be
at once removed; but, if from all the circumstances connect-
ed with the sale it is clear that the parties intended that the
trees should stand for a time upon the land and draw nour-
ishment from the soil then a parol contract will not operate
to transfer the title to the growing trees. 2 However, it
should be noted that although in the leading Kentucky case 3
the trees sold by parol had actually been selected and
marked by the vendee with the vendor's consent, yet the
court held that if subsequent to that time the title to the
land were acquired for a valuable consideration by an inno-
cent purchaser without notice of the previous parol sale,
such purchaser could hold the trees and the vendee of the
trees must look to his vendor for damages for breach of con-
tract. In Tennessee, as well as in Kentucky, a parol sale
of standing timber will be enforced against a subsequent
1. Campbell v. Phillips, 30 Ky. L. Rep. 567, 99 S. W. 277; Tilford v. Dotson, 106 Ky.
755, 21 Ky. L. Rep. 333, 51 S. W. 583; Byasse v. Reese, 4 Mete. (Ky.) 372, 83
Am. Dec. 481 (1863); Cain v. McGuire, 13 B. Mon. (Ky.) 340; Wiggins v. Jack-
son, 73 S. W. 779, 24 Ky. L. Rep. 2189: Card well v. Atwater, 15 Ky. L. Rep. 541,
570; Hunter v. Burchett, 5 Ky. L. Rep. 770; Sproule v. Hopkins, 4 Ky. L. Rep.
533; Lockeshan v. Miller, 16 Ky. L. Rep. 55; But See, Ayer & Lord Tie Co. etc.
v. Davenport, 26 Ky. L. Rep. 115, 82 S. W. 177.
2. Bowerman v. Taylor, 127 Ky. 812, 1O6 S. W. 846, 32 Ky. L. Rep. 671; Bell County
Land etc. Co. v. Moss, 17 S. W. 354, 30 Ky. L. Rep. 6; Asher Lumber Co. v
Cornett, 63 S. W. 974, 23 Ky. L. Rep. 602, 56 L. R. A. 672.
3. Byasse v. Reese, 4 Mete. (Ky.) 372.
SALE OF SEVERED PRODUCTS ENFORCEABLE 145
purchaser of the land with notice of the parol sale of the
timber. 1
114. The Rule in the Majority of the States. In
New Hampshire, New York, New Jersey, Indiana and the
other states which hold that all enforceable sales of growing
trees must be in writing, a parol sale of standing timber is
construed as a mere license to enter and cut timber which
may be revoked at any time before cutting; 2 but such
trees as are cut down before the revocation of the license
become personalty, belong to the licensee and may be car-
ried away by him. 3 In such states the revocation of the
license to cut does not give the licensee a right of action for
breach of contract. In other words a parol contract which
by the words used purports to convey title to the timber
will be given the same legal effect as if it were a simple oral
agreement on the part of the land owner to permit the other
party to cut timber and pay its market value. The death
of the owner of the land, or his conveyance of the land with-
out a reservation of the growing trees acts as a revocation
of the license to the same extent as an express revocation
on his part. 4
115. The Sale of Severed Products. From the cases
in which there is a conflict of opinion as to whether the sale
is one of growing trees as realty or as constructively
severed personalty should be carefully distinguished those
cases in which the contract clearly contemplates the sale of
severed trees, logs, ties or lumber; and it should be noted
1. New York etc. Iron Co. v. Green County Iron Co., 11 Heisk. (Tenn.) 434.
2. Armstrong v. Lawson, 73 Ind. 498.
3. Fla. Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19.
Me. Cf. Erskine v. Plummer, 7 Me. 447, 22 Am. Dec. 216.
Mass. Cf. Drake v. Wells, 11 Allen 141; Giles v. Simouds, 15 Gray 441, 77 Am.
Dec. 373; Nettleton v. Sikes, 8 Mete. 34.
Mich. White v. King, 87 Mich. 107, 49 N. W. 518; Spalding v. Archibald, 52 Mich.
365, 17 N. W. 940, 50 Am. Rep. 253; Haskell v. Ayres, 35 Mich. 89.
Minn. Wilson v. Fuller, 58 Minn. 149.
Mo. McAllister v. Walker, 69 Mo. App. 496 (Dec. 1897).
N. Y. Pierrepont v. Barnard, 6 N. Y. 279 (Reversing 5 Barb. 364); Bennett v.
Scutt, 18 Barb. 347.
S.Dak. Price etc. Co. v. Madison, 17 S. D. 247, 95 N. W. 933.
Vt. Yale v. Seeley, 15 Vt. 221.
W.Va. Fluharty v. Mills, 49 W. Va. 446, 38 8. E. 521.
4. Emerson v. Shores, 95 Me. 237, 49 Atl. 1051, 85 Am. St. Rep. 404; Bruley v. Gar-
vin. 105 Wis. 625, 81 N. W. 1038.
See Tremaine v. Williams, 144 N. C. 114, 56 8. E. 694. (possession under unre-
corded or invalid deed not notice to later purchaser.)
A
146 CONTRACTS REGARDING GROWING TIMBER
that such contracts may contemplate a severance by the
vendee as well as by the vendor. The English case of
Smith v. Surnam (9 Barn. & C. 561) pointed the way to this
line of cases and it seems strange that so much confusion has
arisen in subsequent decisions. There have been numerous
decisions holding oral sales to be valid where they clearly
contemplated the cutting of the trees by the vendor and the
delivery of logs or other products of the trees to the vendee; 1
and in contracts which provide that the cutting be done
by the vendee it may be clearly the intention of the parties
that the sale is one of the severed products as chattels. 2
116. The Period Allowed for Removal. Most con-
tracts which contemplate a sale of trees separate from the
land upon which they stand stipulate a period of time within
which the vendee may enter and remove the trees. The
limited time usually begins to run from the day the convey-
ance is made but the contract may provide otherwise. Thus
it may be provided in the contract that the period allowed
for removal shall begin to run at the time that cutting is be-
gun, 3 but in such cases the cutting must be begun within a
1. Mich. Yockey v. Norn, 101 Mich. 193.
N. Y. Killmore v. Hewlett, 48 N. Y. 569 (1872).
S. C. Jones v. McMichael, 12 Rich. 176.
Term. Dorris v. King et al. (Ch. App. Tenn. 1889), 54 S. W. 683.
2. Nash v. Rockford Veneer Co., 109 Mich. 269 (1896).
3. Ark. Attridge v. Smith, 105 Ark. 626, 152 S. W. 300. See Burbridge v. Lbr. Co.
178 S. W. 304 (Expeditiously as possible.) Newton v. Stock 173 S. W.
819 (Contract required diligence and penalty for failure in time
named. Held continuous logging required.)
Fla. Brown v. Beckwith, 60 Fla. 310, 53 So. 542.
Ga. Lbr. Co. v. Harris, 8 Ga. App. 70, 68 S. E. 749 (effect of cutting by a third
party.) Perkins v. Peterson, 110 Ga. 24, 35 S. E. 319; Baxter v. Mattox,
106 Ga. 344, 32 S. E. 94.
Ky. Hounshell v. Muller, 153 Ky. 530. 155 S. W. 114 ; Begley v. Timber Co..
152 Ky. 455, 153 S. W. 734.
La. See Yerger v. Simmons, 136 La. 280, 67 So. 3; Thompson v. Sawmill Co.,
121 La. 318, 46 So. 341.
Mo. Hanna v. Buford (Mo. App.) 177 S. W. 662
Mont. Hollensteiner v. Lbr. Co. 37 Mont. 278, 96 Pac. 420.
N. C. Rountree, v. Cohn-Bock Co., 158 N. C., 153, 73, S. E. 796; Powers v. Lbr.
Co., 154 N. C. 405, 70 S. E. 629; See Davis v. Frazier, 150 N. C. 447,
64 S. E. 200.
S. C. Timber Co., v. Prettyman, 97 S. C. 247, 81 S. E. 484; McClary Lbr.
Corp. 90 S. C. 153; 72 S. E. 145; Lbr. Co. Litchfleld 90 S. C. 363, 73
S. E. 182; Matthewson v. Lbr. Co., 95 S. E. 352, 78 S. E. 970; Flagler
v. Lbr. Corp., 71 S. E. 849.
Va. See Brown v. Lbr. Co. 75 S. E. 84.
Wash. Heybrook v. Beard, 75 Wash. 646, 135 Pac. 626; Dew v. r earson, 73 Wash.
602, 132 Pac. 412.
U. S. Cf. U. S. v. Lbr. Co., 172 Fed. 714.
TIME FOR REMOVAL OF TIMBER SOLD 147
reasonable time. 1 And if the contract does not expressly
indicate that there is to be no limit, 2 and yet fails to desig-
nate a limited time for removal, the courts will allow only a
reasonable time for the removal. 3 The court will ordinarily
leave to the jury the determination of what constitutes a
1. Hawkins v. Goldsboro Lumber Co., 139 N. C. 160, 51 S. E. 852, 139 N. C. 167, 51
8. E. 855. Gay Mfg. Co. v. Hobbs. 128 N. C. 46, 38 S. E. 26, 83 Am. St. Rep.
661.
2. Fla. See Cawthorn v. Lbr. Co., 60 Fla. 313, 53 So. 738.
Ga. North Ga. Co. v. Bebee, 128 Ga. 563, 57 S. E. 873; Baxter v. Mattox, 106
Ga. 344, 32 S. E. 94.
Ky. McCoy v. Fraley, 113 S. W. 444.
La. Lbr. Co. v. Hotard, 122 La. 850, 48 So. 286.
Miss. Lbr. Co. v. Britton, 105 Miss. 592, 62 So. 648; Lbr. Co. v. Guy, 92 Miss.
361, 46 So. 78.
Mont. Realty Co. v. Donlan, 149 Pac. 484. *
S. C. Orchard Co. v. Dennis, 220 Fed. 516 (unconditional conveyance, grantee
has indefinite time to remove.)
Tex. Jones v. Lbr. Co. (Civ. App.) 99 S. W. 736; Lbr. Co. v. Taylor, 100 Tex.
270, 98 S. W. 238; Lbr. Co. v. Taylor (Civ. App.) 99 S. W. 192.
Va. Brown v. Lbr. Co. 75 S. E. 84; Young v. Mfg. Co., 110 Va. 678, 66 S. E.
843; See Carpenter v. Mfg. Co., 71 S. E. 559.
Wash. Boom Co. v. Ydumans, 116 Pac. 645.
3. Ala. Ward v. Moore, 180 Ala. 403, 61 So. 303; Goodson v. Stewart. 154 Ala.
660, 46 So. 239; Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776.
Ark. Yelvington v. Short, 111 Ark. 253, 163 S. W. 522; Earl v. Harris, 137
S. W. 806; Fletcher v. Lyon, 93 Ark. 5, 123 S. W. 801; Listen v. Chap-
man Etc. Lbr. Co., (1905) 91 S. W. 27.
Fla. Cawthorn v. Lbr. Co., 60 Fla. 313, 53 So. 738; Land Co. v. Adams, 54 Fla.
550, 45 S. E. 492.
Ga. Howell v. Clements, 139 Ga. 441, 77 S. E. 564; Turpentine Co. v. Arm-
strong 10 Ga. App. 339, 73 S. E. 610; Lbr. Co. v. Gates, 70 S. E. 672;
Johnson v. Truitt, 122 Ga. 327, 50 S. E . 135. See also McRae v. Still-
well, 111 Ga. 65. 36 S. E. 604, 55 L. R. A. 513; Goette v. Lane, 111 Ga.
400.
See Brand v. Johnson, (Ga. App.) 71 S. E. 1123.
Iowa Cf. Baker v. Kenney, 145 la. 638, 124 N. W. 901 (Perpetual right of entry.)
' Ky. Dev. Co. v. Lbr. Co., 154 Ky. 523, 157 S. W. 1109; Hicks v. Phillips, 146
Ky. 305, 142 S. W. 394; Gates v. Yeargin, 115 S. W. 794; Evans v.
Dobbs, 112 S. W. 667; Timber Co v. Coal Co., 107 S. W. 733, 32 Ky. L.
Rep. 1015; Bowerman v. Taylor, 127 Ky. 812, 106 S. W. 846, 32 Ky. L.
Rep. 671; Cf. Siler v. Property Co., 107 S. W. 266. 32 Ky. L. Rep. 911.
La. See Shepherd v. Lbr. Co. 121 La. 1011, 46 So. 999.
Mich. St. James v. Erskine, 155 Mich. 606, 119 N. W. 897.
Miss. Hall v. Eastman, 89 Miss. 588, 43 So. 2.
N. H. Kidder v. Flanders, 73 N. H. 345, 61 Atl. 675; Hoit v. Stratton Mills, 54
N. H. 109, 20 Am. Rep. 119.
N. C. See Hornthal v. Howcott, 154 N. C. 228, 70 S. E. 171 ; Bunch v. Elizabeth
City Lumber Co., 134 N. C. 116, 46 S. E. 24.
Pa. Patterson v. Graham, 164 Pa. St. 234, 30 Atl. 247.
