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THE ESSENTIALS
| On >
AMERICAN TIMBER LAW

BY

yp KINNEY, A.B., LLB., M.F.

FIRST EDITION

LIBRARY
FACULTY OF FORESTRY \

H)
ab \" |
v
UNIVERSITY OF TORONTO

NEW YORK:
JOHN WILEY & Sons, INc.

LONDON:
CHAPMAN & Hat, LimitTep

1917

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Copyright, 1917,
Gh PURaamey >: 5a

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.

Fie ;: ’

i

t

RY

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 suecessfully 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-

Vv

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 facet
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

Vill PREFACE

could not be appropriately treated in @ 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-
. vaneing 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
oceasionally 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
I rie. Sue ie a ace SI RASC ae ee a ee Vv
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
PIMIDOVADION TS ol ier Os ede 3

Section 4. Modern Application of the Phrases Real
Property and Personal Property...... 3

Section 5. The Meaning of the Terms Tenemenis
and Hereditaments................. 4

Section 6. The Descent of Real Property and of
Personal Property... .. WWE Mte >. fo teres 5

Section 7. Fundamental Distinctions Between Real-
fy-end: Personalby sie. dad cds esac. 5

CHAPTER II
FORMS“OF PRIVATE POSSESSION OF LAND AND
. INCIDENTS THEREOF

Section 8. Ownership in Fee........... i ee 8
meoton 9; Tenancy in Tail...) ee es 8
Section 10. Tenancy in Entirety.................. 8
Section 11. Tenancy in Common................. 8
poctionm 812: Joint Tenancy... 022)... 5 2 8 2 al. 9
mecton. 19. (Copareenarys. 2.5: .. se.8 iA a 9
menor 84. Dito Tenanev is ek oe od 10

Section
Section
Section
Section
Section
Section
Section
Section

Section

Section

Section
Section
Section

Section

Section

TABLE OF CONTENTS

CHAPTER IV

} Page
1S. DOW? oioio io 8s's + nce ae eee ee 10
16.. Curtosys is:54 2 ee ee 11
17. Tenancy for Yours. «...:::. 2 desea 11
1g. Tenancy ‘at Will... . 0.4.2. Uae 11
19. Tenancy from Year to Year........... 12
20. Tenancy from Month to Month........ 12
21. Tenancy by Sufferance................ 12
22. Quasi Tenancies. ..,.....i..: «see eee 13
CHAPTER III
TREES AND TIMBER AS PROPERTY

23. The Use of the Terms Tree, Timber,
Wood, Forest and Woods............ 14

24. The Special Significance of the Word

Timber as used in England and Amer-
CC eee eS 15

25. The Legal Meaning of the Words Stump-
age, Lumber, Firewood, Ete......... 18
26. Growing Trees are Real Property....... 20
27. Severed Trees are Personal Property.... 22

28. Trees Subject to Taxation and Execu-
HON 54:3 20). Geld eh AS 23

29. The Taxation of Logs and Other Timber
Products under Statutes............. 25

THE LIABILITY OF A TENANT AS TO WASTE

Section
Section

Section

Section
Section

30. The Definition of Waste...............
31. The Development of the Doctrine of
~ Waste. . 0 Ae ae

32. Waste Under Tenancies of Dower and
Curtesy and for Definite Periods.....

33. Waste by Tenants at Will.............
34. Commissive, Permissive and Equitable
Wacte .. o5...8 Vee ee

TABLE OF CONTENTS TEC SE

Page
Section 35. Waste Under a Joint Tenancy or a Ten-
ROO Ty, CAMINO 12S BA cae ce ks 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
| LES CI fee Mea nee re 34
Section 42. Limitations Upon the Amount of Timber
BUTE ST CAL 38 1 ie ei PR 36

Section 43. The Relationship between Possession of
Land and Use of Timber must be Inti-

SRE sos ORs a where 9 ote Oh ait aa 37
Section 44. The Judge and Jury Exercise Broad

ERRORS BON ES 5 08 ka ees i Ra Es 39
Section 45. Local Custom and Previous Use are Im-

PHORGATIG. ERC HORE is 'cv-<za tse, ss apenas ees 40

Section 46. The Express or Implied Terms of a
Conveyance or Demise will be given

Section 47. Waste by Tenants in Common......... 42
Section 48. A Liberal Construction is Given the Law
in America when Land is Cleared for

CVGTIOD. 62:08 4 PER oes 43
Section 49. The Removal of Timber must be Bene-
ficiar-to tho: Betate.c. ecaus fsa sens 46

Section 50. The Cutting of Immature Trees or
Those Bearing a Special Relationship

COtne LAN ee VA te 46
Section 51. Prudent Husbandry is the Test as to
WR SON AK Sv. déar Pace Laan sh aaa a tw aks 47

Section 52. Special Statutes Permitting or Forbid-
ding the Cutting of Timber.......... 48

XI

Section
Section
Section
Section
Section

Section
Section

Section

Section
Section
Section
Section

Section

Section

Section

53.
54.
55.
56.
57.

58.
59.

60.

61.
62.
63.
64.

65.

67.

TABLE OF CONTENTS

CHAPTER VI
REMEDIES FOR WASTE
Page
Early Common Law Remedies......... 50
Modern Remedies at Law............. 51
Statutory Remedies for Waste......... 52
The Effect of Special Conditions upon
the Form and Time of Action........ 53
The Remedy Applicable to Tenants
at Wil 5 sO As 54
Damages Recoverable at Law.......... 54
Multiple Damages and Forfeiture Pro-
vided for by Statute................ 54
Multiple Damage and Forfeiture Stat-
utes are not Strictly Enforced Against
Cotenatits.. 04... ob Sco 56
The Use ‘of Injunction for the Freven-
tion of Waste. .-o5 . i. as. «oss ee 57
Injunctions are Granted Liberally in
Modern Practice... ...5-.c\.. Lae 58
An Equity Court may even Redress Past
Injuries after its Jurisdiction Attaches 59
Injunction Regarding the Cutting of Tim-
DOP lc. one bo cee sk ee 60
Injunction Against the Cutting of Tim-
ber by a Vendor or Purchaser under an
Executory Contract of Sale.......... 63
Grounds for a Refusal of an Injunc-
BOWS si soe ek cle Ce 64
Injunction is Available for the Protection
of Publie=“Timbet o.oo... 353 a ee 65

CHAPTER VII

CIVIL LIABILITY FOR TRESPASS UPON TIMBER:
AND FOR THE CONVERSION OF TIMBER PRO-

DUCTS

Section 68. Trespass upon Realty.................

Section

Section
Section

Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section

Section

Section

69.

70.
71.

72.

73.

74.

75.

76.

U.

78.

79.

80.

81.

82.

83.

84.

85.

TABLE OF CONTENTS XII
Page
The Interest Necessary for a Realty Ac-
ORRIN hk fo ties aire ofa tle. GG Slee 67
Prervetee. Fss0ssION 88 ec oe eee e. 69
Trespass upon Severed Trees as Person-
he pie ees La ae 71
The taking of Timber after the Expira-
tion of the time Limited for Removal 72
A Trespasser Acquires no Right in Tim-
i aie obo ois Eee bees 73
The Measure of Damages in Trespass
PRIM ACORIO So oo Go Sed a ee POS ia
The Highest Measure of Damages is
ge Re as 8 car See ae ae a oo a ries
A Choice of Actions in Timber Trespass
Me hci tlwkroatont meee ri aee 78
Recovery by Replevin................ 79
Rey 6 Fi Sad etd a ddeyewla ea 81
Conversion in Actions Against an In-
nocent Timber Trespasser........... 83
The Rule in Wisconsin Regarding Inno-
cent Timber Trespass.......... nap as 9()
The Rule in Michigan Regarding Inno-
cent Timber Trespass............... 92
The Liability of an Innocent Purchaser
from an Unintentional Trespasser.... 92
The Liability of a Wilful Trespasser or
of his Vendee with Notice........... 93
The Liability of an Innocent Purchaser
frome a: Wiltul “Prespasser...eo<.ch4 a. Q4
Exemplary Damages may be Allowed in
bases OL Wilfal: Trespass: : . 2540050 Q+4

CHAPTER VIII

STATUTORY CIVIL LIABILITY FOR TIMBER TRES-

PASS

Section 86. The Development of Timber Trespass

Legislation in America

Section

Section

Section

Section

Section
Section

Section

Section

TABLE OF CONTENTS

; Page

87. Multiple Damages and Penalties under
Statutes: .....5.:. eet. seas EES. eee

88. Conditions Necessary for the Mainten-

97

ance of a Statutory Action.......... 100
89. Defenses in Actions for Statutory Dam-
BPOB 6 oi Lileks «ae ESE 103

90. Determination of the Amount Allowable

as Multiple Damages...............
91. Interest on Damages.................
92. Timber Cut from Federal and State

Lands): 05 0... 00: b4 3th ce 106
93. Civil Damages for the Burning of the
Woods. 2 i ..22¢...81. A 109

94. Statutory Liability of Railroad Opera-
tors for the Setting of Fires..........

CHAPTER Ix

INJURY TO GROWING TREES AS A CRIMINAL

Section

Section

Section

Section
Section

Section 100.

Section 101.

OFFENSE

95. The Cutting of Growing Timber, State
Statutes: oo. ves ole.
96. The Establishment of Criminal Intent

is Essential to Conviction........... 116
97. Criminal Timber Trespass Statutes are
Construed Strictly................. 117
98. Firing the Woods, State Statutes....... 118
99. Special State Statutes Requiring Fire
Precautions by Railroads............ 120
Federal Trespass Statutes and the Inter-
pretation of Them by the Courts..... 122

Federal Statutes Regarding the Firing of
the Publie Lands. :.........%:...s 20g

TABLE OF CONTENTS

CHAPTER X

XV

CONTRACTS REGARDING GROWING TIMBER

Section 102.

Section 103.

Section 104.
Section 105.

Section 106.
Section 107.

Section 108.
Section 109.
Section 110.
Section 111.
Section 112.
Section 113.
Section 114.
Section 115.

Section 1168.
Section 117.

Section 118.

Section 119.

Section 120.

Page

The Fundamental Principles of the Law
ene RC cha ck eh BOR EE Ka eee
Misrepresentations at the Time of Sale
or ‘Timber or Timberland... -....5...%.
Trees may be Constructively Severed...
Fallen Trees Sometimes Pass with the
Special Interests in Trees..............
Interests in Land Incident to Timber
PrP 2c 658-3 o,fyp a BA oar BSE gi
The Application of the Statute of Frauds
POs Pinibet Ales so bok fb Seuss ves
The English Doctrine as to the Statute
of Frauds
The Rule in Massachusetts, Maine and
Connecticut
tO NGL VIO. FUUIO sc (lah. wile 4 aise
The Pennsylvania Rule
The Kentucky Rule
The Rule in the Majority of the States. .
Sales of Severed Products not Within
Be AAR i be ai hep ia ee ns dg a te dd
The Period Allowed for Removal.......
The Effect of the Termination of the
Time Limited for Removal
The Title to Timber Cut but not Re-
moved before the Expiration of the
PAMINGOR PAINS, 5 gsocd selon hd oa he ee es
The Reservation of Title Until Pay-
che) ak 50 (eae a na ee
The Description of the Timber Sold ...

6) Bt oe, BS LO Oe Se) ee oe) RO TR Le Le ie ee! ieee aw

Te oe es 1 RA, es eG Ry FR ND, ww. 118)

a Ee wee IWS) pee oe ewe eS

Pee ATA ST SD & | a) ow

153

154
156

XVI

TABLE OF CONTENTS

CHAPTER XI

CONTRACTS REGARDING. THE PREPARATION
AND MANUFACTURE OF TIMBER PRODUCTS

Section 121.
Section 122.

Section 123.

Section 124.
Section 125.

Section 126.
Section 127.
Section 128.
Section 129.
Section 130.

CONTRACTS

Section 131.

Section 132.
Section 133.

Section 134.
Section 135.
Section 136.

Section 137.

Section 138.

Page .

Contracts for the Logging of Timber.... 160

Divisible Contracts and Partial Perform-
The Application of General Legal Prin-
ciples to Contracts for the Cutting of
Timber
Contracts for the Sawing of Lumber... .
Liens for Expenditures and Services in

© fe ee 2 ene! do ete br one whew eb e pe ee) ee oe ee

the Manufacture of Timber Products . 168
Statutory Liens ...:....5..: ).255. eee 170
Classes of Service Covered by Statutes.. 172
Persons Entitled to Statutory Liens.... 175.
Logging Roads and Railroads.......... 177

An Employer’s Liability for Injuries to
Employees

CHAPTER XII

FOR THE SALE OF TIMBER PRO-
DUCTS F

The Essentials and Scope of Contractual

Agreements: .. 2... 1.5.0 Dee
Legal Delivery and the Transfer of Title
Contracts for Delivery in Installments or

183
184

as: Manufactured... ......44% 5 5S eee 188
Delivery to a Common Carrier......... 190
The Right of Stoppage................ 191

The Rights and Liabilities of Common
Carriers in Particular Cases . . 192

General Principles of Law Applieaa in
Actions for the Breach of Contracts
for the Sale of Timber Products. .....

The Liability of a Principal for the Acts
of an Agent

193

oe 6! © OTS) By ee ser Be 16, aoe & oe) a) Cerne See

TABLE OF CONTENTS XVII

CHAPTER XIII

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-

Ae Ca a en 199
Section 141. Custom Often Controls............... 200
Section 142. A Measurement May be Conclusive.... 202
Section 148. 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-

jacont 46 Streams (3 ad ha. 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

Porpane es fs: boda paca hia eas 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

COOPRDEDIOS (3. HAUSE ORT iy ott a sind 229
Section 155. Scattered or Stranded Logs............ 231

Section 156. Statutory Regulation of the Disposal of
Floated Timber over which the Owner
ARG CORUPON Si fects os os sie es Bes 232

Section 157, The Conversion of Floating or Stranded

XVIII

Section 158.

STANDING

Section 159.
Section 160.

. Section 161.

Section 162.

Section 163.

TREES ON

Section 164.

Section 165.

Section 166.
Section 167.

Section 168.

TABLE OF CONTENTS

Page
Criminal Interference with Floating Tim-
bers 54044 Be th bel se ee ee 238

CHAPTER XV

TIMBER AS INCLUDED IN A MORT-
GAGE

The Legal Effect of a Realty Mortgage. 241
A Mortgagee May Protect his Interest
in Timber when the absdedise is in

Possession of the Land........2.-.s.6 242
Remedies Available to a ortesues after
Foreclosure, ... <0 ss0cets 5-35 he Le 245

Limitations upon the Use and Sale of
Timber when a Mortgagee is in Pos-

session of land |. .... .i..4::..> «-.0 5a 246
Rights in Timber after Foreclosure of a
Mortgage on Land........... $a ae 246
CHAPTER XVI

A BOUNDARY LINE OR IN A HIGH-
* WAY.

Rights of Adjoining Land Owners Re-
garding Trees on or. Near the Division

DINO Flee ae a 248
Trees Marked as Boundary, Corner or

Witness ‘Proees:..2:) 5.5 Ss ee 251
Trees in Streets and Highways......... 253
Injuries to Trees by Public Service Cor-

porations.(.i.5 G54 ui eee 256

Trees Subject to Eminent Domain...... 259

TABLE OF CONTENTS xXIX

CHAPTER XVII

TREES, NURSERY EQUIPMENT, AND SAWMILLS,
AS FIXTURES

Section 169. The Definition of Fixtures... .......... 261
Section 170. Trees and Nursery Appliances as Fix-
EPO IY TU OUAIIG 9 fs ash opeic te oaes 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

LOS y AA RRR tS cr rhe a a 264
Scetion 173. Sawmills and Related Structures or Me-
chanical Devices as Fixtures......... 265

CHAPTER XVIII
THE POLICY OF THE NATIONAL GOVERNMENT
IN REGARD 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 Miuineral
eT Sein i a ceeialh Pv eee are 24 Ny ai 272

s 2 2

See CRP te See, Be Ue SUE 88 Ree Se Rees Bs

FRERRRESE o

} ee
SSHBB

Rseseee

s
=
me
‘

rT

. ERRATA

All footnote reference numerals after the first should be increased one unit, in the text.
read thereafter

Section 9, Line 7, for “therafter”
Section 44, “

= 5, o “or”

cae eS a

“11, ‘* “prejuidicial’’

an Rk Pema 3
Section 52, “ 8, “ “tenency’’

*.\B;. “°° “egtaten'?