S. C. Gray v. Lbr. Co., 86 S. E. 640; Minshaw v. Lbr. Corp., 98 S. C. 8, 81 S. E.
1027; Timber Co. v. Prettyman, 97 S. C. 247, 81 S. E. 484; Gresham v.
Lbr. Corp., 96 S. C. 53, 79 S. E. 799.
Tenn. Carson v. Three States Lbr. Co., 108 Tenn. 681, 69 S. W. 320, 91 S. W. 53.
Tex. Oil Co. v. Hamilton (Civ. App.) 153 S. W. 1194; Oil Co. v. Boykin (Civ.
App.) 153 S. W. 1176, Development Co. v. Lbr. Co. (Civ. App.) 139 S.
W. 1015; Beauchamp v. Williams (Civ. App.) 115 S. W. 130.
Vt. Lbr. Co. v. Lyman, 94 Atl. 837.
Va. Carpenter v. Mfg. Co., 71 S. E. 559.
W.Va. Metallurgical Co. v. Montgomery, 74 S. E. 994.
Can. Dolan v. Baker, 10 Ont. L. Rep. 259.
148 CONTRACTS REGARDING GROWING TIMBER
reasonable time under the circumstances presented in each
particular case, x and the facts as they existed at the time
a deed was executed are the only ones to be considered in the
determination of this question. 2 Even where the time
within which removal is to be accomplished is fixed, a rea-
sonable extension of the time for the removal will be allowed
in some jurisdictions; but this extension subsequent to the
expiration of the limited time, and the allowance of a rea-
sonable time for the commencement and completion of
operations, where the limited period does not begin to run
until cutting commences, are likewise subject to limitations.
In several cases in which contracts have provided for a cer-
tain* cutting period after operations should begin, courts
have held the periods claimed by the purchasers for re-
moval to be unreasonable as a matter of law. 3 Where the
time for the removal is not definitely fixed in the contract,
the length of time which should be held reasonable may be
affected by the conduct of the owner of the land. If the
1. Ark. Earl v. Harris, 137 S. W. 806; Fletcher v. Lyon, 93 Ark. 5, 123 S. W. 801;
Stave Co. v. Sims, 84 Ark. 603; 106 S. W. 959; Listen v. Lbr. Co., 91
S. W. 27.
Fla. Land Co. v. Parker, 64 Fla. 371, 59 So. 959; Land Co. v. Adams, 54 Fla.
550, 45 So. 492.
Ga. Branch v. Johnson, (Ga. App.) 71 S. E. 1123; Mills v. Ivey, 3 Ga. App.
557, 60 S. E. 299; Lbr. Co. v. Gates, 70 S. E. 672 (15 years not unreason-
able as a matter of law); Warren v. Ash, 129 Ga. 329, 58 S. E. 55S: Mc-
Rae v. Stillwell, 111 Ga. 65, 36 S. E. 604.
Ky. Evans v. Dobbs 112 S. W. 667 (hiatus in operations). See Mineral Etc.
Co. v. Lbr. Co. 148 Ky. 82, 146 S. W. 438.
La. Cf. Palmer v. Lbr. Co., 125 La. 31, 51 So. 58.
Mass. Gilmore v. Wilbur, 12 Pick. (Mass.) 120; Hill v. Hill, 113 Mass. 103, 18
Am. Rep. 455.
Mich. Oconto v. Lundquist, 119 Mich. 264; Wood v. Elliott, 51 Mich. 320.
N. H. Hoit v. Stratton, Mills Lbr. Co., 54 N. H. 452.
N. Y. Bennett v. Scutt, 18 Barb. (N. Y.) 347.
N. C. Byrd v. Sexton, 161 N. C. 569, 77 S. E. 697.
Pa. Boults v. Mitchell, 15 Pa. St. 364; Andrews v. Wade, 6 Atl. 48.
S. C. Cf. Minshaw v. Lbr. Corp., 96 S. C. 8, 81 S. E. 1027; Lbr. Co. v. Alderman,
80 S. C. 106, 61 S. E. 217. See also McClary v. Lbr. Corp. 90 S. C. 153,
72 S. E. 145.
Tenn. Carson v. Three States Lbr. Co., 108 Term. 681, 69 S. W. 320.
Tex. Beauchamp v. Williams (Civ. App.) 115 S. W. 130.
Vt. Lbr. Co. v. Lyman, 94 Atl. 837.
Va. Young v. Mfg. Co., 110 Va. 678, 66 S. E. 843.
U. S. Knox & Lewis v. Alwood, 228 Fed. 753 (Georgia case.)
2. Allison v. Wall, 121 Ga. 822, 49 S. E. 831.
3. Ky. Dev. Co. v. Lbr. Co., 154 Ky. 523, 157 S. W. 1109 (14 years).
N. C. Bunch v. Lbr. Co., 134 N. C. 116, 46 S. E. 24 (13 years); Gay Mfg. Co. v.
Hobbs, 128 N. C. 46, 38 S. E. 26, 83 Am. St. Rep. 661.
Tex. Oil Co. v. Boykin (Civ. App.) 153 S. W. 1176 (11 years).
Va. Carpenter v. Mfg. Co., 71 S. E. 559 (15 years not unreasonable).
TIMBER STANDING WHEN CONTRACT EXPIRES 149
land owner shows 1 no intention to use the land l the courts
will interpret the contract more liberally as to a reasonable
time than they will if the leaving of the timber upon land
interferes with the use of it, especially where the owner of the
land gives proper notice to the purchaser of the timber that
he desires an early removal. 2 In a Pennsylvania case in
which the time for removal was not fixed, the purchaser
entered within a reasonable time, cut all timber considered
merchantable and moved away his mill; it was held that he
could not enter again and cut timber eleven years subse-
quent to the completion of the first operation. 3 But in
another case it has been held that cutting need not be con-
tinuous to comply with the terms of a contract which con-
tained a limitation as to the number of years to be allowed
for removal. 4 If no definite time for the removal of the
timber is fixed in a written contract by the owner of land
the covenant of title to the trees runs with the land. 5
117. The Effect of the Termination of the Time
Limited for Removal. Many legal contests have arisen
in cases where a valid contract required that all of the tim-
ber covered by the contract be removed within a given time
or gave the vendee the right to enter during a specified time
for the purpose of taking the timber. The general rule is
that such a contract must be construed as one which con-
templates the sale of only such timber as is actually cut and
removed within the time limited. 6 Such a contract is
1. Haskell v. Ayres, 35 Mich. 89, (parol extension) ; Grange v. Palmer, 56 Hun (N. Y.)
481; Cf. Williams v. Flood, 63 Mich. 487; Ferguson v. Arthur' (Mich.)
87 N. W. 259. But see Lbr. Co. v. Roots, 49 Ore. 569, 90 Pac. 487 (con-
ditional extension; buyer must show compliance with condition. Pur-
chaser may insist on contract right to use roads.)
2. Short v. Messenger 126 Pa. 637, 17 Atl. 881, 24 W. N. C. 244; Boults v. Mitch-
ell, 15 Pa. St. 371; Minshaw v. Lbr. Corp. 98 8. C. 8, 81 S. E. 1027. See David-
son v. Moore, 37 S. W. 260, 18 Ky. L. Rep. 563; Brown v. Lbr. Co. (Va.) 75 S.
E. 84.
3. Patterson v. Graham, 164 Pa. St. 234, 30 Atl. 247. See also, Moore v. Young,
162 Mich. 237, 127 N. W. 339; Turner v. Bissell, et al, 69 N. Y. Misc. 167, 126
N. Y. Suppl. 234; Davis v. Frazier, 150 N. C. 447, 64 S. E. 200.
4. Hardison v. Dennis Simmons Lumber Co., 136 N. C. 173, 48 S. E. 588.
5. Hogg v. Frazier, 70 S. W. 291, 24 Ky. L. Rep. 930. But see Emerson v. Shores
95 Me. 237, 49 Atl 1051, 85 Am. St. Rep. 404.
6. Ga. See Lbr. Co. v. Harris, 8 Ga. App. 70, 68 S. E. 749 (oral waiver effective.)
Ind. See Veneer Etc. Co. v. Homaday (Ind. App.) 96 N. E. 784.
Iowa. See Baker v. Kenney, 145 la. 638, 124 N. W. 901.
Ky. Murray v. Boyd, 165 Ky. 625, 177 S. W. 468; Vincent v. Haycroft, 158 Ky.
845, 166 S. W. 613; Harrell v. Danks, 151 Ky. 71, 151 S. W. 13; Bach v.
Little, 140 Ky. 396, 131 S. W. 172; Lbr. Etc. Co. v. Cress, 132 Ky. 317
(Footnote 6 continued on next page)
150 CONTRACTS REGARDING GROWING TIMBER
ordinarily held to give the vendee no right and afford him no
protection in a removal subsequent to the expiration of the
time named. * In many states it is held that the title to the
timber not removed during the time specified or contemplat-
ed by the parties reverts to the owner of the land even
though the reversion is not expressly stated in the con-
( Footnote 6 concluded from preceding page)
116 S. W. 710; Jackson v. Hardin, 87 S. W. 1119, 27 Ky. L. Rep. 1110.
Cf. Lbr. Co. v. Cornett, 146 Ky. 457, 142 S. W. 718; Hampton v. Cope
144 Ky. 720, 139 S. W. 937; McCoy v. Fraley, 113 S. W. 444. (Equit-
able interest of purchaser in timber where no time limit is stated.)
La. Cypress Co. v. Thibodaux, 120 La. 834, 45 So. 742.
Me. Webber v. Proctor, 89 Me. 404, 36 Atl. 631 ; Howard v. Lincoln, 13 Me.
122; Pease v. Gibson, 6 Me. 81.
Mich. Iron Etc. Co. v. Nester, 147 Mich. 599, 111 N. W. 177. See Scott v. Sul-
livan, 159 Mich. 297, 124 N. W. 29.
Minn. King v. Merriman, 38 Minn. 47, 35 N. W. 570.
Mont. Hollensteiner v. Lbr. Co., 37 Mont. 278, 96 Pac. 420.
N. H. See Nutting v. Stratton, 77 N. H. 79, 87 Atl. 251.
N. Y. Boisaubin v. Reed, 1 Abb. Dec. 161 (N. Y.), 2 Keyes 323; Kellam v. Mc-
Kenstry, 6 Hun. (N. Y.) 381, Aff. in 69 N. Y. 264.
N. C. Fowle v. McLean, 168 N. C. 537, 84 S. E. 852; Williams v. Parsons, 167
N. C. 529, 83 S. E. 914; Lbr. Co. v. Whitley, 163 N. C. 47, 79 S. E. 268;
Midyette v. Grubbs, 145 N. C. 85, 58 S. E. 795, 13 L. R. A. N. S. 278.
Cf. Bateman v. Lbr. Co., 154 N. C. 248, 70 S. E. 474.
S. C. Hill v. Lbr. Co. 90 S. C. 176, 72 S. E. 1085.
Tenn. Bond v. Ungerecht, 129 Tenn. 631, 167 S. W. 1116.
Tex. Davis v. Conn. (Civ. App.) 161 S. W. 39; Lbr. Co. v. McWhorter, (Civ.
App.) 156 S. W. 1152; Carter v. Lbr. Co. (Civ. App.) 149 S. W. 278.
Vt. Stevens v. Sayers, 82 Vt. 324, 73 Atl. 817; Strong v. Eddy, 40 Vt. 547.
Va. Hartley v. Neaves, 84 S. E. 97; Mfg. Co. v. Allen, 85 S. E. 568; Young v.
Mfg. Co., 110 Va. 678, 683, 66 S. E. 843.
Wash. MU1 Co. v. Vaughn, 57 Wash. 163, 106 Pac. 622.
W.Va. Kunst v. Mabie, 72 W. Va. 202, 77 S. E. 987; Brown v. Gray, 68 W. Va.
555, 70 S. E. 276.
Wis. Bretz v. Connor Co., 140 Wis. 269, 122 N. W. 717; Hicks v. Smith, 77 Wis.
146; 46 N. W. 133; Golden v. Glock, 57 Wis. 118, 15 N. W. 12, 46 Am.
Rep. 32.
1. Ala. Lbr. Co. v. Shepard, 180 Ala. 148, 60 So. 825; Gibbs v. Wright (Ala. App.)
57 So. 258.
Ark. Cf. Mayes v. Watkins, 165 S. W. 633.
Ga. Dickey v. Lbr. Co., 127 Ga. 460, 56 S. E. 481 ; Allison v. Wall, 121 Ga. 822.
498. E. 831.
Ky. See Lbr. Co. v. Asher, 131 Ky. 796, 115 S. W. 790; Chestnut v. Green, 86
S. W. 1122, 27 Ky. L. Rep. 838.
Me. Noyes v. Coding, 104 Me. 453, 72 Atl. 181 (timber reserved in land sale.)
Mich. Haskell v. Ayers, 32 Mich. 93.
N. Y. Mclntyre v. Barnard, 1 Sandf. ch. 52.
N. C. Davis v. Frazier, 150 N. C. 447, 64 S. E. 200; Powers v. Lbr. Co., 154 N. C.
405, 70 S. E. 629.
Ore. Anderson v. Lbr. Co., 116 Pac. 1056.
Tenn. Mengal Box Co. v. Moore, 114 Tenn., 596, 87 S. W. 415.
Tex. Brooks v. Moss (Civ. App.) 175 S. W. 791; Chavers v. Henderson (Civ.
App.) 171 S. W. 798; Lancaster v. Roth (Civ. App.) 155 S. W. 597;
Beauchamp v. Williams (Civ. App.) 115 S. W. 130.
Va. Smith v. Ramsay, 116 Va. 530, 82 S. E. 189.
Wash. Belcher v. Kleeb, 59 Wash. 166, 109 Pac. 798. See Lehtonen v. Power
Co., 58 Wash. 86, 107 Pac. 878 (deed reserving right to remove.)
W.Va. Null v. Elliott, 52 W. Va. 229, 43 S. E. 173.
TIMBER STANDING WHEN CONTRACT EXPIRES 151
tract, 1 but other states hold that the title remains in the vendee
of the timber, or his assignee, and that all that is lost by the
expiration of the time is the right to enter and remove tim-
ber not yet taken. 2 If the contract is so worded in a par-
ticular case as to make the agreement to remove within a
certain time a mere covenant, as a matter of law, the title
to the timber will remain in the purchaser even after the ex-
1. Ala. Contsa West v. Maddox (Ala.) 69 So. 101.
Ga. Branch v. Johnson (Ga. App.) 71 8. E. 1123; Lbr. Co. v. Gates, 70 S. E.
672; McRae v. Stillwell, 111 Ga. 65; Baxter v. Mattox, 106 Ga. 344.
Ky. Bach v. Little, 140 Ky. 396, 131 S. W. 172; Bell County Land Co. v. Moss,
97 8. W. 354, 30 Ky. L. Rep. 6.
Me. Cf. Brown v. Bishop, 105 Me. 272, 74 Atl. 724.
Mass. Reed v. Merrifleld, 10 Mete. 155; Kemble v. Dresser, 1 Mete. 271, 35 Am.
Dec. 364.
Mich. Iron Co. v. Nester, 147 Mich. 599, 111 N. W. 177; Macomber v. Detroit
Etc. R. Co., 108 Mich. 491, 66 N. W. 376; 62 Am. St. Rep. 713, 32 L. R.
A. 102; Gamble v. Gates, 97 Mich. 465, 56 N. W. 855; Green v. Bennett,
23 Mich. 464; Haskell v. Ayres, 32 Mich. 93, 35 Mich. 89; Utley v. Wil-
cox Lbr. Co., 59 Mich. 263; Kennedy v. Dawson, 96 Mich. 83.
Mo. Hanna v. Buford (App.) 177 S. W. 662.
N". Y. See Fox v. Fitzpatrick, 190 N. Y. 259; 82 N. E. 1103.
N. C. Wiley v. Lbr. Co. 156 N. C. 210, 72. S. E. 305; Williams v. Lbr. Co., 154
N. C. 306, 70 S. E. 631, Hornthal v. Hawcott, 154 N. C.
228, 70 S. E. 171; Davis v. Frazier, 150 N. C. 447, 64 S. E. 200; Mining
Co. v. Cotton Mills, 143 N. C. 307, 55 S. E. 700; Lumber Co. v. Corey,
140 N. C. 462, 53 S. E. 300; Hawkins v. Goldsboro Lbr. Co., 139 N. C.
160, 51 S. E. 852, 139 N. C. 167, 51 S. E. 855; Bunch Lbr. Co. v. Lumber
Co., 134 N. C. 116, 46 S. E. 24.
Pa. Bennett v. Vinton Lbr. Co., 28 Pa. Super. Ct. 495; Saltonstall v. Little, 90
Pa. St. 422.
S. C. Minshew v. Lbr. Corp., 98 S. C. 8, 81 S. E. 1027; Hill v. Lbr. Co. 90 S. C.
176, 72 S. E. 1085.
Va. Furniture Co. v. Rhea, 114 Va. 271, 76 S. E. 330.
Wash. Lehtonen v. Water Etc. Co., 50 Wash. 359, 97 Pac. 292.
W.Va. Lbr. Co. v. Sheets, 83 S. E. 81 (to grantee of owner.)
Wis. Strasson v. Montgomery, 32 Wis. 52 ; Larson v. Cook, 85 Wis. 564.
Can. Johnston v. Shortbreed, 12 Ont. 633; Steinhofl v. McRae, 13 Ont. 546.
2. Ala. Lbr. Co. v. Shepard, 67 So. 286; Wright v. Lbr. Co., 186 Ala. 251, 65 So.
353; Magnetic Ore Co. v. Marbury Lbr. Co., 104 Ala. 465, 16 So. 632, 53
Am. St. Rep. 73, 27 L. R. A. 434.
Ark. Lbr. Co. v. Eldridge, 89 Ark. 361, 116 S. W. 1173; Lbr. Co. v. Worley (Ark.)
130 S. W. 1066.
Ind. Halstead v. Jessup, 49 N. E. 821.
Ky. Mineral Etc. Co. v. Lbr. Co. 148 Ky. 82, 146 S. W. 438; Timber Co. v.
Coal Co., 107 S. W. 733, 32 Ky. L. Rep. 1015.
See Lbr. Co. v. Cornett 146 Ky. 457, 142 S. W. 718; Hicks v. Phillips 146
Ky. 305, 142 S. W. 394. Both cases in which timber was reserved.
Me. Davis v. Emery, 61 Me. 140 (apparently overruling Pease v. Gibson, 6
Me. 81).
Mo. Land Co. v. Watson, 129 Mo. App. 554, 107 S. W. 1045.
N. H. Pierce v. Finerty, 76 Atl. 194, 79 Atl. 23; Hoit v. Stratton Mills, 54 N. H.
109, 20 Am. Rep. 119.
N. J. Wyckoff v. Bodine, 47 Atl. 23; Irons v. Webb, 41 N. J. L. 203, 32 Am.
Rep. 193.
Tex. Contra. Oil Co. v. Hamilton (Civ. App.) 153 S. W. 1194.
Vt. Lbr. Co. v. Lyman, 94 Atl. 837; DeGoosh v. Baldwin. 82 Atl. 182.
Va. Cf. Young v. Young, 109 Va. 222, 63 S. E. 748.
W. Va. Keystone Co. v. Brooks, 65 W. Va. 512, 64 S. E. 614.
152 CONTRACTS REGARDING GROWING TIMBER
piration of the time limited for removal, l and on the other
hand if the contract specifically provides for a reversion of
all timber left on the land at the tine of expiration, the for-
feiture will be sustained 2 Where timber already cut re-
verts to the land owner the one who cut will ordinarily be
Unable to obtain recompense for the labor bestowed upon the
timber in cutting. 3
If the contract contains no definite limitation of time for
removal, the rule of the jurisdiction as to definite limitations
will be applied after the expiration of a reasonable time. 4
It is clear that the land owner should not be permitted to
take advantage of a forfeiture of the timber if the failure of
the purchaser to remove the timber was due to the fault of
the land owner, and this principle has been recognized in
specific cases, 5 and under such circumstances the vendee
will be given an additional time within which to remove the
timber. 6 It was also held that a limitation of the removal
to one logging season would not be given effect in a locality
where logging was carried on the year around and the re-
moval of the timber sold could not be reasonably accom-
1. Ala. Vizard v. Robinson, 181 Ala. 349, 61 So. 959.
Ark. See Tucker v. Lbr. Co., 129 S. W. 1085.
Cal. Ciapusci v. Clark, 12 Cal. App. 44, 106 Pac. 436. See Gibbs v. Peterson,
163 Cal. 758, 127 Pac. 62; Gibbs v. Peterson, 1.47 Cal. 1, 81 Pac. 121.
109 Am. St. Rep. 107.
111. Walker v. Johnson, 116 111. App. 145.
Ky. Shepherd v. Bank, 156 Ky. 495, 161 S. W. 214; Land Etc. Co. v. Moss,
97 S. W. 354, 29 Ky. L. Rep. 6.
N. C. See Lbr. Co. v. Smith, 150 N. C. 253, 63 S. E. 954.
Tex. Davis v. Conn. (Civ. App.), 161 S. W. 39; Lbr. Co. v. Taylor, 100 Tex.
270, 98 S. W. 238.
W. Va. Brown v. Gray, 68 W. Va. 555, 70 S. E. 276.
U. S. Lbr. Co. v. Long, 182 Fed. 82. Cf. U. S. v. Lbr. Co., 172 Fed. 714.
Can. McNeill v. Haines, 17 Ont. 479; McGregor v. McNeil, 32 U. C. C. P. 538.
2. Gamble v. Gates, 92 Mich. 510, 52 N. W. 941.
3. Ibid.
4. Magnetic Ore Co. v. Marbury Lbr. Co., 104 Ala. 465, 16 So. 632, 53 Am. St. Rep.
73, 27 L. R. A. 434; Hoit v. Stratton Mills, 54 N. H. 109, 20 Am. Rep. 119.
5. Small v. Robarge, 132 Mich. 356, 93 N. W. 874.
See Kimsey v. Posey, 148 Ky. 54, 145 S. W. 1121.
6. Ky. Jackson v. Harding, 87 S. W. 1119, 27 Ky. L. Rep. 1110; Chestnut v.
Green, 86 S. W. 1122, 27 Ky. L. Rep. 838.
Mich. Sullivan v. Godkin, 172 Mich. 257, 137 N. W. 521 (Purchaser of land from
which timber was sold must prove amount of timber removed after
expiration of tune limit).
N. Y. But see Inderlied v. Whaley, 65 Hun 407, 20 N. Y. Suppl. 183.
N. C. U. S. v. Mason Lbr. Co., 172 Fed. 714 (Indian timber).
Tex. Brooks v. Moss (Civ. App.) 175 S. W. 791.
Va. Cf. Furniture Co. v. Rhea, 114 Va. 271, 76 S. E. 330.
Wis. Cf. Gotham v. Lbr. Co., 156 Wis. 442, 146 N. W. 505
TIMBER SEVERED BEFORE CONTRACT EXPIRES 153
plished within the period of time known as a logging season
in other localities. l
118. The Title to Timber Cut but not Removed
before the Expiration of the Limited Time. In most
American jurisdictions timber cut down within the period
allowed for removal, but not removed, will be held to be per-
sonalty belonging to the purchaser, 2 and he will be per-
mitted to remove the same, but in some jurisdictions the
land owner will be given damages for the trespass involved
in the entrance of the premises to take the timber cut or for
the use of the land during the time of such removal. 3 In
other jurisdictions it has been held that the mere severance
of the trees prior to the expiration of the time for removal
will not operate to defeat the reversion to the land owner. 4
1. Prentiss v. Lyons, 105 La. 382, 29 So. 944; Lancaster v. Roth (Tex. Civ. App.)
155 S. W. 597 (weather conditions interfering with operation of mill no excuse.)
2. Ark. Griffin v. Anderson Tully Co., 91 Ark. 292, 121 S. W. 297; Lbr. Co. v.
Eldridge, 89 Ark. 361, 116 S. W. 1173; Plummer v. Reeves, 83 Ark.
10, 102 S. W. 376.
Fla. Sanborn v. Lbr. Co., 55 Fla. 389, 393, 46 So. 85.
Ga. Jones v. Graham, 141 Ga. 60, 80 S. E. 7.
Ind. See Hallett v. Hallett, 8 Ind. App. 305, 34 N. E. 740; Owens v. Lewis,
46 Ind. 488, 15 Am. Rep. 295.
Me. Erskine v. Savage, 96 Me. 57, 51 Atl. 242.
Md. Mfg. Co. v. Morris, 84 At). 238.
Mass. Douglas v. Shumway, 13 Gray 498.
Mich. Hodges v. Buell, 134 Mich. 162, 95 N. W. 1078; Macomber v. Detroit
Etc. R. Co., 108 Mich. 491, 66 N. W. 376, 62 Am. St. Rep. 713, 32
L. R. A. 102.
Minn. Alexander v. Bauer, 94 Minn. 174, 102 N. W. 387.
Mo. See Watson v. Gross, 112 Mo. App. 615, 87 S. W. 104.
N. H. Tuttle v. Pingree Co., 75 N. H. 288, 73 Atl. 407.
N. J. Irons v. Webb, 41 N. J. L. 203, 32 Am. Rep. 193.
N. C. Midyette v. Grubbs, 145 N. C. 85, 58 S. E. 795, 13 L. R. A. (N. S.) 278.
Ohio Walcutt v. Treish, 82 O. St. 263, 92 N. E. 423.
Tex. Brooks v. Moss, (Civ. App.) 175 S. W. 791; Lancaster v. Roth (Civ. App.)
155 S. W. 597.
Vt. Yale v. Seeley, 15 Vt. 221.
Wis. Hicks v. Smith, 77 Wis. 146, 46 N. W. 133; Golden v. Glock, 57 V\is.
118, 15 N. W. 12, 46 Am. Rep. 32.
W. Va. Fluharty v. Mills, 49 W. Va. 446, 38 S. E. 521.
U. S. U. S. v. Mason Lumber Co., 172 Fed. 714 (N. C. case.)
3. Alexander v. Bauer, 94 Minn. 174, 102 N. W. 387.
4. Mass. Kemble v. Dresser, 1 Mete. 271, 35 Am. Dec. 364.
Mich. Dye v. Woodenware Co., 134 N. W. 986 (express reversion stated) See-
Gamble v. Gates, 92 Mich. 510 (express reversion).