“ 2, “ “does”
Section 55, sy ae 5 <-Sae’
Section 71, AE Neg

* 8, ms “eo-tennant”’

.
BS
mi
ang
nes
af
Fe

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E

“ “ “tinent”’

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gee
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ee
re
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ae 68 8, a9 99
as

“ “self”

own

ONE DHORE ww
8,

.
=
-_
-
=

“

of

of

act
prejudicial
and
tenancy
estate

did

many

been
co-tenant
tenant
trees
intent
unintentional

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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

|

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 ealled “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 staéute,
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,
liens 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.! One well defined 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 are 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. Fox, 63 Ill. 540.
2. Craig v. Leslie, 3 Wheaton 563.

+ 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.’”! 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.!
_ 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.’

§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 mieet
them.’ 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.*

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.°

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 Vict. C. 65 (1897); 11 Am. & Eng. Enc. Law (2nd Ed.), 1037 et seq.
6. See 1 Stimson, Am. St. Law, Secs. 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 thete 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 to 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.'

Againjall 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 iz

are determined by the law of the place of domicile of the
owner. !

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-
eable to actions as to movables. ”

1. Minor, Conflict of Laws, Sec. 13; Dicey, Conflict of Laws (Am. Ed.) 72; Freke v.
Lord Carbery, L. R. 16 Eq. 461. (The distinction here made between mov-
ables and immovables is not the same as that between real and personal prop-
erty.) See Sec. 6 of Tiffany Modern Law Real Prop., Chicago 1912, disap-
proving of decision in Despard v. Churchill, 53 N. Y. 192.

2. 3 Bl. Com. 294; Brantley, Pers. Prop., Sec. 7; Notes to Moctyn v. Fabrigas,

1 Smith’s Lead. Cases 652; McGonigle v. Atchison, 33 Kan. 726, Finch’s
Cas, 65.

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 Unites

States. 4)
ge.

§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.’ 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

~s

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.! 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 oecupy the
whole in common with the others or to receive his share
of the rents and profits. ”

§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.*? 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.

$18. 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.”! 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.? 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,‘ 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. Underhill, 24 Ark. 124; Chapman v. Schroeder, 10 Ga. 321; Schnebly v.
Schnebly, 26 Ill. 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, ! even when improved
by grantee of husband.?

§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 their 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? 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 dering the period of the
married life.

§17. Tenancy for Years. A tenancy for years is any
tenaney 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.’’*

§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 Ill. 226; Babb v. Perley 1 Me. 6 (Hus-
band’s interest in trees cannot be taken on execution). Cf. 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. !

§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.? 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.

§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

c. 1037.

1. 24 Cy
24 Cyc. 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. !

§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.! 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 construe-
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.””"! Such terms have been held to include
in meaning not only the trees but also the land upon which
the trees grow. ” |

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, * 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. ®

§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
oak, 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.’’® 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 17667 named oak,
beech, chestnut, walnut, ash, elm, cedar, fir, asp (aspen),
lime (basswood), sycamore and birch as timber trees.- A
supplementary act of 1773° 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 vy. 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.

. Brunell v. Hopkins, 42 Iowa 429; Averitt v. Murrell, 49 N. C. 322, 323.

Hall v. Cranford, 50 N. C. 3, 5.

. Achenbach v. Johnston, 84 N. O. 264.

. Black. Com., Vol. 2, p. 281.

- 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.

NAAR

16 TREES AND TIMBER AS PROPERTY

maple, and hornbeam to be timber trees and imposed the
penalties of Chapter 48, 6 Geo. III, 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, ete., 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.! Thusina 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
eontract 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. ?

In a prosecution for the unlawful cutting of timber in
violation of a criminal statute which imposed a penalty
for 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

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
umber only) See also Lbr. Co. v. Jernigan, 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.”’' 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 treés 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. ?
Another court decided that this Federal Statute included
trees fit only for firewood and charcoal wood.* 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,*® 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’ and
in particular cases it has been held that ‘“‘timber’’ did not

. Bustamente v. United States, 42 Pac. Rep. 111, 4 Ariz. 344.

. United States v. Soto, 7 Ariz. 230, 64 Pac. 420.

. United States v. Stores, et al., 14 Fed. Rep. 824. See Donworth 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. §chuler, 6 McLean 28, 27 Fed. Cas. 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 vy. 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.

ond =

18 TREES AND TIMBER AS PROPERTY

embrace lath,! shingles,? fence rails,* railroad ties‘ or
pulpwood;°* that ‘“‘saw timber’’ did not include telegraph
poles;* and that “lumber and timber,”’ as used in a statute
giving a lien for work in manufacturing the same did not
include slabs.’ However, a Maine statute regulating
the driving of ‘‘timber’’ in streams has been held to include
pulpwood. ®

§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,® but the term has sometimes, im-
properly, been used to mean the value of the trees after
they were cut down.” The word ‘wood’? may not only
mean a forest," or timber which has been cut down,”
but it may include lumber and bark." Although the
word ‘‘timber’’ has been given the restricted meaning of
material fit for building and allied purposes, * it has been
held that ‘standing wood’’ includes trees suitable for tim-
ber as well as those fit only for fuel.» 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. *

. Babka v. Eldred, 47 Wis. 189, 2 N. W. 559.

. Battis v. Hamlin, 22 Wis. 669.

. McCauley v. State, 43 Tex. 374. But see Hunter v. Hunter, 17 Barb. (N. Y.) 25.

. 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 see Kollock V. Parcher, 52
Wis. 393, 9 N. 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

8

me Oh

. Engi v. Hardell, 123 Wis. 407, 100 N. W. 1046. ‘
. 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. W. 549; Nitz v.
Bolton, 71 Mich. 388, 39 N. W. 15; Skeels v. Starrett, 57 Mich. 350, 24 N. W.
98; U. 8S. v. Mills, 9 Fed. 684, 687; Baker v. Whiting, 2 Fed. Cas. No. 787, 3
Summ. 475, 484.

10. Blood v. Drummond, 67 Me. 476; Ayres v. Hubbard, 71 Mich. 594, 40 N. 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.
National Fire Ins. Co. 2 Sandf. (N. Y.) 497, 504. Cf. U. S. v. Schuler, 27
Fed. Cas. No. 16234, 6 McLean, 28, 37.

15. Strout v. Harper, 72 Me. 270.

16. Leigh v. Heald, 1 B. & Ad. 622, 20 E. C. L. 624.

wn

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,! 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.* ‘‘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. °

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.’ It has been held that a
sale of logs upon the basis of a scale did not include a mast
upon the same seale bill. ®

Lumber has been defined by the courts as timber sawed
or split for use in building.’ Some courts have held that
shingles are lumber", and others that they are not."
Pieces of cedar four feet long, rived for shingle spurpoes,
have been held subject to a len for the cutting and hauling
of lumber.'” In some states lumber is defined very com-

. State v. Howard, 72 Me. 459, 465.

. Duren v. Gage, 72 Me. 118.

. Blaine v. Chambers, 1 Serg. & R. (Pa.) 169.

. Buxton v. St. Louis, ete. R. Co. 58 Mo. 55.

. Osborne v. O'Reilly, 42 N. J. Eq. 467, 9 Atl. 209.

: LS. -v,. Bonness, 125. Fed: Rep. 485: 0. S. vy Pine: River Logging & Impr. Co.,

89 Fed. 907, 915.

7. Hardwood Co. v. R. R. Co., 6 Ala. App. 629, 66 So. 949. State v. Addington,
121 N. C. 538, 27 S. E. 988. Cf. in re Gosch, 121 Fed. 604. Cincinnati Ete.
R. Co. v. Dickey, 30 Ohio 16 (Sticks refers to square timber rather than logs.)

8s. Haynes v. Hayward, 40 Me. 145.

9. Craze v. Land Co.:, 155 Ala. 431, 46 So. 479: Ward v. Kadel, 38 Ark. 174, 180;
Mckinney v. Matthews, 166 N.C. 576, 580, 82.8. E. 1036; Duteh v. Anderson,
75, Ind, 35; Williams: y. Stevens Point Lbr. Co., 72 Wis. 487, 40 N. W. 154;
Allen v. Redward, 10 Hawaii 159: Townsend v. Bank. 49 Can. S. Ct. 394, 28
Ont: Io. 7521) 2reOnt Ih 479, 26 Ont. Ll. 291. 4 Dom. i. KR. 91,-3-Ont. WON:
1105, 21 Ont. W. R. 961.

10'"Gross -v., Hiden, 53 Wis:543, 17 N. W.9? Lbr: Co, *. Ross. 19 B.C. 289:

11. Dexter Horton & Co. v. Sparkman, 2 Wash. 165, 25 Pac. 1070.

12. Sands v. Sands, 74 Me. 239. Cf. Bondur v. LeBourne, 79 Me. 21; Hadlock v.

Shumway, 11 Wash. 690; Hurlburt v. Lake Shore R., 2 Int. St. Com. 122.

Anka N =

20 TREES AND TIMBER AS PROPERTY

prehensively by statutes regulating liens.1 The phrase
‘“‘wood and manufactures thereof,’ as occurring in tariff
schedules, has also received judicial interpretation.’

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,* and
conversion will lie for the unlawful taking of such personal-
alty. 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 ° 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. Shumway, 11 Wash.
690, 40 Pac. 346; Baxter v. Kennedy, 35 N. 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. 8., 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 vy. 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, ete. U. 8S. 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. 8S. 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 vy. Morrison, 50:
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, 50
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 8S. W. 129. Starnes v. Boyd 142 8S. W.
. 1148.
Fla. Griffing Bros. Co. v. Winfield, 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. 1020, 44 Am. St. Rep. 58; Coody v. Gress Lumber Co., 82 Ga. 793,
10 S. E. 218.
Til. Osborn v. Rabe, 67 Ill. 108; Adams vy. Smith, 1 Ill. 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 mM H. 522; Putney v. Day, 6
N. H. 430, 25 Am. Dec. 470.
J. Slocum vy. Seymour, 36 N. J. L. 138, 13 Am. a 432.
Y. Vorebeck vy. Roe, 50 Barb. 302, 306; Goodyear v. Vosburgh, 39 How. Pr.
377; Green v. Armstrong, 1 Den. 550; McIntyre 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.! Trees cannot be considered emblements but are
a part of the inheritance.” A sale of land passes the title
to the trees standing upon the land,* but they may be
reserved by deed.* 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.° However, it has been held that timber within
the New York State forest lands is subject to larceny, ®
and in several states the wrongful taking of standing tim-
berhas been declared larceny by statute.’

{Foot note 5 concluded from preceding page)

Ohio. Hirth v. Graham, 50 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,61Pa. 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. Winfield, 53 Fla. 589, 43 So. 687; Adams v. Smith,
* 1 Breese (Ill.) 221, (1828). ©
. Williams v. Hyde, 98 Mich. 152, 57 N. W. 98.
Slocum y. Seymour, 36 N. J. L. 138, 13 Am. Rep. 432.
Cockrill v. Downey, 4 Kans, 426.
. 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.
. Idol v. Jones, 13 N. C. 162, 164, (2 Dev. L.).
. 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. Cas. No. 16,630;
U.S. v. Smith 1 Cranch C. C. 475, Fed. Cas. 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. Rey. Stat. 1889, Sec. 3603-3606. Rev. Stat. 1909 Sec. 4547.
Neb. Rev. Stat., 1913, Sec. 8683.
_ N.C. Of. Code of 1883, Sec 1070, (Laws of 1866, Ch. 60).
Wash. Code of 1910, Rem. & Bal. Sec. 28)1.

Peo

Qn

22 TREES AND TIMBER AS* PROPERTY

§27. Severed Trees are Personal Property. Upon
severance from the land, either actual,! as by physical
detachment, or constructive,” 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.*
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,‘ 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, 45 Am. Rep. 19.
Il., Cf. Brown v. Throckmorton, 11 Ill. 529; Wincher y. Shr>wsbury, 3
Til. 283, 35 Am. Dec. 108.
Iowa, Robertson vy. Phillips, 3 Greene 22).
La. Woodruff v. Roberts, 4 Ta. Ann. 127; But see, Frank v. Magee, 49 La.
Ann. 1250.
Me. Goodwin v. Hubbard, 47 Me. 595; Whidden v. Seelye, 40 Me. 247, 63
Am. Dec. 661; Moody v. Whitney, 34 Me. 563; Richardson y. York,
14 Me. 216.
Md. Cranch vy. 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 N.W. 376, 62 Am. St.
Rep. 713, 32 L. R. A. 102; White v. King, 87 Mich. 107, 49 N. 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,
6i Am. Dec. 560. —

v. Peck v. Brown, 5 Nev. 81.

N.H. Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173; Plumer v. Pres-
cott, 43 N. H. 277.

N.J. Porch v. Fries, 18 N. J. Eq. 204.

N. Y. Bennett v. Scutt, 18 Barb. 347; Pierrepont v. Barnard, 6 N. Y. 279 (Re-

versing 5 Barb. 364); Warren v. Leland, 2 Barb. 613.
C. Wall v. Williams, 91 N. 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. New 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 N. W. 133; Golden v. Glock, 57 Wis. 118,
15 N. W. 12, 46 Am. Rep. 32; Paine v. White, 21 Wis. 423; State v.
School etc. Lands, 19 Wis. 237.

See, 40 Cent. Dig., tit. ‘Property,’ Sec. 8...

2. Kingsley v. Holbrook, 45 N. 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 Nev. 1: Schmidt v. Voght, 8 Ore. 344; But see,
Byasse v. Reese, 4 Metc. (Ky.) 372, 83 Am. Dec. 481; Lockeshan v. Miller,
16 Ky. L. Rep. 55; Musser v. McRae, 44 Minn. 343, 46 N. 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.” 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. *

Ordinarily trees and their fruits cannot be seized and
sold as chattels until severed from the soil. Timber
felled after a judgment lien attached to land passes with
the land at an execution sale.®° Easements and other
special rights and interests in land are taxable only when
made so by statute.® 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,’
even under a very inclusive statute regarding taxation; ®
and the same was held as to a right to cut timber and erect
buildings.’ However, under a Minnesota statute a right
to cut trees from non-taxable railroad lands was consid-
ered a taxable interest.’° Prior to physical severance
from the soil trees are ordinarily taxable as realty;" 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.

8. Potter v. Everett, 40 Mo. App. 152; Cf. Adams v. Smith, 1 Breese (Ill.) 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 II. 108 (1878,
Nursery trees); Bank of Lansingburgh v. Crary, 1 Barb. (N. Y.) 542 (1847).
But see Batterman v. Albright, 122 N. Y. 484 (1890 nursery trees); State v,
Fowler, 88 Md. 601 (1898) and Purner vy. Piercy, 40 Md. 212. Cf. Late v. Mc-
Lean, 2 Nova 8. 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.

. Hancock v. Imperial Naval Stores Co. 93 Miss. 822, 47 So. 177.

. Ashe Carson Co. v. State, 138 Ala. 108, 35 So. 38.

. Clove Springs Iron Works v. Cone, 56 Vt. 603.

. Pine County v. Toyer, 56 Minn. 288, 57 N. W. 796.

. 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.)

ee
roomn

24 TREES AND TIMBER AS PROPERTY

standing on the land of another.' In many States there
are statutes regulating the taxation of standing timber that
is owned separately from the land. ?

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.* 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,‘ 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. °

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, °
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. ?

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. 361); See also sec. 6905b-6905e (Act May 6,
1905, 8. 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. ,

. Cromelin v. Brink, 29 Pa. St. 522.

. Wright v. King, 18 Wis. 45. ° See also Busch v. Nester, 62 Mich, 381, 28 N. W.
911; Eureka Lumber Co. vy. 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.

. 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.

ao

“I

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. ?