Miss. Rowan v. Carleton, 100 Miss. 177, 56 So. 329.
N. Y. McNeil v. Hall, 107 N. Y. App. Div. 36, 94 N. Y. Suppl. 920; Boisaubin
v. Reed, 1 Abb. Dec. 161, 2 Keyes 323; Mclntyre v. Barnard, 1 Sandf.
ch. 52.
N. C. Lbr. Co. v. Brown, 160 N. C. 281, 75 S. E. 714.
Pa. Cf. Mahan v. Clark, 219 Pa. 229, 68 Atl. 667.
Tenn. Bond v. Ungerecht, 129 Tenn. 631, 167 S. W. 1116.
Wash. Mill Co. v. Vaughn, 57 Wash. 163, 106 Pac. 622.
154 CONTRACTS REGARDING GROWING TIMBER
The manufacture of the severed trees into timbers, ties,
lumber, or other products, prior to the expiration of the
time of removal would probably be held sufficient in all
jurisdictions to vest the title irrevocably in the vendee. x
If the one who cuts trees would profit through the conversion
from realty to personalty, an equity court may hold that
such wrongful cutting does not change the trees to person-
alty in order to prevent the one' cutting from deriving an ad-
vantage from his wrongful act. 2
The rules usually applied to trees which have been cut by a
purchaser within the time limited for removal in the con-
tract is in accordance with the general principles of the law
regarding severed trees. Trees that have been severed
either rightfully or wrongfully will ordinarily be considered
personalty and will not pass with the land upon which they
lie. 3 The same is true of products manufactured from the
trees such as wood, hewed timber, posts and rails, not built
into a fence, 4 lumber, 5 slabs and other refuse piled for fire-
wood. 6
119. The Reservation of Title until Payment is
Made. When standing timber is sold the title may be re-
served in the vendor until full payment is made for the tim-
ber whether the contract requires that such payment be
1 . Ga. Johnson v. Truitt, 122 Ga. 327, 50 S. E. 135.
Miss. Butler v. McPherson, 95 Miss. 635, 49 So. 257.
Mo. Hubbard v. Burton, 75 Mo. 65.
S. C. Jones v. Lbr. Corp., 92 S. C. 418, 75 S. E. 698 (cutting for tram, as al-
lowed by contract, not a commencement.)
Wis. Golden v. Clock, 57 Wis. 118, 15 N. W. 12, 46 Am. Rep. 32.
. 2. Porch v. Fries, 18 S. J. Eq. 204.
3. See References Note 1, p. 22.
Also: Brock v. Smith, 14 Ark. 431; Jenkins v. Lykes, 19 Fla. 148, 158 (1882;;
Fitzpatrick v. Hoffman, 104 Mich. 228, (1895); Ind. School Dist. of West
Point v. Werner, 43 Iowa 643 (1876); Hickey v. Rutledge, 98 N. W. 974,
(Mich. 1904).
4. Schmidt v. Vogt, 8 Ore. 344, 347 (1880); Barrett v. Cohen, 119 Ind. 56 (1888);
Frank v. Magee, 50 La. Ann. 1066 (1898): Carpenter v. Lewis, 6 Ala. 682
(1844); Peck v. Brown, 5 Nev. 81 (1869); Reyman v. Mosher, 71 Ind. 596
(1880); Thweat v. Stamps, 67 Ala. 96 (1880); Crouch v. Smith, 1 Md. Ch.
401 (1849); Cook v. Whitney, 16 111. 480 (1855); McCarthy v. McCarthy,
20 Can. L. J. Occ. N. 211 (Co. Ct. Ont. 1900).
5. Howell v. Barnard, 32 111. App. 120 (1889); Hinkle v. Hinkle, 69 Ind. 134 (1879):
See Banfil v. Twyman, 71 111. App. 253 (1896).
6. Jenkins v. McCurdy, 48 Wis. 628 (1879).
RESERVATION OF TITLE UNTIL PAYMENT 155
made at one time or by installments. 1 In such a contract
a failure of the vendee to make payment in the manner re-
quired by the contract may result in a forfeiture of the con-
tract, but when ground for forfeiture has arisen, the right
will be waived by a subsequent acquiescence of the vendor
in expenditures by the .vendee in connection with the con-
tract, 2 and this waiver may be made by parol. 3 In a
case in which the contract gave the vendee the power to sell
the timber a Michigan court held that title passed to the one
purchasing from the vendee 4 and in the same state the ex-
ecution by the vendor of a bill of sale with no security but
the notes of the assignee of the original vendee was held to
effect a transfer of the title irrespective of the provisions in
the original executory contract and the bill of sale as to title
passing only after full payment. 5 Even though a pro-
vision in a contract requiring full payment before any tim-
ber is cut is not complied with, a subsequent full perform-
ance or tender of full performance will vest the legal title to
the timber in the purchaser, 6 if no forfeiture were declared
previous to the performance or tender of performance. If
after partial payment is made a default occurs and the vendor
takes possession of timber cut and makes expenditures in
delivering the same to market, he is entitled to repayment
of such expenses upon a subsequent completion of the con-
tract by the vendee. 7 Unless there is an express agree-
ment to that effect the vendor has no lien on timber cut for
the purchase price. 8 Such a lien exists where the con-
1. Lbr. Co. v. Pretorious 82 Ark. 347, 101 S. W. 733; Winders v. Kenan, 161 N. C.
628, 77 S. E. 687. McMurphy v. Garland, 47 N. H. 316; Tyler v. Strang 21 g,
Barb. (N. Y.) 198; Comstock v. Smith, 23 Me. 202; Lillie v. Dunbar, 62 Wis.
198, 22 N. W. 467; See Emersonv. Fisk, 6 Me. 200, 19 Am. Dec. 206; Wilkie
v. Day, 141 Mass. 68, 6 N. E. 542; Briggs Iron Co. v. Richardson, 4 Allen
371; Warren v. Leland, 2 Barb. (N. Y.) 613. In re Mfg. Co. 166 Fed. 585.
2. Buskirk v. Peck, 57 W. Va. 360, 50 S. W. 432; See Garrison v. Glass, 139 Ala.
512, 36 So. 725; Sears v. Ohler, (Ky.) 139 S. W. 759; Rowe v. Charles, (Ky.)
121 S. W. 697; Hardy v. Ward, 150 N. C. 385, 64 S. E. 171; Hill v. Lbr. Co.
90 S. C. 176, 72 S. E. 1085; Dev. Co. v. Lbr. Co. (Tex. Civ. App.) 139 S. W.
1015.
3. March v. Bellew, 45 Wis. 36.
4. Artman v. Shaw, 37 Mich. 448.
5. In re Ortman, 80 Mich. 67, 45 N. W. 63; Cf. Lillibridge v. Sartwell, 8 Pa. St. 523.
6. Haven v. Beidler Mfg. Co., 40 Mich. 286; See Burgett v. Bissell, 14 Barb. (N.
Y.) 638.
7. Burgett v. Bissell, 14 Barb. (N. Y.) 638.
8. Ga. Ray v. Schmidt 7 Ga. App. 380, 66 S. E. 1035. Mass. Douglas v. Shumway,
13 Gray 498; N. C. See Shingle Mill v. Sanderson 161 N. C. 452, 77 S. E. 414
Ore. Alderson v. Lee 52 Ore. 92, 96 Pac. 234 (statute) W. Va. Justice v. Moore
(W. Va.) 71 S. E. 204. Williams v. Gillespie, 30 W. Va. 586. 5. S. E. 210.
Can. But See, Summers v. Cook, 28 Grant ch. (U. C.) 179.
156 CONTRACTS REGARDING GROWING TIMBER
tract provides that full payment shall be made before the
logs are removed from the land, 1 or where the title to
standing timber is immediately transferred at the time of
sale but the contract expressly gives the vendor a lien on the
trees until payment is made. 2
120. Description of the Timber Sold. Unless a con-
trary intention is directly stated or may be clearly in-
ferred 3 from the terms of the contract, provisions as to the
size 4 or suitability 5 of trees to be taken will be construed
as referring to the size or suitability of the trees for the pur-
pose at the time when the conveyance was made. Where
the contract provided for no rule of measurement, and no
local usage to the contrary was shown, it has been held that
the diameter limit specified in the contract was to be de-
termined by a measurement from outside to outside, bark in-
1. N. Y. See Arnold v. Spring, 135 N. Y. Suppl. 314 (Lien for cord wood as part
of purchase price). Wash. Dew v. Pearson 73 Wash. 602, 132 Pac. 412. W.
Va. Bushkirk v. Peck, 57 W. Va. 360, 50 S. W. 432. Wis. See Bunn v. Valley
Lumber Co., 51 Wis. 376, 8 N. W. 232.
2. Ala. Lbr. Co. v. Ozment 187 Ala. 237, 65 So. 792. Ga. See Guin v. Lbr. Co.
6 Ga. app. 484, 65 S. E. 330. Me. Bradeen v. Brooks, 22 Me. 463. N. C.
Rogers v. Lbr. Co. 154 N. C. 108, 69 S. E. 788. (Lien waived for consideration)
W. Va. Wiggin v. Mankin, 65 W. Va. 219, 63 S. E. 1091. U. 'S. Cullen v.
Armstrong 209 Fed. 704. (Negotiation of a note taken for price does not
terminate lien. Can. Ford v. Hodgson, 3 Ont. L. Rep. 526.
3. Hardison v. Dennis Simmons Lbr. Co., 136 N. C. 173, 48 S. E. 588. Cf. Bryant
v. Bates, 39 S. W. 428, 19 Ky. L. Rep. 191 ; Wheeler v. Carpenter, 107 Pa. St. 271.
4. Ala. Lbr. Co v. Monk, 159 Ala. 318, 49 So. 248.
Ark. Griffin v. Anderson, Tully Co., 91 Ark. 292, 121 S. W. 297.
Ga. Shaw v. Fender, (Ga.) 74 S. E. 792; Lbr. Co. v. Gates, 70 S. E. 672; Rob-
erts v.Gress, 134 Ga. 271, 67 S. E. 802.
Ky. Cf. Leonard v. Holland, 79 S. W. 227, 25 Ky. L. Rep. 2009.
Minn. O'Connell v. Ward, 153 N. W. 865.
N. Y. Turner v. Bissell, 69 Misc. 167, 126 N. Y. Suppl. 234
N. C. Williams v. Lbr. Co., 154 N. C. 306, 70 S. E. 631; Whitfleld v. Lbr. Co.,
152 N. C. 211, 67 S. E. 512; Isler v. Lbr. Co. 146 N. C. 556, 60 S. E.
503; Warren v. Short, 119 N. C. 39, 25 S. E. 704; Whitted v. Smith,
47 N. C. 36. Cf. Goldsboro Lbr. Co. v. Hines Lbr. Co., 126 N. C.
554, 35 S. E. 458.
Pa. Sniffer v. Broadhead et al., 126 Pa. 260. Cf. Dexter v. Lathrop, 136 Pa.
St. 565, 20 Atl. 545; Boults v. Mitchell, 15 Pa. St. 364.
Tex. Havard v. Lbr. Co., (Tex. Civ. App.) 125 S. W. 928.
W.Va.Darnell v. Wilmoth, 69 W. Va. 704, 72 S. E. 1023.
5. Ala. Wright v. Lbr. Co., 186 Ala. 251, 65 So. 353; Stevenson v. Davis, 163
Ala. 562, 50 So. 1023. Cf. Yarborough v. Stewart, 67 So. 989 (sale
of saw timber does not include right to turpentine.)
Ark. Davis v. Stave Co., 113 Ark. 325. 168 S. W. 553.
Ga. Allison v. Wall, 121 Ga. 822, 49 S. E. 831.
S. C. Timber Co. v. Pegues, 93 S. C. 82, 76 S. E. 32.
Vt. Lbr. Co. v. Lyman, 94 Atl. 837; Fed. Lbr. Co. v. Middleby, 194 Fed. 817
114 C. C. A. 521.
DESCRIPTION OF TIMBER SOLD 157
eluded, 1 but a contract may provide otherwise. 2 If the
contract states that the timber sold is that which is suitable
for a particular purpose, trees unsuitable for that purpose
will not be included, 3 and the custom of the locality may
be offered in proof as to the suitability of a certain species for
the general purposes named in the contract. 4 However,
if certain trees are suitable for the purpose named the pur-
chaser may cut them even though he does not intend to use
them for that particular purpose. 5 When a certain
amount of timber, or all the timber, or certain species, or
classes of timber, upon a specified tract of land is sold, the
description of the timber 6 or of the land 7 need be only
1. Hardison v. Lbr. Co., 136 N. C. 173, 48 S. E. 588. Of. Lbr. Co. v. Frith, (Ky.)
118 S. W. 307; Olmstead v. Niles, 7 N. H. 522. But see Whitfleld v. Lbr. Co.,
152 N. C. 211, 67 S. E. 512 (bark excluded.)
2. Ayer & Lord Tie Co. v. Davenport, 82 S. W. 177, 26 Ky. L. Rep. 115.
3. Ala. See Jacobs v. Roach, 161 Ala. 201, 49 So. 576 (Reservation includes only
existing timber.)