§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. *
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.‘ The franchise of a boom company to re-
quire a toll on logs has been held to constitute a taxable

interest. ®
‘~)
1. Nicklase v. Morrison, 56 Ark. 553, 20 S. W. 414; See Gates v. Lindey, 104 Cal.
451, 38 Pac. 31d.
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 Farmingdale v. Berlin Mills Co., 45 Atl. 39; Bradley v. Penobscot
P 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. Wenthworth’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, undeteriorated 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.? 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.*

§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.t 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.®
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. Arh. and Eng. Ency, of Law, 2d Ed.,
Vol. 30, p. 236.

. Black's Law Dictionary.

King v. Miller, 99 N. C. 593, 6 S. E. 660.

. 40 Cyc. 512. For contrary view see Land. & Ten., Tiff. 1910, p. 724.

Am. & Eng. Ency, of Law, 2d Ed. Vol. 30, p. 259.

26

op wo

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! and
Gloucester? 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 Marlbridge 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.* 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,‘ it appears that Ameri-
ean courts have held tenants at will to be guilty of waste. °
St. 52 Henry III, Chap. 23, Sec. 2, A. D. 1267.

St. 6 Edw. I, Chap. 5, A. D. 1278.

. Eng. & Am. Ency. of Law, 2d Ed. Vol. 30, p. 269, Note 6.

. 40 Cyc. 512.

. 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.

ap ON

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.! However, the doctrine has been defined in Ameri-
can cases. ”

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. *
The weight of opinion seems to be that in the United States

1. Landlord and Tenant. Tiffany, Ed. 1910, p. 721.

2. Belt. v. Simkins, 113 Ga. 894; Clement v. Wheeler, 25 N. H. 361; Gannon y.
Peterson, 193 Ill. 372; Chapman vy. Epperson Circled Heading Co., 101 Ill. 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 Harr. & 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 8S. W.
203, 16 Ky. L. Rep. 418.

WASTE BY COTENANTS 29

tenants for life! and for years? are liable for permissive
waste, but tenants at will are not lable for permissive
waste* 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,®> 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. °

§35. Waste under a Joint Tenancy or a Tenancy
in Common. Under the early common law a tenant in
common or joint tenant’ could not be held for waste, but the
statute of Westminster IT * gave to every tenant in common
the right to bring an action for waste against his co-tenant. ?
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.” 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. & 8S. (Pa.) 530.

. Lothrop v. Thayer, 138 Mass. 466. Harnett v. Maitland, 16 M. & W. 257.

. Moore v. Townshend, 33 N. J. L. 284.

. 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. 548, 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. 18 Edw. I, Chap. 22, A. D. 1285.

9. Shiels v. Stark, 14 Ga. 429; Nelson v. Clay, supra.

0. Cal. McCord vy. Oakland Quicksilver Min. Co., 64 Cal. 134; 49 Am. Rep. 686.

Ga. Shiels v. Stark, 14 Ga. 429. :

Ill. Murray v. Haverty, 70 ill. 318.

Ky. Nevels v. Ky. Lumber Co. 108 Ky. 550; Nelson vy. 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)

oe wo

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. !

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,” 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.* However, even where

‘ (Foot note 10 concluded from preceding page)
Mass. Jenkins v. Wood, 145 Mass, 494; Byam v. Bickford, 140 Mass. 31.
Mich. Benedict v. Torrent, 83 Mich. 181, 21 Am. Dec. 589.
Minn. Shepard v. Pettit, 30 Minn. 119.
Mo. Childs v. Kansas City, Etc. R. Co. (Mo. 1891) 17 8S. 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 vy. Hinson. 120 N. C.
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 y.
Johnson, 2 Hill Eq. (S. C.) 277, 29 Am. Dec. 72.

W. Va.Cecil v. Clark, 47 W. Va. 402; Williamson yv. 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. Ct.
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. Nevers, 4 Mason (U. 8.)
326, 19 Fed. Cas. No. 11,390, holds contrary.

1. Dodge v. Davis, 85 Io. 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; Cliaiwenn v. Epperson Circled Head-
ing Co., 101 lil. App. 161; Stevens v. Rose, 69 Mich. 259, 37 N. 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 oF

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.! 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,? and that the com-
plainant must show that an injury to the inheritance had
been, or was about to be, done,* yet the doctrine of waste
has 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.‘ 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, f
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, 6 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 Ill. App. 252, 255; McCullough v. ites: 13 Pa. St. 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.!. 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 8S. W. 35, 34 Am. St. Rep. 240; Loudon v.
Warfield, 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 vy. Padelford, 24 Mass. (7 Pick.) 152; Hubbard v. Shaw, 92 Mass.
(12 Allen) 120; Dorrell 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.
a
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 vy. 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 y. Sulis,
3 Nova Scotia 497; Campbell v. Shields, U. C. Q. B. 449; St. Paul’s
Church v. Titus, 6 N. Brunsw. 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-
' aeter 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 cause 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.* In England it is waste to
cut any timber tree, or to permit it to be cut, + except upon
land where it has been the custom to fell suitable wood at
intervals as a part of the regular profits.° The exception
has been announced in the consideration of cases involving

1. 7 Bac. Abr. 252; Simmons y. Norton, 7 Bing. 640, 20 E. C. I.. 270; Arch Deacon
v. Jennor, Cro. Eliz. 604; Hogan v. Hogan, 102 Mich. 641; Rutherford v. Aiken,
3 Thomp. & C. (N. Y.) 60; Gorges v. Stanfield, 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. Cas. 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. 8. 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. 8S.
671. 22 Wkly, Rep. 749; Cook v. Cook, Cro. Car. 531, 79 Eng. Reprint 10459;
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 vy. Lockwood, #3 Ill. 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; Profitt v. Henderson, 29 Me. 325; Keeler v. Eastman,
11 Vt. 293.

5. Perrot v. Perrot, 3 Atk. 94; Ferrand v. Wilson, 4 Hare 344; Dashwoad y. 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 distine-
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.? All 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. *

§41. General Principles in both England and 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.* The

1. Babb v. Perley, 1 Me. 6; Cannon v. Barry, 59 Miss. 289.
2. Drown vy. 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, 873; Web-
ster v. Webster, 33 N. H. 18, 25, 66 Am. Dec. 705: McCullough v. Irvine, 13 Pa.
St. 438. Am. & Eng. Ency. Law, 2d Ed., Vol. 30, p. 240; Note 4. 40 Cyc. 501;
Cf. Acts of Ex’r and Adm’r, McNichol v. Eaton, 77 Me. 246; McCracken vy.
McCracken, 6 T. B. Mon. (Ky.) 342. Finley v. Pearson, 76S. W. 374, 25 Ky.
L. Rep. 766; Gordon y. West, 8 N. H. 444; Costov. Kixv'z.1 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 30

tenant may, therefore, cut the inferior species and inferior
individuals of the timber species provided the removal of
timber is not of such extent 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;? and in an American case, involving a question of
waste, the court held that evidence tending to show that
the trees cut and sold were in a dying condition was properly
admissible.* 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,‘ of a third
party,® or by the elements® and the tenant will be guilty
of waste if he appropriate timber trees blown down by storm. *
However, trees which the tenant may lawfully cut, without
waste, belong to the tenant,* and he is entitled to the
proceeds, whether they have been severed by himself, °
by the lessor,!’ by a third party," or by the elements, ”
and the tenant is not guilty of waste in removing such

1. Hogan v. Hogan, 102 Mich, 641, 61 N. W. 73.

See Landlord and Tenant, Tiffany, Ed. 1910, p. 711, Sec. 109.

. Co. Litt. 53a; Herlakenden’s Case, 4 Coke 62: Gage v. Smith, 2 Rolle Abr. 817;
Cowley v. Wellesley, L. R. 1 Eq. 656, 3 Beav. 635, 14 I. T. Rep. N.S. 425, 14
Wkly. Rep. 528. 55 Eng. Reprint 1043; Perrot v. Perrot, 3 Atk. 94, 26 Eng. Re-
print 857; Sawyer v. Hoskinson, 110 Pa. 473, 1 Atl. 308; Keeler v. Eastman, 11
Vt. 293; King: y. Miller, 99° N,.©. 583, 6°S.. BE. 660; Waples vy. Waples, 2: Harr:
(Del.) 28; Drown v. Smith, 52. Me. 141; Kent v. Bentley, 3 Ohio Dec. 173;
Houghton v. Cooper, 6 B. Mon. (Ihky.) 281.

3. Morris v. Knight, 14 Pa. Super. Ct. 324.

4. Bulkley v. Dolbeare, 7 Conn. 232; White v. Cutler, 34 Mass. (17 Pick.) 248, 28
Am. Dec. 296; Johnson v. Johnson, IS N. H. 594; Williamson v. Jones, 43 W.
Mal obs. 27 he b.. 411; Bill vy. Burgess; 37 S:C: 604, 15-S. B..963" Richardson:
v. York, 14 Me. 216; Lester v. Young, 14 R. I. 579.

« Lane v. Thompson, 43 N. H. 320; See Porch v. Fries, 18 N. J. Eq. 204.

6. Stonebreaker v. Zollickoffer, 52 Md. 154, 36 Am. Rep. 364.

7. Ward v. Andrews, 2 Chit. 636, 18 E. C. L. 435; Mooers v. Wait, 3 Wend. (N. Y.)
104; Cf. Shult v. Barker, 12 Serg. & R. (Pa.) 272.

Wind-thrown trees pass with land as realty; Leidy v. Procter, 97 Pa. St. 486; See

also Aim. & Eng. Ency. Law, Vol. 30, p. 305, Note 2.

8. Mooers v. Wait, 3 Wend. (N. Y.) 104; Hastings v. Crunckleton, 3 Yeates (Pa.)
261; Crockett v. Crockett, 2 Ohio St. 180; Lewis v. Godson, 15 Ont. 252.

9. Profitt v. Henderson, 29 Mo. 325; Clement v. Wheeler, 25 N. H. 361; Crockett v-
Crockett, supra; Keeler v. Eastman, 11 Vt. 293.

10. Am. & Eng. Ency, Law, Vol. 30, p. 304.

11. Ibid.; Land & Ten., Tiffany, Ed. 1910, p. 737.

12. Ibid.

lo

36 LEGAL WASTE OF- TIMBER

trees when blown down by a storm.! The parts of wind-
thrown timber that are fit only for wood belong to the
tenant.* Similarly, when a tenant holds without impeach-
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.* He is entitled to take that which is suitable
for the uses permitted and may, ordinarily, take that
which is conveniently situated. 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.* 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. 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,*® 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-
eome dilapidated, or ruinous.’ 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 vy. Shreeve, 59 Md. 357; Miles v. Miles, 32 N. H. 147, 64 Am. Dec.
362; Smith v. Jewett, 40 N. H. 530; Simmons y. 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.

. Webster v. Webster, 33 N. H. 18, 66 Am. Dec. 705; Rutherford v. Aiken, 2 Thomps”
& C. (N. Y.) 281, (8 Thomps. & C., p. 60.)

. Smith v. Jewett, 40 N. H. 530; Gardiner v. Derring, 1 Paige (N. Y.) 573.

. Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 604.

. Hogan v. Hogan, 102 Mich, 641, 61 N. W. 73.

. Harder v. Harder, 26 Barb. (N. Y.) 409; See Coke Litt. 54 b.

. Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 601.

»

Canaan

RIGHT TO USE TIMBER LIMITED oT

ber for repairs made necessary by his own fault.! nor to
rebuild a structure destroyed by an act of God.? Timber
cannot be used for the making of repairs to an extent greater
than is necessary.*® 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. *
A life tenant has been permitted to use wood in the opera-
tion of salt works® 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. °

$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,® 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.!? In
the absence of express stipulations granting him the privi-
lege American courts generally hold that a tenant for life

——

OO. Latte Dab:
. Miller v. Shields, 55 Ind. 71.
. Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 601; Gorges v. Stanfield, Cro. Eliz. 593.
. Neel v. Neel, 19 Pa. St. 323.
. Findlay v. Smith, 6 Munf. (Va.) 134, 18 Am. Dec. 733.
See Bond v. Godsey, 99 Va. 564, 39 8S. KE. 216, where in estimating commuted
value of estate in curtesy court declined to exclude share in value of standing
timber, and McCaulay v. Dismal Swamp Land Co. 2 Rob. (Va.) 507, giving
dower in profits of timber cutting .
6. Den v. Kinney, 5 N. J. L. 634; Wilson v. Smith, 5 Yerg. (Tenn.) 379.
7. Morehouse v. Cotheal, 22 N. J. L. 521; Kidd v. Dennison, 6 Barb. (N. Y.) 9.
8. Armstrong v. Wilson, 60 II. 226.
9. McCracken v. McCracken, 6 T. B. Mon. (Ky.) 342.
10. Livingston v. Reynolds, 26 Wend. (N. Y.) 115.

Som Whe

38

LEGAL WASTE OF TIMBER

or for years has no right to cut for sale’ either timber
trees or those fit only for firewood, nor to exchange the
same either for fuel? or for materials for repairs;* 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.* On the
other hand it has been held in some jurisdictions that a

1. Ala.
Ark.

Del.
‘Ga.

ind.
Ky.
‘Mass.

Me.
Mich.

Miss.
Mo.

N. H.

Ne Y..

Ladd v. Shattuck, 90 Ala. 134, 7 So. 764.

Rutherford v. Wilson, (1910) 129 8S. W. 534; McLeod v. Dial, 63 Ark. 10,
37 S. W. 306.

Fleming v. Collings, 2 Del. Ch. 230.

Smith v. Smith, 105 Ga. 106, 31 S. HE. 135; Jones v. Gammon, 12% Ga. 47, 50
S. E. 982.

Miller v. Shields, 55 Ind. 71; Modlin v. Kennedy, 53 Ind. 267.

Loudon v. Warfield, 5 J. J. Marsh 196; Brashear vy. Macey. 3 J. J. Marsh 93.

Padelford v. Padelford, 24 Mass. (7 Pick.) 151; Noyes v. Stone, 163 Mass.
490, 40 N. E. 856. ;

Babb v. Perley, 1 Me. 6; Richardson v. York, | Me. 21h.

Duncombe v. Felt, 81 Mich, 332, 45 N. W. 1004: Webster vy. Peet, 97 Mich.
326.

Moss Point Lumber Co. v. Harrison Co., 89 Miss. 448, 42 So. 290, 873;
Warren Co. vy. Gans, 80 Miss. 76, 31 So. 539; Learned v. Ogd :n, 80 Miss.
769. 32 So. 278, 92 Am. St. Rep. 621.

Profitt v. Henderson, 29 Mo. 325; Davis v. Clark, 40 Mo. App. 515.

Chase v. Hazelton, 7 N. H. 171; Fuller v. Wason, 7 N. H. 341; Webster v.
W -bster, 33 N. H. 18, 60 Am. Dec. 705; Johnson v. Johnson, 18 N. H.
594.

Morehouse v. Cotheal, 22 N. J. L. 521; Van Syckel v. Emery, 18 N. J. Eq.

387.

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.

. 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.

Crockett v. Crockett, 2 Ohio St. 180.

Glass v. Glass, 6 Pa. Co. Ct. 468.

Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621; Lester v. Young, 14 R. L.
579.

Hill v. Burgess, 37 S. C. 604, 15 S. E. 963.

Johnson v. Gurley, 52 Tex. 222.

Thurston v. Muston, 23 Fed. Cas. No. 14,013, 3 Cranch. C. C. 335.

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.

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,
Secs. 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 y. Cotheal, 22 N. J. L. 521; Gorges v. Stanfield, 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;! 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,* nor can he grant
to another a license to cut and remove timber;‘ but he
may work mines already opened® 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,® but the question whether
waste has been committed in a particular case is one of
fact which is to be determined by the jury,’ except in
those cases in which the acts complained of are per se in-
jurious to the inheritance® or are clearly in violation of
an obligation which rests upon the tenant.° The question

1. Loomis v. Wilbur, 5 Mason 13, 15 Fed. Cas. No. 8,498; Hixon v. Reaveley, 9 Ont.
L. Rep. 6, 4 Ont. Wkly. Rep. 437; Contra area Shields, 55 Ind. 71; See King
v. Miller, 99 N. C. 583, 6 8. 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. Noyes 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. )

6. Van Syckel v. Emery, 18 N. J. Eq. 387.

7. Me. Down v. Smith, 52 Me. 141; Hasty v. Wheeler, 12 Me. 434.

Md. Machen vy. 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; McCullough 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,! 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.’