Ga. Mills v. Ivey, 3 Ga. App. 557, 60 S. E. 299; Dickey v. Lbr. Co., 127 Ga.
460, 56 S. E. 481; Pennington v. Avera, 124 Ga. 147, 52 S. E. 324;
Martin v. Peddy, 120 Ga. 1079, 48 S. E. 420. See Shaw v. Fender,
138 Ga. 48 (No limitation in deed as to use.)
Ky. Lbr. Co. v. Coleman, 116 S. W. 266. Evans v. Dobbs, 112 S. W. 667,
33 Ky. L. Rep. 1053. (suitable at time of making contract.)
N. Y. Turner v. Bissell, 69 Misc. 167, 126 N. Y. Suppl. 234.
N. C. Herring v. Hardison, 126 N. C. 75, 35 S. E. 184.
S. C. Lbr. Co. v. Alderman, 80 S. C. 106, 61 S. E. 217.
Tex. Kelly v. Robb, 58 Tex. 377
U. S. Nelson v. Mfg. Co., 186 Fed. 489.
Can. Clark v. White, 3 Can. S. Ct. 309 (Good merchantable timber does not
mean first class timber.)
4. Gray Lumber Co. v. Gaskin, 122 Ga. 342, 50 S. E. 164; Whitfleld v. Rowland
Lbr. Co., 152 N. C. 211. See Allen v. Crank, 23 S. E. 772 (Va. 1895)
5. Gray Lbr. Co. v. Gaskin, 122 Ga. 342, 50 S. E. 164. But see Handcock v. Lbr.
Co., 127 Ga. 698, 66 S. E. 1021, ("Timber suitable for saw mill purposes"
covers only live timber) ; and Mills et. al. v. Ivey 3 Ga. App. 557 sale "for
saw mill purposes" does not convey a turpentine right.
Herring v. Hardison, 126 N. C. 75, 35 S. E. 184.
6. Ala. Kennedy Stave Co., v. Steel Co. 137 Ala. 401, 34 So. 372.
Ga. Clark v. Stowe, 132 Ga. 621, 64 S, E. 786; Perkins v. Wilcox 132 Ga. 166,
63 S. E. 831.
Ky. Day v. Ash'er, 141 Ky. 468, 132 S. W. 1035. (Description of timber con-
trols erroneous description of land.) Bradford v. Huffman, 88 S. W.
1057, 28 Ky. L. Rep. 18, Hayes v. McLin 115, Ky. 39, 72 S. W. 339.
(All merchantable.)
La. Lbr. Co. v. Hotard, 122 La. 850, 48 So. 286.
Mich. Haskell v. Ayers, 35 Mich. 89 (All merchantable)
N. C. Pitts v. Curtis 152 N. C. 615, 68 S. E. 189. Cf. Medlin v. Nav. Co., 145
N. C. 218,, 58 S. E. 1075.
Tenn. Dorris v. King, (ch. App. 1899.) 54 S. W. 683. (All merchantable) N. Y.
etc. Iron Co. v. Greene County Iron Co. 11 Heisk, 434.
W.Va. Darnell v. Wilmoth (1911) 72 S. E. 1023. (Particular words in granting
clause as to species will not be enlarged by subsequent general words
to include other species.)
U. S. cf. Lbr. Co. v. Hodge, 218 Fed. 778. (Estimates by arbitrators.)
7. Ga. Powell v. Lawson, 12 Ga. App. 350, 77 S. E. 183.
(Footnote 7 continued on next page)
158 CONTRACTS REGARDING GROWING TIMBER
such, as to make an unmistakable identification possible, but
if the language is ambiguous or uncertain the contract will
not be enforced. l If the description of the land on which
the trees stand is erroneously given the purchaser will
acquire no title to timber on land which did not belong to the
vendor, 2 or which belonged to only one of the vendors and
was not contemplated in the sale. 3 When the timber on a
certain piece of land or the amount needed for a certain pur-
pose is sold at a certain rate per piece or thousand feet, the
amount covered by the contract will not ordinarily be lim-
ited to the precise amount which the vendor agrees to de-
liver 4 but a contract for the sale of a certain number of
thousand feet or pieces which does not clearly contemplate
the sale of a certain lot or the amount needed for a specific
purpose will be held to embrace only the limited amount
more or less than that specified which might accidentally
be cut with the exercise of reasonable care. 5 The num-
ber of trees sold may prevail over the kinds named in the
contract. 6 The title to standing timber will not pass at
the time of the sale if some further action is necessary to
identify the trees sold. 7
In determining which trees were covered by a contract
under which cutting was deferred for a number of years
after the sale, the annual rings of growth exhibited by the
stump have been recognized judicially as a means of de-
termining the size of the trees at the time the contract was
(Footnote 7 concluded from preceding page)
Clarke v. Stowe, 132 Ga. 621, 64 S. E. 786, Perkins Co. v. Wilcox, 132
Ga. 166, 63 S. E. 831.
Ky. Struble v. Lewis, 76 S. W. 150, 25 Ky. L. Rep. 605.
N. C. Byrd v. Sexton, 161 N. C. 569, 77 S. E. 697. Tremaine v. Williams 144
N. C. 114, 56 S. E. 694.
Tex. Huber v. Hill, (Tex. Civ. App.) 130 S. W. 219. Hughes v. Adams, 55
Tex. Civ. App. 197, 119 S. W. 134.
W.Va. Harding v. Jennings 68 W. Va. 354, 70 S. E. 1.
U. S. Trust Co. v. Lbr. Co. 212 Fed. 229.
1. Watson v. Gross, 112 Mo. App. 615. 87 S. W. 104; Mizell v. Ruffln, 113 N. C.
21, 18 S. E. 72.
2. Caughie v. Brown, 88 Minn. 469, 93 N. W. 656. cf. Day v. Asher 141 Ky. 468,
132 S. W. 1035. (Description of timber controls over erroneous description
of land) Lbr. Co. v. Thompson, 108 Va. 612, 62 S. E. 358.
3. Jackson v. Hardin, 87 S. W. 1119, 27 Ky. L. Rep. 1110.
4. Bradford v. Huffman, 88 S. W. 1057, 28 Ky. L. Rep. 18.
5. United States v. Pine River Logging and Improvement Co., 89 Fed. Rep. 907,
6. Paalzow v. North Carolina Estate Co.. 104 N. C. 437, 10 S. E. 527.
7. Moss v. Meshew, 8 Busb. (Ky.) 187; Byasse v. Reese, 4 Mete. (Ky.) 372, 83 Am.
Dec. 481 ; Ayer and Lord Tie Co. v. Davenport, 82 S. W. 177, 26 Ky. L. Rep.
115; Barbard v. Poor, 21 Pick. (Mass.) 378; But See, McCoy v. Herbert.
9 Leigh (Va.) 548, 33 Am. Dec. 256.
DESCRIPTION OF TIMBER SOLD 159
made. x In fixing the measure of damages allowable for a
failure of a purchaser to take all timber suitable for particular
purposes on a tract, as the difference between the contract
price and the market value of the timber at the time the
action was brought, an Oregon court excluded evidence as
to the cost of construction of a road to the timber. 2 It has
been held that where a contract of sale fails because of the
inability of the vendor to convey title, the purchaser can re-
cover only the purchase money paid; 3 and that a pur-
chaser of lands with notice of the existing license of another
to cut timber from the land, cannot rescind the contract
without placing the parties in statu quo. 4
1. Shiffer v. Broadhead et al, 126 Pa. 260 (1889) ; Whitfleld v. Rowland Lbr. Co.
152 N. C. 211. Contra Patterson v. McCausland, 3 Bland (Md.) 69 (1830).
2. Mackey v. Olssen, 12 Ore. 429.
Cf. Lbr. Co. v. Crist, 87 Ark. 434, 112 S. W. 965; Veneer etc. Co. v. Hornaday
(Ind. App.) 96 N. E. 784.
3. Adams v. Hughes (Tex. Civ. App.) 140 S. W. 1163.
4. young v. Waggoner (Ind. App.) 98 N. E. 145.
CHAPTER XI
CONTRACTS REGARDING THE PREPARATION
AND MANUFACTURE OF TIMBER PRODUCTS
121. Contracts for the Logging of Timber.
Whether a contract is to be construed as one for the sale of
timber or merely for the cutting of it will depend upon the
terms of the agreement. ' l In a Missouri case in which a
party clearing land was to receive his pay from the timber
removed, it was held that the title to the severed trees was
in the one who severed, 2 but the terms of such contracts
ordinarily make them only contracts of employment, and
title to the timber remains in the owner of the land. 3
A contract for the cutting and delivering of all the timber
on a tract is performed when the land is cleared as closely
as prudent and economical lumbermen in the locality are
accustomed to clear. 4 If a contract provides that the
logger shall not be required to cut timber which involves an
expenditure of more than a certain per cent above the
ordinary cost of logging, he cannot be required to cut such
timber even though it be shown that he could cut it and yet
realize an average price equal to that fixed in the contract. 5
A requirement in the contract that the timber shall be
cut in a "workmanlike" manner will be construed to mean
that the work shall be performed as is customary among
prudent and reliable lumbermen in that locality. 6 In
1. Lamtxlen v West, 7 Del. Ch. 266, 44 Atl. 797. See Whistler v White (Ky.)
128 S. W. 297; Lbr. Co. v Herrick, 212 Fed. 834, 129 C. C. A. 288.
2. McAllister v Walker, 69 Mo. App. 496.
3. Jordan v. Jones, (Ga.) 35 S. E. 151; Gore v. Benedict (Tenn.) 61 S. W. 1054.
4. Seavey v. Shurick, 110 Ind. 494; Harper v. Pound, 10 Ind. 32; Nash v. Dris-
coe, 51 417; Maltby v. Plummer, 71 Mich. 578; Pallman v.
Smith, 135* Pa. St. 188, 19 Atl. 891. See Haines v. Gibson, 115 Mich. 131,
73 N. W. 126, Kangas v. Boulton, 127 Mich. 539, 86 N.W. 1043; Hubberd v.
Burton, 75 Mo. 65;
5. Wadleigh v. Shaw, 45 Iowa, 535. Cf. Savage v. Lbr. Co. 134 La. 629, 64 So.
491; Watkins v. Burdick, 176 Mich. 433, 142 N.W. 550; Owen v. Lbr. Co.
125 Minn. 15, 145 N. W. 402.
6. Button v. Russell, 55 Mich. 478; Grice v. Noble, 59 Mich. 515; Shores Lumber
Co. v. Stitt, 102 Wis. 450, 78 N. W. 562.
160
CONTRACTS FOR LOGGING TIMBER 161
logging contracts time is often of great importance, and
completion of the contract within the time named will be
required, 1 except where a provision in the contract, or very
exceptional conditions, excuses a full compliance within the
time specified. 2 If a contract does not specify the pre-
cise point of delivery of the logs, delivery to a place con-
venient to the logger and not unreasonable as to the needs
of the other party to the contract will be accepted as a ful-
filment ; 3 and a substantial compliance with requirements
as to the assorting of logs at the point of delivery will be
sufficient if the failure to comply strictly with the terms of
the agreement causes no loss or inconvenience to the other
party. 4
A logging agreement by which two parties agree to share
the expenses of the work embraces interest 5 board of
sealers 6 and other incidentals. A provision in an agree-
ment that the proceeds of certain trees to be cut and logged
by one party were to be divided, after the payment of cer-
tain expenses, with another party who claimed to be the
owner of the timber was held not to create a partnership. 7
Likewise an agreement by which one party furnished the
milt and other equipment for the manufacture of lumber
and the other party managed the business with an under-
standing that the latter should have one-half of the profits
of the business in return for his services was held a contract
of employment and not one creating a partnership relation-
1. Utley v. Wilcox Lbr. Co., 59 Mich. 263, 26 N. W. 488; See also Kentucky Lbr. Co.
v. Martin, 49 S. W. 191, 20 Ky. L. Rep. 1358; Clark v. Lbr. Co. 90 Miss. 479,43
So. 813.
2. Godkin v. Monahan, 83 Fed. 116, 27 C. C. A. 410; Goodrich v. Hubbard, 51 Mich.
62, 16 N. W. 232; See Kerslake v. Mclnnis, 113 Wis. 659, 89 N. W. 895.
3. Palmer v. Fogg, 35 Me. 368, 58 Am. Dec. 708. Cf. Godkin v. Monahan, 83 Fed
116; Cf. Asher v. Saylor (Ky.) 128 S. W. 71; Millard v. Hart, 158 Mich. 602, 123
N. W. 38; Noyes v. Marlott, 156 Fed. 753, 84 C. C. A. 409.
4. Maltby v. Plummer, 71 Mich. 578, 40 N. W. 3; but see O'Brien Lbr. Co. v. Wilkin-
son, 117 Wis. 468, 94 N. W. 337. Cf. Gabrielson v. Box Co. 55 Wash. 342; 104
N. W. 635; Stubbs v. Johnston, 38 U. C. Q. B. 466.
See also, Ashby v. Cathcart, 159 Ala. 474; 49 So. 75; Lbr. Co. v. Lbr. Co. (Ark.)
135 S. W. 796; Lbr. Co. v. Herrick, 212 Fed. 834, 129 C. C. A. 288.
Hill v. Harris (Ga. App.) 75 S. E. 518; Cline v. Hatcher, 144 Ky. 711, 135 S. W.
955.
5. Hopkins Mfg. Co. v. Buggies, 51 Mich. 474, 16 N. W. 862. Cf. Tie Co. v. Martin,
30 Ark. 100, 117 S. W. 1081; Veneer Co. v. Anderson, (Ky.) 105 S. W. 108.
6. Hackley v. Headly, 45 Mich. 569, 8 N. W. 511; Cf. Kieldsen v. Wilson, 77 Mich.
45.
7. Gulf City Shingle Co. v Boyles, (Ala.) 29 So. 800. Similar holdings in Gore v.
Benedict, (Tenn.) 91 S. W. 1054 and Jordan v. Jones, (Ga.) 35 S. E. 151.
162 PREPARATION AND MANUFACTURE
tion. x An arrangement under which one party furnished
the logs which another sawed and the lumber was shared
equally was also held not to make the parties liable as
partners. 2
122. Divisible Contracts and Partial Performance.
The payment of a logger for a certain integral part of the
whole logging operation, as specified in the contract of em-
ployment, does not release him from a performance of the
other work covered by the contract. 3 However, if a logger
is released from his contract upon condition of ids accepting
a certain sum when the logs are marketed for the part al-
ready performed, he may recover such sum even though the
logs are destroyed by fire before they are delivered to the
marketing place. 4 A logger may recover reasonable com-
pensation for extra labor performed at the request of the
other party 5 and if logs which do not comply with the re-
quirements of the contract are accepted, he may recover a
reasonable amount for them. 6
Where a contract for the cutting of logs provided that
the owner of the timber should determine what logs were
suitable for the market to which they were to go, the failure
of the owner's agent to designate all the logs that should have
been taken was held not to entitle him to relief for a breach
1. Thornton v. McDonald, (Ga.) 33 S. E. 680.
2. Thornton v. George, (Ga.) 33 S. E. 633.
For illustrations of the law of partnership as applied in timber cases see, Williams
v. Hendricks, 115 Ala. 277, 22 So. 331.
Cobb v. Benedict, .(Colo.) 62 Pac. 222; Fay and Eagan Co. v. Ouachita Ex-
celsior etc. Co. (La.) 26 So. 386;
Citizen Xafl Bank v. Weston, (N. Y.) 56 N. E. 494;
Capital Lumbering Co. v. Learned, (Ore.) 59 Pac. 454;
Williams v. Meyer, (Tex. Civ. App.) 64 S. W. 66;
Jennings v. Pratt, (Utah) 56 Pac. 951;
Dufur v. Paulson, (Wis.) 85 X. W. 965;
Cf. Griffiths v. Blackwater Boom & Lbr. Co. (W. Va.) 33 S. E. 125.
3. Keystone Lbr. Etc. Mfg. Co. v. Dole, 43 Mich. 370; Hartley v. Decker, 89 Pa. St;
470; Bean v. Blinker, 68 Vt. 72, 33 Atl. 1068; See Bishop v. White, 68 Me. 104.
Hopkins v. Sanford, 38 Mich. 611; Richardson v. Single, 42 Wis. 40. Cf. Loree v.
Mfg. Co. 134 Wis. 173; 114 N. W. 449.
4. Lupton v. Freeman, 82 Mich. 638, 40 N. W. 1042; Bianchi v. Maggini, 17 Nev.
323 (charcoal burned) ; Cf. Owen v. Lbr. Co. 125, Minn. 15, 145 N. W. 402.
5. McCann v. Doherty, 98 Wis. 335, 73 X. W. 782 (Bark marking.)
6. Bresnahan v. Ross, 103 Mich. 483, 61 X. W. 793.
For general interpretation of logging contracts see: Griffin v. Anderson-Tully Co. ;
91 Ark. 292, 121 S. W. 297; Stave Co. v. Lbr. Co., 138 Ky. 372, 128 S. W. 96.
Coal Etc. Co. v. Phillips, 100 S. W. 302, 32 Ky. L. Rep. 589: McMillian v. Mfg.
Co., 125 La. 854, 51 So. 1013; Lbr. Co. v. Logging Co., 103 Minn. 471, 115
N. W. 4O6; Murphy v. Cooper, 41 Mont. 72, 108 Pac. 576; Fox v. Fitzpatrick,
19O X. Y. 259, 82 X. E. 1103.
DIVISIBLE CONTRACTS
of contract, in the absence of any evidence as to bad faith
on the part of either the logger or the owner's agent. 1 How-
ever, in the same jurisdiction it was held in another case that
the partial acquiescence by a logger in the direction of the
owner of the timber that timber covered by the contract be
left uncut, did not release the logger from liability for any
loss sustained because of his failure to put in all of the logs,
when he sought damages for a breach of contract by the
owner; 2 and in still another case that the action of an
owner in preventing the logger from cutting all merchant-
able timber on a tract, did not release the sureties of the
logger, where the terms of the contract gave to the owner
the decision as to what constituted merchantable timber. 3
The measure of damages for the failure of a logger to remove
all the timber from certain land has been held to be the dif-
ference between the market value of the timber left standing
and the contract price of timber at the time of the breach
of contract by the logger. 4
If the contract does not leave to the owner the determi-
nation of what timber is to be cut, and the action of the
logger in failing to cut timber is not a mere acquiescence in
the advice of the owner or a yielding to his objection but is
rather a compliance with a positive direction or compelling
action on the part of the owner, the owner will be liable for
the difference between the contract price and what it would
have cost the logger to fully complete his contract. 5 And
in such an action, evidence as to the profits realized by the
contractor on anotlier contract carried out after the pre-
vention of the execution of the one in suit has been rejected
as incompetent in mitigation of damages. 6
Where an agreement is made that one party shall advance
money or furnish supplies for the cutting, hauling, driving
1. Maltby v. Plummer, 71 Mich. 578.
2. McGregor v. Ross, 96 Mich. 103, 101 Mich. 575. But see Blood v. Herring
(Ky.),61 S. W. 273.
:i. Haines v. Gibson, 115 Mich. 131.
4. Stillwell v. Paepcke-Leicht Lbr. Co. 73 Ark. 432, 84 S. W. 483, 108 Am. St. Rep. 42.
See also Anderson v. Lbr. Co. 121 Ga. 688, 49 S. E. 725; Lbr. Co. v. Griggs, (Ky.)
118 S. W. 920; Smith v. Holmes, 167 N. C. 561, 83 S. E. 833; Wiley v. Lbr. Co.
156 N. C. 210, 72 S. E. 305; Heyser v. Hunter, 118 N. C. 964, 24 S. E. 712;
Young v. Lloyd, 65 Pa. 199; Larson v. Cook, 85 Wis. 564, 55 N. W. 703.
5. Allen v. Murray, 87 Wis. 41; Corbett v. Anderson, 85 Wis. 218; Nash v. Hoxie,
59 Wis. 384; Salvo v. Duncan, 49 Wis. 151.
6. Allen v. Murray, 87 Wis. 41. But see Dunn v. Johnson, 33 Ind. 54, 5 Am. Rep. 177.
164 PREPARATION AND MANUFACTURE
or sawing of logs, while the advances or supplies are to be
used by the other party in the prosecution of the enterprise,
the title to such advances or supplies will vest in the party
receiving them unless there is a contractual or statutory
provision to the contrary. 1 However, performance of the
work for which the advances were made can be enforced, 2
and a failure by the party who agreed to make the advances
to fulfill his agreement will render him liable in an amount
equal to the profit which the other party would have realized
if the advances had been made, 3 and for additional ex-
penses directly due to the failure of the first party to furnish
the supplies. 4
In a suit under a contract by which a logger agreed to cut,
haul, raft and deliver logs at a certain market on condition
that he receive one-half of the proceeds from the sale of the
logs at the point of delivery, it was held that such an agree-
ment did not establish a partnership, that the logger could
not lawfully sell the logs, and that the owner of the land
from which the timber was taken might maintain replevin
for the logs. 5 It has been held that the failure of the
owner of timber to pay installments as agreed under a con-
tract for cutting, booming, and delivering logs did not
authorize the logger to refuse to proceed further and en-
title him to recover the profits which he would have earned
if he had fully performed, since the default did not in itself
constitute a denial of the right of the contractor to con-
tinue and recover for all services rendered. 6 Under such
circumstances the contractor may continue and complete
performance, or he may abandon the contract and recover
for what he has done before the default occurs. A contract
for the delivery of a certain amount of logs each month for
a term of eight years, with payment by installments as de-
1. Gavigan v. Evans, 45 Mich. 597; See Woodstock Iron Co. v. Reed, 81 Ala. 305
(charcoal) ; Andrew v. Jenkins, 39 Wis. 476, and Crane v. Williams (Ky.) 63
S. W. 610 (In which uncertain terms of written contract explained by oral testi-
mony as to circumstances.) See Swim v. Shireff, 20 N. Brunsw. 25; and Cf.
Shaw v. Stairs, 37 N. Brunsw. 593.
2. Hopkins v. Sanford, 38 Mich. 611.
3. Mason v. Alabama Iron Co., 73 Ala. 270 (charcoal) ; Graham v. McCoy, 17 Wash.
63; Skagit River Etc. Co. v. Cole, 2 Wash. 57.
4. Salvo v. Duncan, 49 Wis. 151.
5. Gore v. Benedict (Term.) 61 S. W. 1054; See also Jordan v. Jones, (Ga.) 35 S. E.
151 (Logs not subject to levy as property of logger.)
6. Beatty v. Howe Lbr. Co. (Minn.) 79 N. W. 1013.
APPLICATION OF GENERAL PRINCIPLES 165
livered and with stipulations and guarantees as to failures
and breaches of its terms, none of which defaults would
necessarily end the contract, was held to be an entire con-
tract, and a suit on the ground of a default and a breach
was held to act as a bar to subsequent suits. : Under a
completed contract requiring one party to cut, haul and
deliver from lands of the other party an average of 40,000
feet of logs each day for a period of two years, suit was
brought for the damages sustained by the logger through the
alleged failure of the manufacturing company to furnish
timber as needed for prompt cutting. It was held that the
company was obligated to furnish the timber for cutting
at the rate named in the contract even though the contract
did not expressly so state, but that the logger might have
lost his right to damages through monthly settlements. 2
A contract requiring one party to cut and deliver to the
other party a certain amount of pulp wood each year for a
period of ten years, with an option of the paper company
to extend the contract an additional ten years, and with an
agreement by the first party not to sell lands or wood so as
to jeopardize its ability to fulfill the contract was held to be
one for the sale of chattels, and a prayer for a decree ordering
a specific performance was denied, the court saying that
the supervision of such a transaction was too great a burden
for it to assume. 3
123. The application of General Legal Principles
to Contracts for the Cutting of Timber. Under an
agreement by which two parties were to furnish the supplies
and labor necessary to cut timber from land which was
supposed to belong to a third party and the profits were to
be shared, the first parties entered upon the work; but later
finding the third party's title apparently defective they
attempted to acquire an adverse title. In a subsequent
action by them for their expenditures upon the timber, the
court held 'that they were not in a position to ask equitable
relief. 4 In an action on a contract for the peeling of bark
1. Bucki & Son Lbr. Co. v. Atlantic Lbr. Co., 109 Fed. 411.
2. Camp v. Wilson (Va.) 33 S. E. 591.
3. St. Regis Paper Co. v. Santa Clara Lbr. Co., 67 N. Y. Suppl. 149.
4. Pharr v. Broussard (La.) 30 So. 296. Cf. Harris v. Amoskeag Lbr. Co. (Ga.)
29 S. E. 302 (Company sought to escape payment for timber, by assertion of
paramount title after it had been purchased and cut.) See Tie Co. v. Martin,
90 Ark. 100, 117 S. W. 1081, and Veneer Co. v. Anderson, 105 S. W. 108, 32,
Ky. L. Rep. 7. (Sharing expenses.^
166 PREPARATION AND MANUFACTURE
at a certain rate per cord, a New Hampshire court held that
the one who had performed the labor was entitled not only
for the amount peeled upon the farm named in the con-
tract, but also for that peeled by mistake upon an adjacent
farm, no demand having been made for the trespass and the
other party having accepted the bark and derived advantage
from the labor. l Where a dispute had arisen as to the
ownership of logs, and a manufacturing company had
agreed to use the logs and hold the proceeds "as the logs
themselves" pending a decision of the title, the court re-
fused to read into the contract an agreement that the party
taking the logs should be compensated for the care of them. 2
It has been held that a contract for the cutting of timber
survives the death of either party, 3 and that in an action for
the breach of a contract providing for the delivery of a
minimum and a maximum amount during a certain period,
the logger was entitled to introduce evidence to show that
it was impracticable to deliver the minimum amount within
the first half of the period specified, as demanded by the
other party. 4 In accordance with the general rule, evi-
dence which is immaterial to the question at issue will not
be admitted. 5 Questions as to the abandonment of a con-
tract by a logger, 6 substantial compliance with the terms
of a contract requiring a cutting of all logs, 7 the suitable-
ness of the season for logging operations, 8 the necessity of
certain equipment, 9 and other similar questions will be sub-
mitted to the jury.