§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,* 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;°. 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. °

The cutting of oak for fuel has been held not to be waste
if such cutting were common usage in the locality where
done.’ Under the same general rule a tenant in dower
has been permitted to cut and sell hoop-poles,*® 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 vy. Duplessis, 2 Ves. 360, 28 Eng. Reprint
230.
2. Jackson v. Brownson, 7 Johns. (N. Y.) 233, 5 Am. Dec. 258; Drown vy. 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 vy. Woolridge, 3 Pa. Co. Ct. 17; See also Honywood v. Honywood, L. R.
18 Eq. 306; Williard v. Williard, 56 Pa. St. 119; Dashwood y. Magniac (1891)
3 Ch. 306; Angier v. Agnew, 98 Pa. St. 587, 42 Am. Rep. 624.
. Robertson v. Meadors, 73 Ind. 43
. Babb v. Perley, 1 Me. 6; Padelford v. Padelford, 7 Pick (Mass.) 152; Lester v.
Young, 14 R. I. 579.
8. Clemence v. Steere, 1 R. IL. 272, 53 Am. Dec. 621.

ID

INTERPRETATION OF AGREEMENTS 41
shingles! 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,* and the
general rule against the cutting of an unnecessary amount
for fuel,+ or repairs and improvements® will be more
strictly enforced where the terms of a lease recite that no .
waste is to be committed.* 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.* A lease giving a right

.

1. Ballentine v. Poyne, 2 Hayne (3 N. Car.) 110.
2. Carr vy. Carr, 4 Dey. & B. L. (20 N. Ca..) 179; But see Parkins vy. Cox, 2 Hayne
(3 N. Car.) 339.
3. Ala. Moses v. Johnson, 88 Ala, 517, 7 So. 146, 16 Am. St. Rep. 58; Special Right,
McDaniel v. Callan, 75 Ala. 329.
Del. Waples v. Waples, 2 Harr. 281; Fleming y. 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 yv. 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 vy. 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; Selden v. Mann, 2 N. Y. Leg. Obs. 328.
N.C. King vy. Miller, 99 N. C. 583, 6 S. E. 660; Parkins v. Cox, 3 N. C. 339.
Pa. Smith’s Appeal, 69 Pa. St. 474.
8. 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 y. 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. McMullen, 12 Oreg. 150, 6 Pac. 497.
7. Campbell v. Shields, 44 U. ©. 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 construad
so as to permit cutting from another part.' An unwar-
ranted cutting will not be considered waste if it causes only
a slight or temporary injury. ?

$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’ and
will not be held to constitute an adverse possession as against
his co-tenant.* 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.* If the cutting is unreasonable, in view of all
the cireumstances, the co-tenants may require an account-
ing for timber sold,*® 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 N. 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 vy. 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, 101 Eng.
Reprint 1313; Arthur v. Lamb, 2 Drew & Sm. 428.

4. McQuiddy v. Ware, 67 Mo. 74; Griffies v. Griffies, 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. 548, 22 L. R. A. 641; Gillum v.
St. Louis, ete. R. Co., 4 Tex. Civ. App. 622, 23 S. W. 716; See also, Hole v.

7 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 y. Johnson, 2 Hill Eq. (8. 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.!' 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.’ A co-tenant is not entitled to contribution
from a co-tenant for expenditures for the preservation or
benefit of woodland. 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 itis 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.® The stern purpose of

1. Dodd v. Watson, 57 N. C. 48, 72 Am. Dec. 577; See also Adamson v. Adamson
17 ‘Ont. 407.

2. Hensal v. Wright, 10 Pa. Co. Ct. 416 (Act May 4, 1869).

3. Benedict v. Torreut, 83 Mich. 181, 47 N. W. 129, 21 Am. St. Rep. 589, 11 L. R. A.
278; See Elwell v. Burnside, 44 Barb. 417.

4. Beaty v. Bordwell, 91 Pa. St. 438; Deck’s Appeal, 57 Pa. St. 467; Anderson v.
Greble, 1 Ashm. 136; Ward v. Ward, 40 W. Va. 611, 21 S. E. 746. 52 Am. St.
Rep. 911, 29 L. R. A. 449; Alexander v. Ellison, 79 Ky. 148; Carver v. Miller,
4 Mass. 559; Gregg v. Patterson, 9 Watts & S. (Pa.) 197; Bowles’ Case, 11 Coke
79b, 77 Eng. Reprint 1252.

5. Ala. Alexander v. Fisher, 7 Ala. 514.

Cal. McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 49 Am. Rep. 686.

Ga. Dickinson v. Jones, 36 Ga. 97; Woodward v. Gates, 38 Ga. 205.

Mi. Bond v. Lockwood, 33 IIL. 220.

Ind. Dawson y. Coffman, 28 Ind. 220.

Kix: McCracken v. McCracken, 6 'T. B. Mon. 342; Hickman v. Irvine, 3 Dana
£21.

Me. Drown v. Smith, 52 Me. 141.

Md. Adams v. Brereton, 3 Harr. & J. 124.

Mass. Pynchon v. Stearns, 11 Mete. 304, 45 Am. Dec. 207.

Miss. Cannon v. Barry, 56 Miss. 289; Warren Co. v. Gans, 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. 368.

N. H. Chase v. Hazelton, 7 N. H. 171; Miles v. Miles, 32 N. H. 147, 64 Am. Dec.
362.

N. J. Morehouse v. Cotheal, 22 N. J. L. 521; Den V. Kinney, 5 N. J. L. 634;
Gaines v. Green Pond Iron Min. Co., 33 N. J. Eq. 603.

N. Y. Harder v. Harder, 28 Barb. 409; Kidd v. Dennison, 6 Barb. 9; People v.

(Foot note 5 continued on next page)

44

the law

LEGAL WASTE OF TIMBER

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' does not find favor
in American courts which, in the absence of special obliga-

tions on
ber, will
prudent

the part or the tenant to refrain from cutting tim-—
consider whether the clearing has been such as a
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, alone, diminished the value of

the land

as an estate.? The custom of the neighborhood

«

(Foot note 5 concluded from preceding page) 6
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;

Ohio.

Eng.

Parkins v. Cox, 2 Hayw. (3 N. C.) 283, 2 Am. Dec. 625; Crawley v.
Timberlake, 2 Ired. Eq. (37 N. C.) 460; Sherrill v. Conner, 107 N. C.
630, 12 S. E. 588. .

Crockett v. Crockett, 2 Ohio St. 180; Hall v. Rohr, 10 O. Dec. (Reprint)
690, 23 Cin. L. Bul. 121.

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. ‘i

Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621.

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.

. Lunn v. Oslin, 96 Tenn. 28; Owen v. Hyde, 6 Yerg. 334, 27 Am. Dec. 467.

Keeler v. Eastman, 11 Vt. 293.

Findlay v. Smith, 6 Munf. 134, 8 Am. Dec. 733; Crouch v. Puryear, 1 Rand.
258, 10 Am. Dec. 528.

Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 513.

Loomis v. Wilbur, 5 Mason (U. 8S.) 13.

Titus v. Sulis, 9 Nova Scotia 497; Saunders v. Breakie, 5 Ont. 603; Drake
v. Wigle, 24 U. C. C. P. 405.

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.
ill.
Ind.
Me.

Woodward v. Gates, 38 Ga. 205.
Bond v. Lockwood, 33 Ill. 212.
Dawson vy. Coffman, 28 Ind. 220.
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.

Mo.

539; Moss Point Lumber Co. v. Board of Supr. Harrison Co., 89 Miss.
448, 42 So. 290.
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
Pa.
8. C.

Vt.
Wis.

- Davis v. Gilliam, 40 N. C. (5 Ired. Eq.) 308.
Morris v. Knight, 14 Pa. Super. Ct. 324.
Thompson v. Bostwick, McMull. Eq. 85; Hancock v. Day, McMull, Eq.
69, 36 Am. Dec. 293.
Keeler v. Eastman, 11 Vt. 293.
Wilkins:n v. Wilkinson, 59 Wis. 557, 18 N. W. 513.

CLEARING LAND FOR CULTIVATION 45

will have a bearing upon this question,! 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.* 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.> 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. °
In such eases 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,’ and the fact
that but a small proportion is woodland will go far toward
limiting the tenant’s right to remove.* 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 vy. 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 y. 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.

. McDaniel v. Callan, 75 Ala. 327.

. Kidd vy. Dennison, supra.

. 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. Wilcox, 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 8S. W. 306; Kidd v. Dennison, 6. Barb. (N. Y.) 9; Jackson
v. Brownson, 7 Johns. (N. Y.) 227- 5 Am. Dec. 258.

ND oO

46 LEGAL WASTE OF TIMBER

be good husbandry for the owner in fee to restore the land
to pasture. ! ;

§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.? If land
is cleared for any other purpose than fitting it for eulti-
vation and the clearing is not manifestly beneficial to the
estate it is waste.’ In fact, clearing for any purpose
whatever is waste if it decreases rather than enhanves the
value of the land,‘ The removal of all the valuable timber
even for purposes of cultivation,® or of so much that there
is not enough left for repairs upon the premises® 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. Gans, 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 Ill. 226; Cook v. Cook, "7 Mass. (11 Gray) 123.
4. Ala. Moses v. Johnson, 88 Ala. 517, 16 Am. St. Rép. 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 vy. Warfield, 5
J. J. Marsh, 196. <
Me. ~ Maxwell v. Maxwell, 31 Me. 184, 50 Am. Dec. 657.
Mass. Pynchon v. Stearns, 11 Metc. 304, 45 Am. Dec. 207.
Mich. Clow v. Plummer, 85 Mich. 550. :
Miss. Warren Co. v. Gans, 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.
Ss. 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, ! 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.? Fruit trees?
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,‘ shade trees,® or

ornamental trees, cannot ordinarily be cut by a tenant®
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,* 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.® Allowing cattle or hogs to
injure a meadow or fruit trees would ordinarily be
waste,’° 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.1! 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. Ch. 116, 9 L. T. Rep. N. 8S.
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, pl. 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 vy. 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. F

8. Richards v. Torbert, 3 Houst. (Del.) 172; Darden v. Cowper, 52 N. C. 210, 75 Am.
Dec. 461.

9. Clemence v. Steere, 1 R. I. 272, 53 Am, Dec. 621.

But see Clark v. Holden, 7 Gray (Mass.) 8, 66 Am. Dec. 450; Shine v. Wilcox, 21 ~
N. C. 631.
10. Warder v. Henry, 117 Mo. 530, 23 8. W. 776; Bellows v. McGinnis, 17 ni 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. !

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;? 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. °

§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.> 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. Andrew, 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 vy. Stearns, 52 Mass. (11 Metc.) 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, see. 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..E. 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.! 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. ?

1. See the following:

Ga. Code 1910, sec. 3695 (tenant), 3724 (tenant in common).

Ida. Rey. Code 1908, 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 andl 18.

Utah Compiled Laws 1907, sec. 3507.

Va. Code 1904, sec. 2775-2778.

W. Va. Code 1913, Hogg, sec. 4122-26.

Wis. Statutes, 1915, secs. 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).

Tenn. 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 falleninto disuse both in Eng-
land and America. 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. *

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, ®
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.® 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
. See citations in 40 Cyc. 519, 520, Ed. 1904.

. See citations in 40 Cyc. 519; and in Am. & Eng. Ency. Law, Vol. 30, p. 273, 2d Ed.

. See citations in 40 Cyc. 521, Note 63.

. 3 and 4 Wm. IV, Ch. 27, Sec. 36 (A. D. 1833); See Stevens v. Rose, 69 Mich. 259,
37 N. W. 205.

. Am. & Eng. Ency. Law, 2d Ed., Vol. 30, p. 274; 40 Cyc. 517.

. 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

BwN

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.1 There must be privity of estates between the
parties to the action.? 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 Jaw regarding the action of waste have been removed
by statute.* 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. +

$54. Modern Remedies at Law. The action on the
ease 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.*® Although earlier cases
held that action on the case did not lie for permissive waste,

1. 40 Cyc. 527; Co. Litt. 218b.

2. Co. Litt. 53b; 2 Inst. 301; Foot v. Dickinson, 2 Metc. (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. R. 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.
Follanshee, 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.” Privity of estate seems to be necessary in a
few jurisdictions,* but generally privity is unnecessary
to the maintenance of an action on the case in the nature
of waste. It cannot be maintained by one having
merely a contingent interest.° 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;® 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, ® 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.° 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. 8.) 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 8. & 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 Metc. (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; Me-
Laughlin v. Long, 5 Har. & J. (Md.) 113; Dozier v. Gregory, 46 N. C. 100.

7. Parrot v. Barney, Deady, U. 8. 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 De

for the recovery of damages due to the commission of
voluntary waste by a tenant for life or years. ! |

§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 ease or other action, directly
for the waste.? 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,* 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.* 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. ®
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.® The right of a lessor to bring an
action in tort for waste is well established’ and many
court dicta indicate that an action will probably lie in
contract for a breach of the implied contract of the lessee to
use the premises leased in a tenant-like manner. *

1. 4 Kent Comm. 81; Randall v. Cleaveland, 6 Conn. 328; Dozier v. Gregory, 46 N. C.
(1 Jones L.) 100; Yocum v. Zahner 162 Pa. 468, 29 Atl. 778; Thackeray v. Eldi-
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.! The proper form of such
action is evidently trespass and not trespass on the ease.

§58. Damages Recoverable at Law. In an action
for waste the measure of damages will be the harm done
the inheritanee.* 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.* Under a count in trover in
an action on the case in the nature of waste for the cutting
of timber the plaintiff may recover the value of the timber —
as appreciated by the wrong-doer’s skill and _ labor;*
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. ®

§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 vy. 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
vy. Knight, 14 Pa. Super. Ct. 324; Bodkin v. Arnold, 48 W. Va. 108, 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; Hamden v. Rice, 24 Conn. 350. —

4. Harris v. Goslin, 3 Harr. (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.'! In several of the United States the pro-
visions of the Statute of Gloucester are held to be still
in foree.? 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.* Forfeiture is not favored‘ and in the
United States, as in England, must be confined to the
particular thing wasted.®° Thus the cutting of a few
trees in a woodlot has been held not to work a forfeiture
of the whole lot;* but the whole would be forfeited if the
cutting were scattered over the lot.’ A forfeiture may
be waived by the reversioner.* Statutes in many Ameri-
ean States allow either double or treble damages? for
waste and several allow forfeiture.!° Most of these statutes
are held to be merely supplementary to or confirmatory "
of the common law rule. However, they are considered
to be penal in nature and will be construed strictly.”
Some of them say that treble damages ‘‘shall’’ * 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
vy. 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
iO. OC. 335.

3. Roby v. Newton, 121 Ga. 679; Bollenbacher 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. OC. 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. Hayward, 10 Allen (Mass.) 460.

12. Adams v. Palmer, 6 Gray (Mass.) 338.

13. Kentucky St. 1903, Secs. 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”’ !
be assessed at three times the waste. Under some of them
forfeiture cannot be decreed,” and generally the allow-
ance of multiple damages is discretionary with the court
and will be confined to cases of wilful or malicious waste. *
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. ‘

§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 ease or the statutory action regarding waste
may be brought.* Double and treble damages have been
allowed ® against a co-tenant, but the courts show a re-
luctaney to apply this rule where property is held in com-
mon’ 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.* It has also been

1. California Code Civ. Proc., Sec. 732; Idaho Code Civ. Proc. 1901, Sec. 3374; Minn*
Rev. Laws, 1905, 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 8. E. 588.