1. Maltais v. Foss (N. H.) 44 Atl. 599.
2. Rowell v. Lewis (Me.) 49 Atl. 423.
3. Billing's Appeal, 106 Pa. St. 558. But compare Dickinson v. Calahan's Adm'rs
19 Pa. 227 (1852) (contract for five years did not survive) and McCoy v. Fraley
(Ky.) 113 S. W. 444.
4. Wager Lbr. Co. v. Sullivan Logging Co., 120 Ala. 558, 24 So. 949. Cf. Bement
v. Claybrook, 5 Ind. App. 193, 31 X. E. 556; Lbr. Co. v. Logging Co., 103 Minn.
431, 115 N. W. 406; Carpenter v. Medford, 99 N. C. 495, 6 S. E. 785, 6 Am. St.
Rep. 535.
As to sufficiency of evidence, see Starnes v. Boyd (Ark.) 142 S. W. 1143; Lacy v.
Johnson, 58 Wis. 414, 17 N. W. 246; Tie Co. v. Davenport, 82 S. W. 177, 26
Ky. L. Rep. 115.
5. Garrison v. Glass, 139 Ala. 512, 36 So. 725; Thornton v. Savage, 120 Ala. 449. 25
So. 27; O'Connell v. Ward (Minn.) 153 N. W. 865; Cf. Brooks v. Bellows, 179
Mich. 421, 146 N. W. 311.
6. Greenwood v. Davis, 106 Mich. 230, 64 N. W. 26.
7. Pallman v. Smith, 135 Pa. St. 188, 19 Atl. 891.
8. Smith v. Scott, 31 Wis. 437.
9. Carstens v. Earles, 26 Wash. 676, 67 Pac. 404.
SAWING OF LUMBER 167
124. Contracts for the Sawing of Lumber. The
interpretation of contracts for the sawing of lumber follow
general legal principles. : Failure to deliver logs for sawing
as agreed in a contract, 2 as well as the failure to saw those
delivered, 3 will give rise to an action for a breach of con-
tract; and the measure of damages will be the actual loss
sustained by the party injured including reasonably proxi-
mate prospective profits. 4 However, if the contract does
not bind a party to deliver any fixed amount during a cer-
tain period, no damages can be obtained by the mill owner
for the failure of the other party to deliver logs, though the
contract required him to saw all that should be delivered
during that time. 5 Recovery of the contract price for the
timber actually sawn, less any damages suffered by the
other party, may be obtained by one who has failed to saw all
logs covered by a contract. 6 Settlement for sawing upon
the basis of a certain measurement which was agreed upon
cannot be enforced if the measurement is shown to have
been fraudulent. 7 When logs are delivered at a custom
mill for sawing at a specified price, the mill operator, as a
bailee, must use ordinary care in manufacturing the logs, 8
and account for all logs delivered or show that any loss was
due to no fault on his part. 9 In interpreting a contract
1. Fletcher v. Prestwood, 150 Ala. 135, 43 So. 231; Lbr. Co. v. Clement, (Ark.) 135
S. W. 343; Lbr. Co. v. Cypress Co. 105 Ark. 421, 151 S. W. 275; Hale v. Trout.
35 Calif. 229: Hill v. Harris (Ga. App.) 75 S. E. 518; Lbr. Co. v. Tie Co. (Ky.)
143 S. W. 581; Toler v. Wheeler-Holden Co., 144 Ky. 829, 139 S. W. 1067;
Wheeler-Holden Co. v. Reynolds, 140 Ky. 17, 130 S. W. 803; Tompkins v.
Gardner Etc. Co., 69 Mich. 58, 37 N. W. 43; Wilcox v. Allen, 36 Mich. 160;
Phillips v. Raymond, 17 Mich. 287; Wayland v. Johnson, 130 Mo. App. 80, 108
S. W. 1113; Dart v. Bean, 75 N. H. 606, 76 Atl. 172; Hurd v. Cook, 75 N. Y.
454; Penfleld v. Dunbar, 64 Barb. (N. Y.) 239; Bowman v. Blankenship, 157
N. C. 376, 72 S. E. 994; Wilson v. Crowell, 48 Pa. St. 58; Maust v. Creasy, 42
Pa. S. Ct. 633; Hunter v. Felton, 61 Vt. 359, 17 Atl. 739; Dennis v. Montesano
Nat. Bank, 38 Wash, 435, 80 Pac. 764; Fibre Co. v. Lbr. Co. 132 Wis. 1, 111
N. W. 237; Clark v. Clifford, 25 Wis. 597; Barker Etc. Lbr. Co. v. Edw. i lines
Lbr. Co., 137 Fed. 300; Mill Co. v. Lbr. Co., 38 New Bnmsw. 292.
2. Bassett v. Child, 11 111. 569; Dunn v. Johnson, 33 Ind. 54, 5 Am. Rep. 177;
Whidden v. Belmore, 50 Me. 357; Stimpson v. Freeman, 38 Mich. 314; Freden-
burg v. Turner, 37 Mich. 402; Snell v. Remington Paper Co.. 102 N. Y. App.
Div. 138, 32 N. Y. Suppl. 343. Cf. Hill v. Harris (Ga. App.) 75 S. E. 518;
Little v. Barry, 125 Mich. 211, 84 N. W. 67; Toomey v. Atyoe, 95 Tenn. 373,
32 S. W. 254.
3. Fletcher v. Priestwood, 143 Ala. 174, 38 So. 847; Stephenson v. Collins, 57 W. Va.
351, 50 S. E. 439.
4. Dunn v. Johnson, 33 Ind. 54, 5 Am. Rep. 177.
5. Harrison & Garrett v. Wilson Lbr. Co., (Ga. 1903) 45 S. E. 730.
6. Grice v. Noble, 66 Mich. 700.
7. Youngs v. Johnson, 82 Wis. 102, 51 N. W. 1127.
8. Rhodes v. Holladay-Klotz Land Etc. Co., 105 Mo. App. 270, 79 S. W. 1145.
9. Gleason v. Beer, 59 Vt. 581, 10 Atl. 86, 59 Am. Rep. 757.
168 PREPARATION AND MANUFACTURE
for the sawing of lumber, which provided that the sawing
should be done in a workmanlike manner and in specified
sizes, and that the mill operator should pay for all lumber
spoiled in the sawing, a New York court held that "spoiled
lumber" did not include lumber that was not sawn the
right size, but that in an action for the price of sawing, the
owner of the lumber might have a set-off to the amount of
the damages due to unworkmanlike sawing, even though
he had with protest received the lumber sawn to the wrong
size. * Custom in the jurisdiction where the case arises
will determine largely the meaning of the phrase "work-
manlike manner" as used in a contract for the sawing of
lumber. 2 But in a suit on a contract in which one party
agreed to saw the logs of the other as fast as he could, the
court declined to admit evidence of a custom to excuse his
delay in sawing plaintiff's logs until he had sawn an' entire
raft of another party. 3 Storage charges for lumber left
in the mill yard for a considerable time after the sawing
have been denied, 4 and the admission of parol evidence
inconsistent with the written terms of a contract for sawing
has been refused. 5 A mill yard has been legally defined
as a place devoted to the storage of logs to be sawn and of
manufactured lumber. 6
125. Liens for Expenditures and Services in the
Manufacture of Timber Products. The common law
.rule that any bailee for hire was entitled to a hen on the
goods received for services performed which enhanced their
value is applicable to logs, lumber and other timber pro-
ducts. Thus one owning or operating a sawmill has a lien,
in the amount of the charge for sawing, upon the lumber
sawn from logs delivered to him for sawing, irrespective of a
special agreement for a lien. 7 This hen for the full charge
1. Harris v. Rathbun, 2 Abb. App. Dec. (N. Y.) 326, 2 Keyes 312. (There was a
dissenting opinion.)
2. Button v. Russell, 55 Mich. 478; Shores Lbr. Co. v. Stitt, 102 Wis. 450.
3. Mowatt v. Wilkinson (Wis.) 85 N. W. 661.
4. Hunter v. Felton, 61 Vt. 359.
5. Denton v. Whitney, 31 Ohio St. 89.
6. People v. Kingman, 24 N. Y. 559, 562.
7. Holderman v. Manler, 104 Ind. 118; Palmer v. Tucker, 45 Me. 316: Hughes v.
Tanner, 96 Mich. 113, 55 X. W. 661 : Phillips v. Freyer, SO Mich. 254, 45 X. W.
81: Chadwich v. Broadwell, 27 Mich. 6; Jacobs v. Knapp, 50 N. H. 71; Mount
v. Williams, 11 Wend. (N. Y.) 77; Morgan v. Congdon, 4 X*. Y. 552; Pierce v.
Sweet, 33 Pa. St. 151; Walker v. Cassels, 70 S. C. 271, 49 S. E. 862; Arians v.
Brickley, 65 Wis. 26, 26 N. W. 188, 56 Am. Rep. 611. See Germain v. Central
Lbr. Co., 116 Mich. 245, 74 N. W. 644; Crouch v. Buennan, 6 Pa. Dist. 357.
LIENS UPON TIMBER PRODUCTS 169
for all lumber sawn, or for the balance due, may ordinarily
be enforced against any portion of the logs or lumber, re-
maining in the possession of the one operating the mill. l
However, under an agreement in New York by which one
party was to deliver logs to another to be sawn and the
latter was to retain one-half of the lumber for the sawing, it
was held that the owner of the logs retained possession of all
logs until all were manufactured into lumber, and that he
might maintain trover for the value of all the logs and
lumber, if the sawyer converted any part of the lumber
before he had fully performed his contract. 2 Raftsmen
who receive logs or lumber for the purpose of floating the
same to market have been held to have a common law hen
on the goods received for the value of the services per-
formed. 3 The same principal should be applied when an
individual or a company receives loose logs under a con-
tract for floating them to market. 4
A common law hen is dependent upon possession, and the
ordinary contracts providing for the cutting and hauling of
timber from land owned by another, and many of those for
the driving of logs, do not give the one performing such
services the possession essential to the maintenance of a
common law lien, 5 nor does the one furnishing money ad-
vances or supplies for the cutting of timber have a Hen on
the logs in the absence of a statute or a specific agreement
therefor. 6 One who had cut timber from the land of
another and hauled the logs to his own mill for sawing was
held to have a lien for his labor, both upon the lumber
sawed and on the logs not yet manufactured, 7 however
1. Holderman v. Manier, 104 Ind. 118; Partridge v. Dartmouth College, 5 N. H. 286;
Morgan v. Congdon, 4 N. Y. 552.
2. Pierce v. Schenck, 3 Hill (N. Y.) 28. See Wisconsin Statutes, 1913; sec. 4447 im-
posing a penalty for the non-delivery of lumber sawn on shares.
3. Iron etc. Co. v. Nester, 147 Mich. 599, 111 N. W. 177; Farrington v. Meek, 30
Mo. 578, 77 Am. Dec. 627; Mercantile etc. Co. v. Galloway, 156 Fed. 504.
4. Jacobs v. Knapp, 50 N. H. 71.
5. Cincinnati Cooperage Co. v. Woodyard (Ky.) 54 S. W. 831; Oakes v. Moore, 24
Me. 214, 41 Am. Dec. 379; Haughton v. Busch, 101 Mich. 267, 59 N. W. 621,
Gamble v. Gates, 97 Mich. 465, 56 N. W. 855; O'Clair v. Hale, 35 N. Y. Appl.
Div. 77, 54 N. Y. Suppl. 388 (Aff'm'g 25 Misc. (N. Y.) 31, 54 N. Y. Suppl. 386) ;
Fitzgerald v. Elliott, 162 Pa. St. 118, 29 Atl. 346, 42 Am. St. Rep. 812. Com-
pare: Anderson v. Tingley (Wash.) 64 Pac. 747 (Possession surrendered by
contract and lien lost.)
But see Farrington v. Meek, 30 Mo. 578, 77 Am. Dec. 627; Burgett v. Bissell, 14
Barb. (N. Y.) 638; Ottawa Bank v. Bingham, 8 Quebec Q. B. 359.
6. Andrew v. Jenkins, 39 Wis. 476; cf. Bogard v. Tyler (Ky.) 55 S. W. 709.
7. Palmer v. Tucker, 45 Me. 316. See also Germain v. Central Lbr. Co., 116 Mich.
245, 74 N. W. 644; Hughes v. Tanner, 96 Mich. 113, 55 N. W. 661.