4. Shields v. Lawrence, 72 N. C. 43.

5. Nevels 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. 4 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. '

§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 ease for
damages.* The use of the remedy is no longer confined to
eases founded on privity of title.’ and will be granted
against a trespasser ¢ 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. ®

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 most courts require a very clear showing
that the injury will be irreparable® and that there is not
an adequate remedy at law.’ If upon the facts stated in
the application for an injunction the applicant has an ade-

Ridin.
1. Cecil v. Clark, 47 W. Va. 402, 35 S. E. 11, 81 Am. St. Rep. 802.

See Lumber Co. v. Lumber Co. (Ky.) 64 8. W. 652 (Tenant in common can con-
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 Metc. (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. Overstreet, 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.
i: Palmer v. Young, 108 Ill. App. 252.
d. Georges Creek Coal etc. Co. v. Detmold, 1 Md. Ch. 371 .
J. Scudder v. Trenton Delaware Falls Co., 1 N. J. Eq. 694, 23 Am. Dec. 756.
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.
8. C. Crawford v. Atlantic Coast Lumber Corp., 77 8. 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.
6. Timber case, Great” v. Keen, 4 Md. 98; Cf. Atkins v. Chilson, 48 Mass. (7 Metc.)
398, 41 Am. Dec. 448.
7. Brown v. Niles, 165 Mass. 2 6, 43 N. E. 90; Cutting v. Cartcr, 4 Hen. & M
Va.) 24.

58 REMEDIES FOR WASTE

quate remedy at law for the injury which has been or will
be suffered an injunction will not be granted.' 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 eases 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.* Proof of one in-
stance of substantial waste intentionally committed, *
or of slight waste under conditions clearly indicating an
intention’ 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. 25.

2. See Stevens v. Rose, 69 Mich. 259; Duncombe 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 vy.
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. Warfield, 5 J. J. Marsh (Ky.) 196; Barry y. Barry, 1
Jac. & W. 651, 37 Eng. Reprint 516; See Webster v. Peet, 97 Mich. 326, 56 N. W.
558. e

JURISDICTION OF EQUITY COURT 59

’

of the writ,! mere apprehension? 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,* 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® 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.

Til. Palmer v. Young, 108 Ill. App. 252.

Ind. White Water Valley Canal Co. v. Comegys, 2 Ind. 469.

Ky. Loudon v. Warfield, 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.

. Butts v. Fox, 107 Mo. App. 370, 81 8. 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. Allman,
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 Ill. 226; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411;
Disher v. Disher, 45 Neb. 100, 63 N. W. 368, under code.

w

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,! 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. *

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 Trees: 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 vy. Lewis, 46 Ind. 488, 15 Am.
Rep. 295.

Iowa. Palmer vy. 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. Butman v. James, 34 Minn. 547.

Mo. Powell v. Canady, 95 Mo. App. 713, 69 S. W. 686; Palmer vy. Crisle, 92 Mo.
App. 510.

N. J. Piper v. Piper, 38 N. J. Eq. 81; Chenango Bank vy. 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 vy. 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 trees had been grown, such as for a sugar orchard ?
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,’ but a Federal court has held to
the contrary.° The remedy will not be granted as a
matter of course® 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,’ or where it did not appear that the trees
had any special or peculiar value. §

(Footnote 3 concluded from preceding page)
Eng. Gilmour v: Maurvit, 14 App. Cas. 645, 59 L. J. P. ©. 38, 6 L.. T. Rep.
N.S. 442 (Affirming 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.
See Humphrey v. Harrison, 1 Jac. & W. 561; Harper v. Alpin, 54 L.T.N.S. 383
Can. McLean v. Burton, 24 Grants Ch. (U. C.) 134; Wightman v. Fields, 19
Grants Ch. (U. C.) 559; McDougall v. Grignon, 15 Quebec Super. Ct.
535. See Robins v. Porter, 2 Can. L. J. 230.

1. Powell v. Cheshire, 70 Ga. 357, 48 Am. Rep. 572, shade trees; Musch v. Burkhart,
Soulowsa 301, 48 N. W.- 1025,. (32 Am. St: Rep; 305, 12 L. R: A. 484:
Davis v. Reed, 14 Md. 152; Griffith v. Hilliard, 64 Vt. 643, 25 Atl. 427, char-
coal plant; Camp v. Dixon, 112 Ga. 872, 37 S. E. 71, 52 L. R. A. 755; But. see
Heaney v. Butte, etc. Commercial Co., 10 Mont. 590, 27 Pac. 379.

2. Clendening v. Ohl, 118 Ind. 46, 20 N. E. 639; Smith v. Rock, 59 Vt. 232, 9 Atl. 551.

3. Carney v. Hadley, 32 Fla. 344, 14 So. 4, 37 Am. St. Rep. 101, 22 L. R. A. 233;
Gause v. Perkins, 56 N. C. 177, 69 Am. Dec. 728. :

4. West v. Walker, 3°.N. J. Eq. 279.

5. Wood v. Braxton, 54 Fed. 1005.

6. Butsece Markham v. Howell, 33 Ga. 508; Smith v. Rome, 19 Ga. 89,63 Am. Dec. 298.

See St. Regis Paper Co. v. Santa Clara Lbr. Co., 67 N. Y. Suppl. 149 (1900.)
(Court will not unnecessarily assume responsibility of business enterprises. )
(ie Ee Woodford v. Alexander, 35 Fla. 333, 17 So. 65S.
Ga. Morgan v. Baxter, 113 Ga. 144, 38 S. E. 411.
Ind. Smith v. Weldon, 73 Ind. 454.
lowa. Cowles v. Shaw, 2 Lowa 496.
Kan. Jordan v. Updegraff, MceCahon 103.
1 ee Hillman v. Hurley, 82 Ky. 626.
Miss. Blewitt v. Vaughn, 5 How. 418.
N. J: Cornelius v. Post,.9 N. J. Eq. 196.
N. Y. Griffin v. Winne, 79 N. Y. 637; Van Rensaelaer v. Griswold, 3 N. Y. Lez.
Obs. 94 (Wild lands); Stevens v. Beekman, 1 Johns Ch. 318.
N. C. Thompson v. McNair, 62 N.C. 121.
W.Va. Cox. v. Douglass, 20 W: Va. 175. Eng. Atty-Gen'l v. Hallett, 16 L. J.
Exch. 131, 16 M. & W. 569.
& Hatcher v. Hampton, 7 Ga. 49; Powell v. Rawlings, 38 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,! but a California case announced the con-
trary view;* and where the applicant for an injunction
urged that there was a mistake in the contract of salé 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. *
Injunctions against the cutting of timber have been granted
to prevent a multiplicity of suits.‘ Although damages
for such injury may be recovered at law, injunctions will
be granted to prevent the destruction of ornamental, shade
and fruit trees,® 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.* 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.’
But if timber has been cut after the issuance of a restrain-
ing order but before service thereof its removal will be en-
joined, * and where injunction lies to restrain further cutting

. Doke v. Peek, 45 Fla. 244, 84 So. 896.

. Sears v. Ackerman, 138 Cal. 583, 72 Pac. 171.

Swindell v. Saddler, 122 Ga. 15, 49 S. E. 753.

. 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.

. Cal. Silva v. Garcia, 65 Cal. 591, 4 Pac. 628.

Ti. Smith v. Price, 39 Ill. 28, 89 Am. Dec. 284.

Md. _ Shipley v. Ritter, 7 Md. 408, 61 Am. Dec. 371.

Neb. ‘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, ete.
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; Wil-
cox Lumber Co. vy. Bullock, 109 Ga. 532, 35 S. E. 52; Camp vy. 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
N. C. 388, 47 S. E. 478.

. Miss North Lumber Co. v. Gary, 83 Miss. 640, 36 So. 2. N.J. Worthington
v. Moon, 53 N. J. Eq. 46, 30 Atl. 251. N.Y. Van Wyck vy. 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 N. Y. App. Div. 610, 45 N. Y. Suppl. 376.

8- King v. Campbell, 85 Fed, 814.

PWN

or

“I!

INJUNCTION AGAINST VENDOR ‘OR PURCHASER 63

an accounting may be decreed for that already cut.!
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* 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 éstovers, or under an express or implied agreement or
license from the purchaser,® and by an injunction the
latter can restrain an unauthorized cutting.® <A judg-
ment debtor may be enjoined from committing waste in
the cutting of trees from the attached land. ‘

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.* 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. *

. Fleming v. Collins, 2 Del. Ch. 230; Weatherby v. Wood, 29 How. Pr. (N. Y.) 40-4.
. Terry v. Robbins, 122 Fed. 725.
Tessier v. Wise, 3 Bland. (Md.) 28.
. Staples v. Rossi, 7 Ida. 618, 65 Pac. 67.
. Smith v. Forbes 89 Miss. 141, 42 So. 382 (held liable for statutory penalty.)
But see Crawley v. Timberlake 37 N. C. 460 (clearing permitted in accord with
custom.)
6. Holmberg v. Johnson, 45 Kan. 197, 25 Pac. 575.
i Camp v2 Bates: 1. Conn. 51,27 Am, Dec: 707; Moulton v. Stowel) 16-N. H. 221:
Jones v. Britton 102 N. C. 166, 9S. EK. 554, 4 L. R. A. 178; See also Vandermark
v. Schoonmaker 9 Hun. (N. Y.) 16 and Witmer’s appeal 45 Pa. St. 455 8-t Am.
Dec.. 505.
8. Van Wyck v. Alliger 6 Barb. (N. Y.) 507. Laughlin v. North Wisconsin Lumber
Co. 176 Fed. 772. See also Moreton v. Reese, Wright (Ohio) 381.
o Bruley vsGarvin 105 Wis..625; 81 N. W..1038, 48 L. R.A. 839;

whe

64 REMEDIES FOR WASTE

Where the purchaser has no right to possession, ! or where
he is in possession merely by the acquiescence of the ven-
dor,? 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;* that none istobe cut
except for fuel or repairs; ‘ that proceeds of timber cut is
to be applied toward payment of the purchase price;®
that there shall be no cutting after default in payments, °
or that the purchaser shall hold asa tenant of the vendor. ’
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. §

$66 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;° that the injury is merely threatened; that
the plaintiff has shown no title; or that the insolvency
of the defendant has not been averred or proved; 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

. Phinney Land Co. v. Collidge-Schussler Co. 97 Minn. 2:x, ito N. W. Sods
Cook v. Doolittle 5 Hun (N. Y.) 342. cf. Brewer v. Craig, 18 N. J. L. 214.
Gumaer v. White Pine Lumber Co. 11 Idaho 591, 83 Pac. 771.
Lesser v. Dame, 77 Miss. 798, 26 So. 961.
. Willis v. Adams, 66 Vt. 223, 28th Atl. 1033.
. Nelson v. Graff, 12 Fed. 389.
. 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. Winne 10 Hun (N. Y.) 571.
11. Wearin v. Munson 62 Iowa 466; See also Small v. Slocumb 112 Ga. 279, 81 ‘Kae
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.

a SO

rT ~

.

oe AS TO PUBLIC LANDS 65

| Injunction is Available for the Protection of
eee : The United States enjoys the

es ae citations under note 6 p. 62. Fla. General Statutes, 1906, Sec. 1919. Ga. Code of
1895, See. 4927 and 4928. If Pl. shows title and gives bond, need aot show in-
solvency of def. or irreparable injury. Minn. General Statutes, Tiffany, 1913,
: - Sec. S089. N. C. Revised Laws, Pell, 1908, Vol. 1 Secs. 807 to 809, not neces-
6 sary to allege insolvency. Tenn. Code, Shannon, 1896, Sec. 3820, 3821. Wash.
ss Codes & Statutes, Remington & Ballinger, 1910, Sec. 941. ,
re 2. U.S. v. Lee, 106 U. 8. 222. Dugan vy. U.S. 3 Wheaton 181. Stephenson vy. Little
rae etal. 10 Mich. 4383. 1 Opin. Atty. Gen. 471, May 27, 1821; 2 Op. Atty. Gen.
1. 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 the injunction would do no harm but no affirmative reason for its
issuancewas 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, ! and-the
‘offense will be established though the actual injury shown
be only slight,” or even though no damage whatever be
proven.* 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.‘ 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, ° and actual dam-
ages may be recovered even when the trespass was not
wilful. The burden of proving the act unintentional
rests upon defendant.’ However, only nominal damages

1. Tubbs v. Lynch, 4 Harr, (Del.) 521; Pfeiffer v. Grossman, 15 Ill. 53 Hatch vy.
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. Warfield, 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. Clearfield 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

ean be recovered in trespass if the timber taken belonged
to the trespasser! or there was no actual injury.2 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 violation 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 wilfulness is upon the
plaintiff. #

A bona fide 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.° 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‘
and the construction of a telephone line in a different place
than that designated when the permission was given, °
have both been held to constitute trespass. The more
logical remedy in such cases would evidently be trespass
upon the case.

S69 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, 14 Ark. 431; Whittier v. Sanborn, 38 Me. 32; Plumer v. Prescott,
43 N. H. 277; Dame v. Dame; 38 N. H. 429, 75 Am. Dec. 195.

2. Elbridge v. Gorman, 77 Conn. 699, 60 Atl. 643; Ballio v. Burney, 3 Rob. (La.)
317; Loomis v: Green, 7 Me: 386; Clark v. Hart GMiss. 18S87),.3 So. 33; Keirn v.
Warfield, 60 Miss. 799; Huddleston v. Johnson, 71 Wis. 336, 37 N. W. 407;
U. Sv. Mock: 149 U.S: 273>\See U.S: v. Humphries, 149 U.S. 277.

3. Southern R. Co. v. McEntire (Ala. 1910), 53 So. 158; Teller v. United States, 113
Fed. 273.

4. Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 63 S. E. 270.

5. Higginson v. York, 5 Mass. 341; Fisher v. Naysmith, 106 Mich. 71, 64 N. W. 19;
Scribner v. Young, 111 N. Y. App: Div. 814, 97 N. Y. Suppl. 866; Hazelton v.
Week, 49 Wis. 661, 6 N. W. 309, 35 Am. Rep. 796.

. Pearson v. Inlow, 20 Mo. 322, 64 Am. Dec. 189.

. Shiffer v. Broadhead, 126 Pa. St. 260, 17 Atl. 592.

» Burnett Vv; Postal. Tel: ete:.Cable Co:,:79'S..C: 462, 60:8. EB. 1116.

[0 es nor)

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. !
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, ? or
no one isin possession.* If possession alone is relied upon
it must be actual‘ 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. ®

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, * 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.’ 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. ®

1. Whiddon v. Williams Lbr. Co., 98 Ga. 700,°25 S. 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. Li 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, 45S. E. 539.

4. Webb v. Sturtevant, 2 Ill. 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, 54S. E. 944. Branch v. Mosrrion 51 N. C, 16.

. Dorrell v. Johnson, 17 Pick. (Mass.) 263.

. 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; Sheak
v. Mundorf, 2 Browne (Pa.) 106; But see, Russell v. Fabyan, 34 N. H. 218.

8. Monahan vy. Foley, 4 U, C. Q. B. 129.

NO

ADVERSE POSSESSION 69

.The grantee! or lessee? 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. °

Any one owning trees standing upon the land of another
can maintain the action of trespass quare clausum fregit for
any injury to them,?* either by a stranger after entry by
the purchaser,® or by the owner of the land,*® and a
qualified interest in the trees gives sufficient possession for
the maintenance of the action.” In such cases the title
in the trees may arise either from a reservation in a grant
of the land,*® or from a direct grant of the trees.° A
mere license '® to enter upon land and cut trees, an agree-
ment of sale giving a certain time for removal, !! which is
effective only as a license, or a mere stipulation by a lessor
that the trees shall not be cut * 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; but in some Juridsictions, although action
on the case is the only remedy for severance, trespass Is

1. Cohen v. Bryant, 65 S. W. 347, 23 Ky. L. Rep. 1448.

2. Brock v. Smith, 14 Ark. 431.

3. Dygert v. Matthews, 11 Wend. (N. Y.) 35.

4. Gronour v. Daniels, 7 Blackf. (Ind.) 108; Haskin v. Record, 32 Vt. 575; But see,
Whitehouse Cannel Coal Co. v. Wells, 74.8. W. 736, 25 Ky. L. Rep. 60.

5. Goodrich v. Hathaway, 1 Vt. 485, 18 Am. Dec. 701.

6. Narehood v. Wilhelm, 69 Pa. St. 64.

7. Burleigh Tp. etc. Corp. v. Hales, 27 U. C. Q. B. 72.

8. Goodwin v. Hubbard, 47 Me. 595; Phillips v. DeGroat, 2 Lans. (N. Y.) 192;
Schermerhorn v. Buell, 4 Den. (N. Y.) 422; Robinson v. Gee, 26 N. C. 186;
Greber v. Kleckner, 2 Pa. St. 289; Irwin v. Patchen, 164 Pa. St. 51, 30 Atl. 436.

10. Fletcher v. Livingston, 153 Mass. 388, 26 N. E. 1001.
11. Gates v. Comstock, 107 Mich. 546, 65 N. W. 544.

12. Schermerhorn v. Buell, 4 Den. (N. Y.) 422.

13. Jarvis v. Edgett, 6 N. Brunsw. 66.

70 CIVIL TIMBER TRESPASS

allowed for the asportation.! 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.” Although some decisions seem
to be to the contrary,* the weight of authority is that the
occasional cutting of timber on land,* or repeated oceu-
pancy for short periods, as during sugar making seasons,
even though the practice be continued annually for the

\

. 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, 60 Am.
St. Rep. 531, 36 L. R. A. 155. ,

3. Brett v. Farr, 66 Iowa 684, 24 N. W. 275; Forey v. Bigelow, 56 Iowa 381, 9 N. W.
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 Ill. 578; Brooks v. Bruyn,
18 Ill. 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 vy.
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.
th. Travers v. McElvain, 181 Ill. 382, 55 N. E. 135; Austin v. Rust, 73 IL
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. Millett 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 Cush. 129.
Mo. Robinson v. Claggitt, 145 Mo. 153, 50 S. W. 280; Carter v. Hornback, 139
Mo. 238, 40 8S. 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.
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 N. 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.
58. C. McBeth v. Donnelly, Dudley (S. C.) 177; White v. Reid, 2 Nott & 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 8S. 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,! 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. *

§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, * but
it does revoke any license that has been given for the cutting
- of timber thereon.* 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, ° nor will
authority from a widow before the assignment of dower
afford protection from an action of trespass.° It has
even been held that the licensor may revoke the license
as to wood already severed and maintain trespass for a
subsequent removal’ 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. ®

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 8. 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 Ill. 246, 56 N. E. 371 (Aff’m’g 84 Ill. 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 Nev. 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 McOrary 586 (Aff’d in 119 U. S. 561, 7 Sup. Ct. 323, 30 L. Ed. 513.)

. Jarvis v. Edgett, 6 N. Brunsw. 66.

. Lowery v. Rowland, 104 Ala. 420, 16 So. 88.

. Buker v. Bowden, 83 Me. 67, 21 Atl. 748.

- Yale v. Seely, 15 Vt. 221 (1843).

aONan

72 CIVIL TIMBER TRESPASS

ancy, or against the tenant himself fora taking after the
severance, ? at least if the taking is at another time from
the severance.* 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, ®
even though the removal within the limited time was pre-
vented by the plaintiff.° While some courts hold that he
still has title and that no damages can be recovered for
the value of the timber,’ others hold that all interest in
the timber is lost and full damages can be recovered ®
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 ®
even though the offender be the land owner.” 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, 1! except where the terms
of the agreement were such as to give the one severing them
possession in the form of a lien. ”

‘

_

. 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. Daffin, 149 Ala. 380, 42 So. 858, 123 Am. St. Rep. 58, 9
L. R. A. N. 8. 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. Daffin, 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. Kiske 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 ts

$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.! In fact the trespasser can acquire no rights as
against the true owner who may without legal liability ap-
propriate the timber product ? upon which the trespasser
has bestowed labor and enjoy the benefit of such expendi-
ture. * 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, ? even though they have been
made into charcoal, ° or the full value of the trees has been
paid in a compromise of the action. ® Nor does a trespasser
acquire the title to severed timber necessary to support
an action against a stranger.’ 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 * or implied;° and so is one who advises or
encourages the trespass. 1”

$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 clausum
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, '! 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. !? The determination of the amount of damage
done to the land will often rest largely, or entirely, upon

i Glenwood Lbr. Co. +. Phillips (1904) A.C. 405; 73. LJ. BP. C..62, 90 L. T., Rep.
Neo. pate OCL. b. Re S81,
2. Burris v. Johnson, 1 J. J. Marsh (IXy.) 196; Stevens v. Perrier 12 Kan. 297.
3. Bush v. Fisher, 89 Mich. 192, 50 N. W. 788; Stewart v. Tucker, 106 Ala. 319, 17
So. 385. Gates v. Rifle Boom Co. 70 Mich 309.
4. Loomis v. Green, 7 Me. 386.
5. Curtis v. Groat, 6 Johns, (N. Y.) 168, 5 Am. Dec. 204.
6. Betts v. Lee, 5 Johns (N. Y.) 348, 4 Am. Dec. 368.
7. Brock v. Smith, 14 Ark. 431; See Carpenter v. Lewis, 6 Ala. 682.
8. Cook v. Amer. Exch. Bank, 129 N. C. 149, 39 S. E. 746; Chandler v. Speer, 22 Vt.
388; State v. Smith, 78 Me. 260, 4 Atl. 412, 57 Am. Rep. 802.
9. Marshall v. Eggleston, 82 Ill. App. 52; Sanborn v. Sturtevant, 17 Minn. 200.
10. Quillen v. Betts, 1 Pennew (Del.) 53.
11. Davies v. Miller-Brent Lbr. Co., 151 Ala. 580, 44 So. 639.
12. Trustees Dartmouth College v. Intn’l Paper Co., 132 Fed. 95.

ry

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, ! 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.? 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 eutting,
exceeds the diminution in the market value of the land
the larger amount should be allowed in damages.* 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. ®°. This rule has been applied in the
case of trees in a sugar bush,® fruit trees,’ 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 Io. 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. Chipman v. Hibberd, 6 Cal. 162; Wallace v. Goodall, 18 N. H. 439, 456; Gilman
v. Brown, 115 Wis. 1, 91 N. W. 227; United States v. Chicago, Mil. & St. P. R.
Co. 207 Fed. 164, (Aff’d in 218 Fed. 288.); Doak v. Mammoth Copper Min. Co.
192 Fed. 748 (1911) Trees injured by smelterfumes. In U.S. v. Bailey, Receiver
Mo. R. & N. W. Ry. Co. ete. (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.
Ill. Louisville E. & S. L. C. R. R. v. Spencer, 149 Ill. 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 Ia. 131, 50 N. 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 10

1 a wind break, ' shade trees,’ and in other cases where
he value of the trees after severance was not equivalent
the damage done. If the trees cut by a trespasser are
earried away by him the action for redress should
most instances be brought in replevin or trover.

_-§%5. ~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 7 concluded from preceding page)
St. Louis & 8S. F. Ry. v. Hoover, 3 Kan. App. 577, 43 Pac. 854 (fire) (rea-
” sonably prudent operation of engine required.)
; Atchison T..& S. F. Ry. -v. Geiser 68 Kan. 281, 75 Pac. 68.
Mo. Doty v. Quincy, 0. & K, C. R. R., 136 Mo. App. 254, 116.8. W. 1126 (fire).
N. H. Foote v. Merrill, 54 N. H. 490, 20 Am. Rep. 151.
No Y. Dwight v. Elmira Htc. R. Co. 132 N.Y. 199, 30. N. EB. 398, 28: Am. St. Rep.
563, 15 L. R. A. 612; Carter v. Pitcher 87 Hun 580, 24 N. Y. Suppl. 549.
7" Tex. Galveston Etc. R. Co. v. Warnecke, 43 Tex. Civ. App. 83, 95 S. W. 600.
a 1, Nixon v. Stilbvell,52 Hun. (N. Y.)353,5 N. Y. Suppl. 248,
. Coun. lKldridge v. Gorman, 77 Conn. 699, 60 Atl. 643.; Hoyt v. Southern New E.
Tel. Co. 60 Conn. 385, 22 Atl. 957.
Del. Jordan v. Delaware & A. T. Co. 75 Atl. 1014 (1909).
Ind. Delaware & M. C. T. Co. v. Fisk, 40 Ind. App. 348, 81 N. E. 1100 (1907).
7 Iowa. Meyer v. Standard Tel. Co. 122 Ia. 514, 98 N. W. 300 (exceeded license.)
: Kan. Wichita G. E. L. & P. Co. v. Wright 9 Ikan. App. 730, 59 Pac. 1085 (Gas).
La. Tissot v. Great S. T. & T. Co., 39 La. Ann. 996, 3 So. 261.
Me. Longfellow v. Quimby, 33 Me. 457.
Mass. Pinkerton v. Randolph, 200 Mass. 24, 85 N. E. 892. (In street).
N. Y. Edsall v. Howell 86 Hun. 424, 33 N. Y. Suppl. 892; Gorham v. East-
chester El. Co. SO Hun 290, 30 N. Y. Suppl. 125 (1894); Nixon v. Stil-
well 52 Hun. 353, 5 N. Y. Suppl. 248; Ferguson v. Buckell, LOL App. Div.
213, 91 N. Y. Suppl. 724 (Trees about summer home.)
N. D. Cleveland School Dist. v. Gt. Northern Ry., 20 N. Dak. 124, 126 N. W.
OVS nes la TR. As GN. Ss) 257.
3. Cal. Cleland v. Thornton, 43 Cal. 437.
Ga. Western & A. BR: BR. v. Tate, 129 Ga. 526, 59 S. EL. 266; Smith y. Gonder, 22
Gan sos.
Ill. Birket v. Williams, 30 Ill App. 452. (Trees in nursery).
Ind. Halsted v. Sigler 35 Ind. App. 419, 74 N. HE. 257.
Towa. Leiber v. Chi. M. & St. P. Ry. 84 Ia. 97, 50 N.W. 547. Greenfield v. Chicago
Etc. R. Co. 83 Iowa 270; 49 N. W. 95; Graessle v. Carpenter 70 Ia. 166.
Freeland v. Muscatine, 9 Iowa 461; Krejei v. Chi. ete. R. Co. 117 La.
344,90 N. W. 708.”
Kan. Missouri, kK & T. Ry. v. Steinberger, 6 Kan. App. 585, 51 Pae. 623. Mis-
souri, Kk & T. Ry. v. Lycan 57 Kan. 635, 47 Pac. 526. Atchison, Ete. R.
Co. v. Hamilton, 6 Kan. App. 447;50 Pac. 102; Ateh. ete. R. Co. v. Eemer-
“J son, 50 Pac. 70.
Ky. Lindsay v. Latham 107 8, W. 267, 32 Ky. L. Rep. 867; Louisville & N.
ag R. R. v. Beeler 126 Ky. 328, 103 S$, W. 300, 11 L. R. A (N. 8.) 930:
Meehan v. Edwards 92 Ky. 574, 18 8. W. 519.
Guarantee T. & S. D. Co. v. Holsell, 107 La. 745, 31 So. 999. Stoner v.
Tex. & Pac. Ry. 45 La. Ann. 115, 11 So. 875.
Cutts v. Spring 15 Mass. 135 (1818); Bliss v. Ball 99 Mass. 597, 97 Am.
(Footnote 3 continued on next page)

one

wR

76 CIVIL TIMBER TRESPASS

Jand! according to which gives the highest measure of damages.”
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. * 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. :Carner v. Chicago, St. P. M. & O. Ry. 43 Minn. 375, 45 N. W. 713.

Mo. Atkinson 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.
. Beede v. Lamprey, 64 N. H. 510, 10 Am. St. Rep. 426.
Delaware Etc. R. Co. v. Salmon, 39 N. J. L. 316, 23 Am. Rep. 214. .
. Whitbeck v. N. Y. C. R. R. 36 Barb. (N. Y.) 644.
Chase v. Clearfield Lbr. Co. 209 Pa. 422, 58 Atl. 813.
Spink v.N. Y. N. H. & H. R. R, 26 R. I. 115, 58 Atl. 499.
White v. Chicago Etc. R. Co., 1 S. Dak. 326.
. Burke v. Louisville Etc. R. Co. 7 (Heisk) 451, 19 Am. Rep. 618.
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 8S. E. 110 (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 vy. Hibbard, 6 Cal. 162.
Del. Bullock v. Porter 77 Atl. 943 (1910) fire.
Ky. Kentucky Stave Co. v. Page (1910) 125 8S. 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 (Aff'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 vy. Erie R. Co., 51 Barb. 94; Harder v. Harder,
26 Barb. 409; Cook vy. 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 8S. 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. Chicage etc. R. Co.,
3 8. 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.

OPS AAA
Or de

4d
+o
5

(Footnote 3 continued on next page)

HIGHEST MEASURE OF DAMAGES Pare

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, * 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.? In timber eases as
in others speculative damages will not be allowed, ° but
damages may be exemplary. ®° Damages have been given
for the destruction of immature timber trees which had no
market value. ’

(Footnote 3 concluded from preceding page)
N. C. Whitfield v. Rowland Lbr. Co. 152 N. C. 211, 67 S. E. 512. Gaskins v.
Davis, 115 N. C. 85, 20 8S. E. 188, 44 Am. St. Rep. 439, 25 L. R. A. 812.
Ore. Oregon & C. R. R. v. Jackson, 21 Ore. 360, 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 Ont. 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 (1890).
N. Y. Morrison v. American Tel. Co., 115 N. Y. Appl. Div. 741, 101 N. Y. Suppl.
140.
Argotsinger v. Vines, 82 N. Y. 308.
2. Conn. Hoyt v. Southern N. E. Tel. Co. 60 Conn. 385, 22 Atl. 957.
Kan. See Atchison v. Geiser (Kan.) 75 P. 68.
N. Y. Donahue v. Keystone Gas. Co., 85 N. Y. S. 478.
Wis. Miller v. Neale, 137 Wis. 426, 119 N. W. 94.
Gilman vy. Brown, 115 Wis. 1, 91 N. W. 227.
But see Missouri Pac. R. Co. v. Haynes, 1 Kan. App. 586, 42 Pac. 259,
(Value annual crop of fruit too speculative as basis of damages.)
3. Schlater v. Gay, 28 La. Ann. 340 (1876); Walrath v. Redfield, 11 Barb. (N. Y.)
368, (1851).

Ae sSpinien: Noo. IN, O..do H.R. Ri 'Co,,.26 8: 1s 115 (1904):

5. Longfellow v. Quimby, 29 Me. 196, 48 Am. Dec. 525; Lee v. Briggs, 99 Mich. 487.
See Hayden v. Albee, 20 Minn, 159 (overflow,) Mackey et al v. Olssen, 12 Ore.
429. (road cost); Griffen v. Colver, 16 N. Y. 489 (Sawmill case.)

Kolb v. Bankhead, 18 Tex. 228. Tissot v. Great South. Tel. & Tel. Co. 39 La.
Ann. 996. See Barry v. Edmunds, 116 U. 8S. 550 (1885); Day v. Woodworth
13 How. 362, 371 (1851).
. Colo. See Manitou & P. P. Ry. v. Harris, 45 Col. 185, 101 Pac. 61 (1909) (Par-
tially burned.)
Ga. Central R. R. & B. Co. v. Murray 93 Ga. 256, 20 8. E. 129 (Fire).
Iowa Burdick v. Chicago, M. & St. P. Ry. 87 Ia. 384, 54 N. W. 439. Striegel
v. Moore 55 Ia. 88; See Leiber v. Chicago M. St. P. & O. Ry. 84 Ia. 97,
50 N. 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, 180 N. W. 313.
Minn.§ Hoye v. Chicago, M. & St. P. Ry. 46 Minn. 269, 48 N. W. 1117. (Fire,
ti) = engine must have best spark arresters available.)
(Footnote 7 continued on next page)

ba |

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 clausum fregit, 1 trespass de bonis asportatis
for the damage done in the carrying away of the severed
trees,? an action in replevin for the specific recovery of
the trees taken, or their value, * an action in trover for
the value of the property converted, ¢ or, waiving the
tort, he may bring an action of implied assumpsit for the
value ® or one for money had and received for his use. ®
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.’ If the owner is not in pos- —
session of the land he may enter and take possession of
the timber, * 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.’ 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, ” trover, 4

(Footnote Pconcluded 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, 8S. 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. Clearfield 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).
. Milltown Lumber Co. v. Carter, 5 Ga. App. 344, 63 S. E. 270.
. Taylor v. Burt etc. Lbr. Co., 109 S. W. 348, 33 Ky. L. Rep. 199; Dennis v. Strunk,
108 8S. 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 Ill. 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.