170 PREPARATION AND MANUFACTURE
such a lien will be lost if the one entitled thereto voluntarily
parts with possession. 1 A lien for either skilled or un-
skilled labor, or for the furnishing of supplies or money
advances in connection with the cutting, hauling or driving
of logs may be obtained by contract; 2 but a lien cannot
arise in favor of one who was a stranger to a contract with
the owner of the logs or timber, 3 or who cut the timber
without the consent of the owner. 4 If a contract con-
templates a lien, it does not become effective until the ser-
vice to be performed has substantially been completed, 5
especially if the agreement requires the delivery of the logs
or lumber prior to the specified time of payment. 6
126. Statutory Liens. In many states there are
statutes giving a lien on logs or lumber to one who advances
money, furnishes supplies, or performs labor in connection
with the cutting, hauling, driving, booming or sawing of
logs. 7 Some of these laws are very comprehen-
1. Walker v. Cassels, 70 S. C. 271, 49 S. E. 862.
2. Oakes v. Moore, 24 Me. 214, 41 Am. Dec. 379; Haughton v. Busch. 101 Mich. 267,
59 N. W. 621; Strong v. Krebs, 63 Miss. 338; Mount v. Williams, 11 Wend
(N. Y.) 77; Smith v. Scott, 31 Wis. 420. But see Boody v. Goddard, 57 Me.
602; McMaster v. Merrick, 41 Mich. 505, 2 N. W. 895.
3. Jacobs v. Knapp. 50 N. H. 71.
4. Hill v. Burgess, 37 S. Car. 604; Dresser v. Lemma, 122 Wis. 387, 100 N. W. 844.
5. Haughton v. Busch, 101 Mich. 267, 59 N. W. 621; Hodgdon v. Waldron, 9 X. H.
66. But see Kangas v. Boulton, 127 Mich. 539, 86 N. W. 1043, and Smith v.
Scott, 31 Wis. 420.
6. Stillings v. Gibson, 63 N. H. 1 ; see Au Sable River Boom Co. v. Sanborn, 36 Mich.
358; Rhodes v. Hinds, 79 N. Y. App. Div. 379, 79 N. Y. Suppl. 437.
7. Ala. Code of 1907, Sec. 481S-21 (Boomage.)
Ariz. Revised Statutes 1913, sec. 3657, p. 1256.
Ark. Digest of Statutes, 1904, Kirby, Sec. 4089, 4995 and 6526.
Calif. General Laws 1914, Henning & Deering, p. 925; Civil Code 1905, Keri
Sec. 3065.
F!a. Compiled Laws 1914, Sec. 2197 (cutting and rafting), sec. 2208 (advances).
Ga. Annotated Statutes 1914, Park; sec. 1838 (boomage), hauling sec. 3329
Cf. 3358 (on sawmill.)
Idaho Revised Code 1908, sec. 5125-5140. Cf. sec. 1504.
Iowa Code of 1897, sec. 4415 (on rafts).
La. Revised Laws 1904, Wolff, p. 1331 (supplies. Laws 1882, p. 47; labor. Laws
1890, p. 8.)
Me. Revised Statutes 1903, p. 811. Cf. p. 423.
Mich. Annotated Statutes 1913. Howell. 2d Ed., sec. 13843-13858 (Cf. 4137 et.
seq. ; 7378 et seq.)
Minn. General Statutes 1913, Tiffany, sec. 7058 and 7072-7076.
Miss. Cf. Code. 1906, sec. 4973-4974.
Mo. Annotated Statutes 1906, sec. 1494-1496 (to booming and rafting com-
panies.)
N. H. Public Statutes 1901, Chase, ch. 141, sec. 12, p. 452 and sec. 13 as Ann'd
Suppl. 1913, p. 329.
Mont. Revised Code 1907, sec. 5819-5836 (Act. Feb. 20, 1899) Cf. 5816-18.
N. M. Annotated Statutes. 1915, sec. 3373.
(Footnote 7 continued on next page)
STATUTORY LIENS 171
sive, 1 while others apply only to one or two of the classes of
service named above. These statutes are sustained by the
courts. 2 The lien will be given preference over nearly all
claims and be satisfied out of any part of the material on
which the labor or service was expended. 3 Under such
statutes legal possession at the time of the performance of
the service is unnecessary, 4 but attachment of the timber
must be made before the lien can be enforced. 5 As the
statutes are remedial they have been construed liberally in
favor of those for whose benefit they were enacted. 6 Al-
though a lien statute will not apply to a contract entered
(Footnote 7 concluded from preceding page)
Nev. Rev. Stats. 1912, sec. 2230 (cutting) ; cf. sec. 1440 (Ref. to act Mar. 3, 1866,
p. 198, which is quoted in Gen. St. 1885, sec. 1064-1071, giving lien for
driving logs.)
Ore. Laws of 1910, Lord, sec. 7461-7464.
Vt. Cf. Public Statutes 1906, sec. 2654-2656.
Wash. Codes & Statutes, 1910, Rem. & Bal., sec. 1162-1181 (Laws 1877, p. 217.)
Wis. Statutes 1913, sec. 3329; see also sec. 3337-3342 b.
Wyo. Compiled Statutes, 1910, Mullen, sec. 3767-3768.
1. See Lawler Bankruptcy Case, 110 Fed. 135 (Holding a traveling salesman for a
lumber company had a lien for his services.) Carver v. Bagley, 79 Minn. 114, 81
N. W. 757 (In favor subcontractors as well as contractors.)
2. Spofford v. True, 33 Me. 283, 54 Am. Dec. 621; Sullivan v. Hall, 86 Mich. 7;
Craddock v. Dwight, 85 Mich. 587; Reilly v. Stephenson, 62 Mich. 509, 29
N. W. 99; Shaw v. Bradley, 59 Mich. 199, 26 N. W. 331; Hoffa v. Person, 1 Pa.
Supr. Ct. 357; Fitch v. Applegate (Wash.) 64 Pac. 147; Winslow v. Urquhart,
39 Wis. 260; Munger v. Lenroot, 32 Wis. 541; Akers v. Lord, 67 Wash. 179, 121
Pac. 51. But see Bradley v. Cassels, 117 Ga. 517, 42 S. E. 857; Jacobs v.
Knapp, 50 N. H. 71; Quimby v. Hazen, 54 Vt. 132; Townsend Sav. Bank v.
Epping, 24 Fed. Gas. No. 14, 120, 3 Woods 390.
3. Austill v. Hieronymus, 117 Ala. 620, 23 So. 660; Akeley v. Mississippi, etc. Boom
Co. 64 Minn. 108, 67 N. W. 208, (Waived lien) ; Martin v. Wakefleld, 42 Minn.
176, 43 N. W. 966, 6 L. R. A. 362; Proulx v. Stetson etc. Mill Co., 6 Wash. 478,
33 Pac. 1067; Blonde v. Menominee Bay Shore Lbr. Co., 106 Wis. 540, 82 N. W.
552; De Morris v. Wilbur Lbr. Co. 98 Wis. 465, 74 N. W. 105.
4. Quimby v. Hazen, 54 Vt. 132.
5. Griffin v. Chadbourne, 32 Minn. 126, 19 N. W. 647.
But see, Waterson v. Getchell, 5 Me. 435, 17 Am. Dec. 251 (Actual notice) and
Steele v. Schricker, 55 Wis. 134, 12 N. W. 396 (Constructive notice), holding
that a purchaser of logs with notice of the contract under which they were cut
takes the logs subject to a lien for the cutting.
6. Davis v. Cox, 13 Ga. App. 509, 79 S. E. 383 (No Lien on trees) ; Lbr. Co. v. Hales,
11 Ga. App. 569, 75 S. E. 898; Haralson v. Speer, 1 Ga. App. 573, 58 S. E. 142.
Murphy v. McGough, 105 Ga. 816, 31 S. E. 757 (lien to mill owner); Wiggins
v. Houghton, 89 Mich. 468, 50 N. W. 1005; Carver v. Bagley, 79 Minn. 114, 81
N. W. 757; Breault v. Archambault, 64 Minn. 420, 67 N. W. 348; 58 Am. St.
Rep. 545; Hopkins v. Rays, 68 N. H. 164; Robins v. Paulson, 30 Wash. 459,
70 Pac. 1113; Kendall v. Hynes Lbr. Co.. 96 Wis. 659, 71 N. W. 1039; Johnson
v. Iron Belt Min. Co., 78 Wis. 159, 47 N. W. 363; Jacubeck v. Hewitt, 61 Wis.
96; Collins v. Cowan, 52 Wis. 634; Kollock v. Parcher, 52 Wis. 393, 9 N. W.
67; Winslow v. Urquhart, 39 Wis. 260. But see Bierly v. Royse, 25 Ind. Appl.
202, 57 N. E. 939; Lord v. Woodward, 42 Me. 497; Clark v. Adams, 33 Mich.
159; Dallaire v. Gauthier, 24 Can. Sup. Ct. 495. See also Rowley v. Conklin,
89 Minn. 172, 94 N. W. 548 (holding such a law not applicable to public prop-
erty), and Spalding Lbr. Co. v. Brown, (111.) 49 N. E. 725 (statute covering
public property.) Hutchins v. Blaisdell, 106 Me. 92, 75 Atl. 291; Becherl v.
Pluchak (Mich.) 137 N. W. 101 ; Sumpter v. Burnham, 51 Wash. 599,99 Pac. 752
172 PREPARATION AND MANUFACTURE
into before its passage, l it has been held that an amend-
ment as to the time or manner of enforcement of a hen does
apply to liens which arose before the enactment of such
provisions. 2 Some state statutes for this class of liens
specifically authorize assignment, 3 but it has been held
that a lien is assignable even where the statute does not so
provide, 4 especially if the hen has been perfected by the re-
quired filing of notice. 5
127. Classes of Service Covered by Statutes.
Whether a hen for any particular work in connection with
the logging and manufacture of timber can be sustained
will depend largely upon the wording of the statute. Ex-
cept in the few states in which there is a comprehensive
statute, only special services are protected, and in many
states there are statutory liens which are restricted to the
cutting and delivering of logs and other distinct provisions
as to the manufacture of logs into lumber and other pro-
ducts. In some states a special lien on the logs is given one
who furnishes money or supplies for the cutting, hauling or
driving of logs; 6 and in others a lien on a sawmill or its pro-
duets is given one who furnishes timber, logs or provisions
for the operation of the mill. 7 Statutes giving a hen on a
sawmill for timber and supplies furnished have been held
not to comprehend the furnishing of money, machinery and
labor, 8 nor to afford a lien for the purchase price of stum-
1. Shuffleton v. Hill, 62 Cal. 483; Bass v. Williams, 73 Mich. 208. 41 X. W. 229.
2. Palmer v. Tucker, 45 Me. 31G; McQuester v. Morrill. 12 Wash. 335. 41 Pac. 56;
Paine v. Gill, 13 Wis. 561. But see Gapneau v. Port Blakely Mill Co., 8 Wash.
467 (Lien right not lost by repeal).
3. See Griffin v. Chadbourne, 32 Minn. 126, 19 N. \V. 647; Dirimple v. McDonald
and Dells Lbr. Co., 101 Wis. 509, 78 N. W. 182. Cf. Bernhart v. Rice, 9s \\ i-.
578, 74 N. W. 370; Kline v. Comstock, 67 Wis. 473, 30 X. W. 920: Tc\vks-
bury v. Bronson, 48 Wis. 581, 4 X. W. 749.
4. Phillips v. Vose, 81 Me. 134, 16 Atl. 463; Murphy v. Adams. 71 Me. 113, 36 Am.
Rep. 299; contra Tewksbury v. Bronson, 48 Wis. 581, 4 X. W. 749.
5. Mulholland v. Ault (Wash. 1892), 32 Pac. 294; Casey v. Ault, 4 Wash. 1(17. _".
Pac. 1048; Dexter v. Sparkman, 2 Wash. 165. 25 Pac. 1070.
6. Abraham v. Agnew, 83 Wis. 246; Bradford v. Underwood Lbr. Co., 80 Wis. 50,
48 N. W. 1105: Garland v. Hickey, 75 Wis. 17S: Patten v. Xorthwestern Lbr.
Co., 73 Wis. 233, 41 N. W. 82; Stacy v. Bryant, 73 Wis. 14, 40 X. W. 632:
Kollock v. Parcher. 52 Wis. 393.
7. Annotated Statutes of Georgia, 1914, Parks, sec. 3358.
8. Filer Etc. Co. v. Empire Lbr. Co. 91 Ga. 657, 18 S. E. 359; Balkcom v. Empire
Lbr. Co. 91 Ga. 651. 17 S. E. 1020. 44 Am. St. Rep. 58; Empire Mill Co. v.
Kiser, 91 Ga. 643, 17 S. E. 972: Dart v. Mayhew, 60 Ga. 104; Cypress Shingle
Etc. Co. v. Lorio, 46 La. Ann. 441: In re Gosch 121 Fed. 604.
CLASSES OF LIEN SERVICE 173
page bought by the mill owner. l However, in certain
states a hen upon a mill or manufactured product for the
purchase price of stumpage is specifically given by statute. 2
A statute giving a hen for the "cutting, skidding and haul-
ing" of logs has been held to cover chopping, swamping and
loading, 3 and one which gave a lien for the "cutting" of
timber was construed to afford a lien for all the labor of one
who cut, peeled and piled poplar timber for pulp purposes. '
In Maine a lien statute for the cutting of logs and one for the
cutting of cordwood were held to merge so as to give a
single remedy to one cutting both timber and cordwood. 5
One furnishing shingle bands was afforded the protection of a
statute giving a lien for services in connection with the
manufacture of shingles. G O 