Whidden v. Seelye, 40 Me. 247, 63 Am. Dec. 661; Moody v. Whitney, 34 Me. 563.

. Milltown Lbr. Co. v. Carter, 5 Ga. App. 344, 63 S. E. 270.

Wall v. Williams, 91 N. C. 477.

Trustees Dartmouth College v. Intn’1] Paper Co., 132 Fed. 92, 94.

Clark v. Holden, 7 Gray (Mass.) 8, 66 Am. Dec. 450.

. Wall v. Williams, 91 N. C. 477.

Richardson v. York, 14 Me. 216; Warren County v. Gans, 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. 111, 13 So. 386; Warren County v. Gans, 80 Miss. 76;

Schermerhorn v. Buell, 4 Den. (N. Y.) 422. eas

Noe

SORN AWB

_

VV —

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; ? nor does replevin le against a
co-tennant for seizing and holding timber which the first
tennant has cut for removal from the common land, * 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-tenantsin trover or trespass. + 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. *
If no question as to title in land is involved, ° 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. °

§77. Recovery by Replevin. Where the circumstances
are such as to sustain the action of replevin the owner may
not only recover the logs ® 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. Garfield, 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. S. 482, 6 S. Ct. 114, 29 L. Ed. 454; See also, LeBarren
v. Babcock, 46 Hun. (N. Y.) 598, (affd. 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 Ill. 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. 8. 218, 15 S. Ct. 347, 39 L. Ed. 403.

9. Firmin v. Firmin, 9 Hun. (N. Y.) 572; Nesbitt v. St. Paul Lbr. Co., 21 Minn. 491;
Bly v. U. 8., 4 Dillon 464 (U. 8. Cir. Ct. Minn. 1867).

80 CIVIL TIMBER TRESPASS

rees as long as indentification is possible and regain possession
of railroad ties,’ rails and posts, ? lumber,’ staves, 4
shingles, *® cordwood,® charcoal,’ or other goods and
articles manufactured from the trees.* 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.*° 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.” 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 ™ or
against one who removes the trees under claim of a purchase
of them subsequent to the first purchase. ”
If it be established by the owner that the trees were cut
not only unlawfully but wilfully i. e., deliberately * by
one who knew “ the trees did not belong to him—the

1. Eaton v. Langley, 65 Ark. 448; Stotts v. Brookfield, 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). he
3. Davis v. Easley, 13 Ill. 192; Wingate v. Smith, 20 Me. 287; Brown v. Sax, 7 Cow.
(N. Y.) 95.
4. Heard v. James, 49 Miss. 236.
5. Betts v. Lee, 5 Johns (N. Y.) 348, 4 Am. Dec. 368; Chandler v. Edson, 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 Ia. 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 Metc. 333, 46 Am.
Dec. 680.
9. Whetherbee v. Green, 22 Mich. 311, 7 Am. Rep. 653.
10. Anderson v. Hapler, 34 Ill. 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. ‘

OE

> »

RECOVERY BY REPLEVIN 81

article or goods manufactured from the trees if capable of
identification may generally be taken from an ‘innocent
purchaser,! as well as from one havng notice of the
wrongful cutting, ? however great may have been the change
in form since the cutting * Where the manufactured arti-
ele 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.* 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.® If the identity of the article wrongfully
taken is destroyed, the original owner must bring his action
for conversion, ° and he may then recover the value at the
time when the identity was destroyed. ”

$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.* 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, °
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 vy. Little Rock etc. R. Co., 44 Ark. 210. Blodgett v. Seals, (Miss.) 29
So. 852.
. Nelson v. Graff, 12 Fed. 389.
. Gray v. Parker, 38 Mo. 160.
. Silsbury v. McCoon, 3 N. Y. 379, 53 Am. Dec. 307 (corn converted into whiskey).
. 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.
Brookfield, 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 Dict., Bouvier, p. 2016.

9. Gillet v. Roberts, 57 N. Y. 28.

orm & bo

82 CIVIL TIMBER TRESPASS

right.! <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.? In an action of trover the law of the place
where the conversion took place * and that which was in
effect at the time‘ 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 ° or by
the one who has actual possession of the land at the time. ®
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 * to maintain
the action and cannot rely upon the weakness of the de-
fendant’s claim. ° 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.

The conversion of a part of a lot of personal goods under
circumstances which indicate an intention to convert all

SRaes:

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, 49So. -

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 Ney. 44.

3. Holbrook v. Bowman, 62 N. H. 313; Torrance v. Buffalo Third Nat'l Bank, 70
Hun. (N. Y.) 44, 23 N. 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. Schofield, 41 Wis. 167.

. McCoy v. Herbert, 9 Leigh (Va.) 548, 33 Am. Dec. 256.

U.S. v. Loughrey, 172 U. S. 206, 19 Sup. Ct. 153, 43 L. Ed. 420.

. Moore v. Walker, 124 Ala. 199, 26 So. 984.

_
oD mN

. Searles v. Oden, 13 Neb. 344, 14 N. W. 420; Lyon v. Sellew, 34 Hun. (N. Y.) 124. -

CONVERSION OF TIMBER 83

will amount to a conversion of all, ! 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.? Conversion by an agent will
ordinarily render his principal liable, * 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.* 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. ®

§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
_ ease 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 Satterfield v. Western Union Tel. Co., 23 Ill App.
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; Ross
v. McGriffin, 2 Tex. App. Civ. Cas. 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; '!
their value while standing plus the defendant’s profit;?
the profit received by defendant; * their value immediately
after severance;* their value after severance, less de-
fendant’s expense of severing;*® their value after sever-
ance less what it would have cost the plaintiff to sever
them; °* 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; * their value at the
time of the bringing of an action, or at the time of demand
after severance, less the expense of improvement. °

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 plaze before 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 vy. 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 vy. U. S., 119 Fed. 562, 56 C. C. A. 128; Herdic v. Young, 55 Pa. St. 176, 93
Am. Dec. 739.

cm

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-
eence. 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 quare clausum fregit, the faithful appleation 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 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 chiefly 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 eutting
and carrying away of merehantable 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 sey-
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. 4

1. Ark. Cf. Eaton v. Langley, 65 Ark. 448.

Mich. See citations under note 2, page 92.

Minn. State vy. Clarke, 109 Minn. 123, 123 N. W. 54; Hasty v. Bonness, 86 N. 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 N. W. 81; King v.
Merriman, 38 Minn. 47, 35 N. W. 570; Whitney v. Huntington, 37 Minn.
197, 33 N. W. 561; Hinman yv. Heyderstadt, 32 Minn. 250, 20 N. W. 155
(Grass). [Distinguishing Nesbitt 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 y. St.
Louis etc. R. R. Co. 31 Mo. 262 (value of soil taken.)

N. Y. Fergusen v. Buckell, 101 N. Y. App. Div. 213, 91 N. Y. Suppl. 724;
Clark v. Holdridge 12 N. Y. App. Div. 613, 43 N. Y. Suppl. 115 (1897).
(Misinterprets Woodenware Co. v. U.S. 106 U. 8S. 432; contra
Firmin 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. f

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. vy. Pickering (Tex. Cir. App. 1909) 119 S. W. 333;
Callen vy. Collins (Tex. Civ. App. 1909) 120 S. W. 546; Pettit v. Froth-

(Footnote 1 continued on next page)

CONVERSION BY AN INNOCENT TRESPASSER S7

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, 106 S. W. 907; Young v. Lumber Co
(Tex. Civ. App.) 100 S. W. 874; Messer v. Walton 42 Tex. Civ. App. 488,
O28. W. 1037: Téx:. & NO). RR: Co. v- Jones: 34 Tex, Civ. App. 943.77
S. W. 955; Texas etc. R. Co. v. White, 25 Tex. Civ. ‘App. 278 (Sand).

Vt. Whiting v. Adams 66 Vt. 679, 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 Vt. 628, 36 Am. Rep. 769 (Severed value, in trover for logs.)

Wash. Chappell v. Puget Sound Reduction Co., 27 Wash. 63, 67 Pac. 391.

W.. Va. Darnell v. Wilmoth 72 S. E. 1023 (1911).

U.S. Morgan v. U. S. 169 Fed. 242; Dartmouth College v. Int’] Paper Co. 132
Fed. 92; U. 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 46 Fed. 350, 353, and U. 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.
vw. U.S. 106.0. S: 482, 1S. Ct, 398; 27 L. Ed. 230, (Oct; 1882). See G.L.
O. Regulations, March 1, 1883; 1 L. D. 695.

Eng. See Eardley v. Granville, 3 Ch. D. 826, 45 L. J. Ch. 669, 34 L. T. Rep. N.S
609, 24 Wkly. Rep. 528; Fleming v. Simpson, 6 L. J. kK. 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. 6 Ch.
App. 742.

Text Writers: Sedgwick on Damages, 9th. Ed. Pub. Baker, Voorhis & Co. N. Y.,
1912, Vol. 3 p. 1927, (Stumpage value).
sutherland on Damages, 3d Ed. Pub. Callaghan & Co. Chicago, 1904, Vol.

4, p. 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. 46; White v. Yawkey,
LOS Ala. 270; 19 So. 360;,.54 Am, St.. Rep... 159, 32 L.. RK. A..199> Ivey v.
MeQueen, 17 Ala. 408.

Cal. Sampson v. Hammond, 4 Cal. 184.

Conn. Eldridge v. Gorman, 77 Conn. 699, 60 Atl. 643; See Baldwin v. Porter, 12
Conn, 484.

Fla. Peacock v. Feaster, 40 So. 74; Wright v. Skinner, 34 Fla. 453, 16 So. 335.

Ga. Coody v: Gress Lbr. Co..82 Ga. 793, 10 S. E. 218; Smith v..Gonder, 22 Ga.
353 (Specifically stated.)

Ind. Ellis v. Wire, 33 Ind. 127, 5 Am. Rep. 189 (Corn).

Kan. Arn. v. Matthews, 39 Kan. 272, 18 Pac. 65 (Value where cut or at nearest
market.)

Ky. See Dennis v. Strunik,.108:S: W, 957; 32: Ky. li. Rep; 1230.

La. Ball br: Co: ve Simms iLbr, Co, 121 La. 627, 46 So. 674, WSL. BRB. A. N: 8;
244; St. Paul v. Louisiana Cypress Lbr. Co., 116 La. 585, 40 So. 906;
Guarantee: Trust ete. Co. v. Drew Inv. Co,, 107 La. 251, 31 So. 736;
Gardere v. Blanton, 35 La. Ann. 811; Sehlater v. Gay, 28 La. Ann. 340;
Yarborough v. Nettles, 7 La. Ann. 116; Eastman v. Harris, + La. Ann.
193; Shepard v. Young, 2 La. Ann. 238: Watterson v. Jetche, 7 Rob. 20.

Me. Moody v. Whitney, 38 Me. 174, 61 Am. Dec. 239; Cushing v. Longfellow,
26 Me. 306.

Md. Peters v: Tilghman, 111 Md. 227, 73 Atl. 726; Blaen Co. v. McCwlough,
59 Md. 403, 43 Am. Rep. 560; 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. Griffin, 74 Miss. 599, 22 So. 187; 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 courts
ae...

(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 vy. Firmin, 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 Wisc. 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,
(Aff’g 114 Fed. 722, which, however, awarded standing value, the sey-
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. 8.
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 ease 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 damages specificaily 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. 1

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. 8S. v. Northern Pac. R. Co., 67 Fed. 890 (1895); Gentry v. U. S., 101 Fed. 51.
41 C. C. A. 185 (1900); U. S. v. Teller, 106" Fed. 447, 45 ©. C. A. 416
(1901); U. 8. 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.

See 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.”

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. *

$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. +
A later case held that this was the rule even though the
cutting and carrying away were done knowingly and wil-
fully. ° At the first session of the Wisconsin legislature
following the announcement of this doctrine, an act ® was
passed providing th’t where trees were unlawfully cut the

oo

1. (a) See United States decisions cited under Note 1, page 87.

Bunker Hill & Sullivan Min. & Con. Co., 226 U. 8. 548, affm. 178 Fed. 914

. (Case as reported does not show finding of jury, but court specifically instruct-
ed jury that measure of damagesfor innocent trespass was value of trees after
they were cut down.)

(b) 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; Cushing v. Longfellow,-26 Me. 306;
Ayres v. Hubbard, 37 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.

. Single v. Schneider, 30 Wis. 570 (decided in 1872).

. Chap. 263, Laws of 1873, Wis. St. (1898) Sec. 4269.

Q on

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 ?
The act does not apply where the cutting was done under a
bona fide claim of title. * 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.* 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,*® and also where the timber cut was not within
the terms of a contract held by the defendant for the re-
moval of timber.® The statute does not apply to an in-
nocent purchaser who takes from a trespasser,’ and notice
on the part of the purchaser will not be presumed but must
be proven by the plaintiff.2 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.° 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 eases 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, 511 Wis. 443, 8 N. W. 273; See, Wabster 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. Bosworth, 58
Wis. 379, 17 N. W. 241; Cf. Cohen v. Neeves, 40 Wis. 393.
3. Befay v. Wheeler, 84 Wis. 135, 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. Oconto Co.,
134 Wis. 426, 114 N. W. 823; Smith v. Morgan, 68 Wis. 358, 32 N. W. 135;
Fleming v. Sherry, 72 Wis. 503, 40 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.
8. 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.* 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
eround 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.
determination.

§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.* 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 vy. 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; Bolles
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. 8.178, 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. 8S.
not divested by sale, 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., witha
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. !

1. Ark. Nicklase v. Morrison, 56 Ark. 553, 20 S. W. 414.
Colo. Omaha & G. 8S. & 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 Ia. 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 Loknte
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 8. 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 vy. Sax, 7 Cow. 95.
Nev. Ward v. Carson River Wood Co., 13 Nev. 44.
Tenn. Holt v. Hayes, 110 Tenn. 42, 73 8S. W. 111. :
Tex. Bayle v. Norris, (Tex. Civ. App.) 134 8. 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 8. 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. !

§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, * 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. S. 432, 1 8. 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,
affm. 178 Fed. 914.
Can. 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; Saltmarsh v.
Chi. & G. T. Ry. 122 Mich. 103, 80 N. 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 Nev. 44.
N. Y. Silsbury v. McCoon, 3 N. Y. 379,.53 Am. Dec. 307; Cf. Wallingford v.
Kiser, 191 N. Y. 392, 84 N. E. 295, 123 Am. St. Rep. 600, 55 L. R. A. N.
S. 1126 (Aff’'m'd 110 N. Y. App. Div. 503, 96 N. Y. Suppl. 981).
Tenn, Godwin v. Taenzer, 122 Tenn. 101, 119, S. W. 1132; See McGill v. Chil-
house Lbr. Co., 111 Tenn. 552, 82 S. W. 210. .
Tex. Missouri Kan. & Tex. Ry. Co. v. Starr (Tex. Civ. App) 55 8S. 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. Bly v. United States, 4 Dillon 464 (C. C. 8th Dist.) é

EXEMPLARY DAMAGES FOR WILFUL TRESPASS 95

ble.! The character of evidence necessary to indicate
wantonness on the part of the trespasser has been defined, ?
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.* If the trespass is
proven or admitted, the burden of proof is upon the de-
fendant to show that it was not wilful,‘ 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, ° or when the
conduct of the trespasser was grossly negligent, ° reckless, ”
wanton, ® malicious, ® or fraudulent. ° It has been held
that exemplary damages may be given even when the plain-
tiff does not recover substantial actual damages; " but they
will not be given if the cutting was done under a bona fide
claim of right and with no fruadulent purpose or inten-
tional wrong, except where there are aggravating cireum-
stances. * 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. *

1. Kentucky Stave Co. v. Page (Ky. 1910), 125 S. W. 170.

2. Faris v. Amer. Tel. etc. Co., 84S. C. 102, 65 S. E. 1017.

3. U. 8S. v. Homestake Min. 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. Page, 68 Minn. 269, 71 N. W. 4; Trustees Dartmouth
College v. Int'l Paper Co. 132 Fed. 99.

5. Bentley v. Fisher Lbr. ete. 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 vy. 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. 8. 550; Berry v. Fletcher, 1 Dill. 67; Refused in N. J. where no peculiar
injury, Hollister 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. Cas. 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 8S. 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; Gwaltney 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,! 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, 7 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. * 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. *' 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. °

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 publie land. !

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)

Til. 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, Secs. 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, Secs. 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, Secs. 5448-5449.

Mont. Revised Code, 1907, Sec. 2096 (planted trees); Secs. 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.)

8. D. Revised Code, 1903, Sec. 2323 of Civil Code (Treble damages).

Utah Compiled Laws, 1907, Sec. 3508 (Treble dama_es); Sec. 1126 (planted
trees, treb!e damages).

Vt. Public Statutes, Lord & Darling, Rev. 1906, Sec. 5701 (Treble damages).

Va. Code, Pollard, 1904, ef. Sec. 2775-2780 (treble damages, wanton cutting
by tenant.) *

Wash. Codes & Statutes, Remington & Ballinger, 1910, Sec. 939 ani 940 (Treble
damages).

W. Va.Code, Hogg, 1913, cf. Sec. 4125 (treble damazcs 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; Bechet v. Billingsley, 17 Ala. 391:

Givens v. Kendrick, 15 Ala. 648.

Cal. Daubenspeck v. Grear, 18 Cal. 443.

Til. David v. Correll, 74 Ill. App. 47; Behymer v. Odell, 31 Il. 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 vy. Greenfield, 52 Miss. 434; Heard
v. James, 49 Miss. 236; Perkins v. Hackleman, 26 Miss. 41, 59 Am. Dec.
243.

Mo. Emers n vy. Beavaus, 12 Mo. 511.

N. J. Winter 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 99

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-
eluding 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.’ While in compensatory, or single, dam-
ages the intent of the trespasser is immaterial, ? an intent
to commit the unlawful act is necessary to the maintenance

(Footnote 1 concluded from preceeding page)

Wis. Andrews v. Youmans, 78 Wis. 56; Lee v. Lord, 76 Wis. 582; Cotter v.
Plumer, 72 Wis. 476.

Double damages allowed for timber trespass on state land: State v. Shey-
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. (Aff’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 vy. 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.

Til. Cushman vy. Oliver, 81 Ill. 444; Watkins v. Gale 13 Ill. 152; Whitecraft v.
Vanderveer, 12 TI1l. 235; See also, Satterfield v. Western Union
Tel. Co., 23 Ill. App. 446; Belt v. Reid, 84 Ill. App. 501.

Iowa. Werner v. Flies, 91 Iowa 146, 59 N. W. 18.

Kan. Cf. Wright v. Brown, 5 Kan. 600.

Mich. Skeels vy. 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.

y 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 ltown 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. Clearfield 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,‘ or so negligent and careless as to be in-
excusable.? 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.* 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, ‘ and even this knowledge is
unnecessary under the Pennsylvania statute.' In any
state a belief that is clearly not well founded would consti-
tute no defense, ® 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: Postat 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.
Til. Watkins v. Gale, 13 Ill. 52; Whitecraft v. Vande, ver, 12 Ill. 235; Belt v.
Reid, 84 Ill. App. 501; David v. Correll, 74 Ill. 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.
Rep. 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 C»%. v. Johnson, 91 Miss. 747, 45 So. 465; Therrell v. Ellis,
83 Miss. 494, 35 So. 826; Keirn v. Warfield, 60 Miss. 799; McCleary v. Anthony,
54 Miss. 708; Mhoon y. Greenfield, 52 Miss. 434.
8. 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 Ill. 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 Ill. App. 501; Cox
v. St. Louis etc. R. Co., 111 Mo. App. 394, 85 S. W. 989. ?

_.:s— mh) Te

CONDITIONS NECESSARY FOR REMEDY 101

common law action of trespass,‘ and it is accordingly held
that the statutory action can be brought only where the
circumstances would sustain the common-law action. ?
Possession under color of title with claim of ownership has
been held sufficient to support the statutory action, * 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 ‘ or for a penalty’® 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,® unless the statute spe-
cifically provides that action shall be available to the owner
of timber apart from the land.’ Actual possession under
claim of right and color of title raises a presumption of owner-
ship. §

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; Willey v. Laraway, 64 Vt. 559, 25 Atl. 436; Montgomery
v. Eiwards, 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.
Jil. Edwards v. Hill, 11 Ill. 22; Clay v. Boyer, 10 Ill. 506; Jarrott v. Vaughn, 7
Ill. 132; Whiteside v. Divers, 5 Ill. 336; Wright v. Bennett, 4 Ill. 258;
David v. Correll, 68 Ill. App. 123; Behymer vy. O’Dell, 45 Ill. App. 616,
31 Ill. App. 350; Abney v. Austin, 6 Ill. 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 Ill. App. 616; Abney v. Austin, 6 Ill. App. 49;
Mason v. Park, 4 Ill. 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;? but the
better holding is that the common law rule is not changed
by these statutes. *

Under most of these statutes the multiple damages or
penalty prescribed may be imposed even where the trees
cut have not been taken away,‘ and they embrace im-
mature trees. °

One who orders or “induces another to violate one of
these statutes is liable for the damages or penalties pre-
scribed, ® 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.* Like-
wise a partner is not liable for trespass by a copartner which
is done without the knowledge and consent of the former. ®
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 ™
of the unlawful cutting, but there is conflict of authority as

1. Long v. Cummings, 156 Ale. 577, 47 So. 109; White v. Farris, 124 Ala. 461, 27 So.
259; 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; Arn 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 8S. 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; Gathings 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. (Aff’m in 123 Pa. St. 62, 16 Atl.
420, 10 Am. St. Rep. 512).

7. Van Siclen vy. Jamaica Electric Light Co., 45 N. Y. App. Div. 1, 61 N. Y. Suppl.
210, (Aff’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. Com-
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. '

§89. Defenses to Statutory Damages. If the cutting
is done with the consent of the owner, ? is within one of
the exceptions of the statute, * or is done with authority
of law,‘ the trespasser will not be liable to the multiple
damages or penalties. Possession without title under a
contract of purchase,*® proof that the cutting benefited
the land, ® or evidence that the cutting was necessary to
protect defendant’s adjoining land’ 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. §

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,® and that it was wilful and done
without consent or license; when these facts are estab-
lished the burden of justification of the act falls upon the
defendant.” Thus the denfedant. may be required to
show that the trespass was committed by mistake, “ that
he used reasonable care, “ that he had probable cause for

1. Not Liable—Alabama State Land Co. v. Reed, 99 Ala. 19, 10 So. 238.
Liable—Caris v. Nimmons, 92 Mo. App. 66; Holladay-Klotz Land etc. Co. v. Moss
Tie Co., 79 Mo. App. 543. ,
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., 111 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 (Aff’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.
0. Shelby Iron Co. v. Ridley, 135 Ala. 513, 33 So. 331; Wilson v. Gunning, 80 lowa
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. Warfield, 60 Miss. 799.

be

104 STATUTORY CIVIL LIABILITY FOR TIMBER TRESPASS

believing that the cutting was under one of the exceptions.
of the statute, | that the cutting was accidental or casual, ?
that he acted under a bona fide claim of right, * or that it.

was done with the consent of the plaintiff. +

$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, ° or the market value of the trees cut® 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.’ To establish the value of
trees severed the plaintiff may show either value of the
trees on the land,*® or at the nearest market. Ordi-
narily the additional value given the severed article by
the labor and expense of the trespasser cannot be treb-
led.“ If the plaintiff proves the wrongful cutting but does
not establish a case within the terms of the 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 vy. 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’din 168 N. Y. 650,
61 N. E. 1135).

3. Pitt v. Daniel, 82 Mo. App. 168; Brown vy. Carter, 52 Mo. 46; Davis v. Cotey, 70
Vt. 120, 39 Atl. 628; Cf. 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’din
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 Cal. 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; Holliday 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; Cohn v. Neeves, 40 Wis. 393.

DETERMINING DAMAGES AND INTEREST 105

In most jurisdictions the jury find single damages !
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.? In Kansas it is the province of the jury to
assess the multiple damages, * 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. ‘

§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.*® In some jurisdictions interest will not be
allowed or treble damages. ® but there are holdings to the
contrary’ and the allowance of treble interest on single
damages has been refused. §

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. Garfield, 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 v.Havens, 25 Wend. 419 (1841), shade tree; Newcomb, Super’r
v. Butterfield, 8 Johnson 342 (1811).

2. Yeamans v. Nichols, 81 N. Y. Suppl. 500; Humes vy. 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 8. 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.

Me. Longfellow v. Quimby, 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., 121 Pa. St. 563.
Wis. Weymouth v. Chi. & N. W. R. Co., 17 Wis. 550.
U. 8. Pine River Logging Co. v. U. S., 186 U. S. 279, 22 8. 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,‘ and the title to timber unlawfully cut from the
public lands of a state remains in the state ? 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.* 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.‘
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, * 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. ® 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. 8.366, 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. 8S. 106 U. S. 432, 27 L. Ed. 230; U. S. v.
Cook, 19 Wall (U. 8S.) 591, 22 L. Ed. 210; U. 8. v. Bitter Root Dev. Co., 133
Fed. 274 (Aff’d in 200 U. S. 451); English v. U.S. 116 Fed. 625, 54 C. C. A. 81
(Affm’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. 8. v. Steenerson, 50
Fed. 504, 1 C. C. A. 552; U. S. v. Perkins, 44 Fed. 670; Norris v. U. S. 44 Fed.
735; Bly v. U. S. 3 Fed. Cas. No. 1,581, 4 Dill 464; Spencer y. 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; Raber 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. 8. 106 Fed. 432; U. S. v.
Norris, 41 Fed. 424. Buts-e Stone v. U. S., 167 U. 8.178, 17S. 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. vy. 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. Handford v. U. S., 92 Fed. 881, 35 C. C. A. 75; See Bly v. U. S., 3 Fed. Cas. No. 1,-
581, 4 Dill. 464.

6. Wells v. Nickles, 104 U. 8S. 447; U. S. v. Cook 19 Wall. 591; Norris v. U. 8. 44 Fed.
735; Ballou v. O’Brien, 20 Mich. 304; Stephenson vy. 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, ! 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. ?
The United States or a state may maintain either an action
of trespass * for the damage done in the cutting or removal
of timber, or one in trover ‘ for the value of the timber cut
and removed, irrespective of whether the operations of the
trespasser have been profitable or not;*® 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.® An action will lie against a
partner individually for a trespass by the firm to which
he belonged.’ The recovery of multiple damages °®
and penalties ° has been allowed under statutes prosaninie
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, 16.8. Ct. 831, 40 L. Ed. 1002
(Revers’g 51 Fed. 658, 2 C. C. A. 446); U. S. v. Cook, 19 Wall. (U. 8S.) 591; An-
derson v. U. S. 152 F.d. 87, 81 C. C. A. 311; Grubbs v. U. S. 105 Fed. 314, 44
C. ©. A. 513: U. S. v. Baxter, 46 Fed. 350; U. 8S. v. Taylor, 35 Fed. 484. But
see In re Whitmore, Myr. Prob. (Calif.) 103.

3. Cotton v. U. S8., 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. Butterfield,
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. 8. v. Montana Lbr. Co., 196 U S. 573, 25 8S. Ct. 367, 49 L. Ed. 604; Camfield
v. U.S., 167 U. S. 518, 17 8. Ct. 864, 42 L. Ed. 260; Woodenware Co. v. U. S. 106
U. 8. 482, 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. 8. 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 ete.
R. Co., 40 Fed. 419; U. 8. 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. 8. v. Losekamp, 127 Fed. 959, 62 C. OC. 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. 8. 277, 13 8. 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.

. U.S. v. Gumm, 9 N. M. 611, 58 Pac. 398.

. State v. Shevlin-Carpenter Co., 102 Minn. 470, 113 N. W. 634, 114 N. W. 738.

. 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,
2N. Y. Suppl. 253 (Aff’'d in 117 N. Y. 227, 22 N. E. 1022, 15 Am. St. Rep. 498.)

oon

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 latitude 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. ! 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.? 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, * the burden of proof is shifted upon the
defendant to justify such cutting and asportation,‘ or
to show that the trespass was not wilful. *

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, ° 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

. v. Mock, 149 U. S. 273, 13 S. Ct. 848, 37 L. Ed. 732: U. S. v. Humphries, 149
. 8. 277, 13 S. Ct. 850, 37 L. Ed. 734. Teller v. U. S., 117 Fed. 577, 54 C. C. A.
9.

4
. 8. v. Mullan Fuel Co., 118 Fed. 663; U. 8. v. Ordway, 30 Fed. 30. See U.S. v.

Williams, 6 Mont. 379, 12 Pac. 851.

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. 8S. 44 Fed. 739;

U.S. v. Denver etc. R. Co., 31 Fed. 886; U. 8. 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., 111 Fed. 366, 104 Fed. 988, 44 C. C. A. 292; U.S. 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 (Aff’d in 167 U. 8S. 178, 17 S. Ct. 778, 42 L. Ed. 127); U.S. v. Denver ote. R.
Co., 31 Fed. 886; U. 8S. 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. 8. 178, 17 8S.
Ct. 778, 42 L. Ed. 127). See Cotton v. U. S., 11 How. 229. Morgan v. U. S.,
148 Fed. 189, 78 C. OC. A. 323; U. 8. v. Scott, 39 Fed. 900; Cox v..Cameron Lbr.
Co., 39 Wash. 562, 82 Pac. 116. See U. 8S. v. Murray, 27 Fed. Cas. No. 15843,
5 McLean 207. Bly 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. 8. v.
Perkins, 44 Fed. 670; U. S. 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 8. W. 217.

7. U.S. v. Mullan Fuel Co., 118 Fed. 663; U. 8S. v. Taylor, 35 Fed. 484.

ee —

CIVIL DAMAGES FOR BURNING OF TIMBER 109

entitled to have the question of his good faith submitted
to the jury, ! 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, * or even for multiple or exem-
plary damages, ‘ 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, > unless he be able to establish that the firing was
done lawfully and without intentional or negligent fault
on his part. ° Moreover, many of these statutes make the

i Gentry v. Us S-: 101. Ned. 51; 41 ©. Cy A. 185: See U.S. ve Teller, 106: Ped...447,; 45
CovGh.. Ast LG.
. U.S. v. Mullen Fuel Co., 118 Fed. 668. See Fallen v. Collins, (Tex. Civ. App.)
120 S. W. 546 (1909).
3. Colo. Spencer v. Murphy, 6 Colo. App. 453, 41 Pac. 841.
Iowa Brunell v. Hopkins, 42 lowa 429 (Holding a cultivated field not within
statute as to ! rairie or timber.)
Kan. Interstate Galloway Cattle Co. v. Kline, 51 Kan. 23, 32 Pac. 62S.
Mo. Waters v. Brown, 44 Mo. 302.
a. @al- Gamier'v, Porter; 90 Cal. 105, 37 Pac: 55.
Mich. Boyd v. Rice, 38 Mich. 599.
Mo. Rev. Stat. 1879, Sec. 2129. Russell v. Regan, 34 Mo. App. 242; Kahle v.
Hobein, 30 Mo. App. 472.
. Ark Bizzell v. Booker, 16 Ark. 308.
Colo. Spencer v. Murphy, 6 Colo. App. 453, 41 Pac. 841.
Conn. Grannis v. Cummings, .5 Conn. 165. See also Ayer vy. Starkey, 30 Conn.

to

nr

304.
Fla. Saussy v. South Fla. R. Co., 22 Fla. 327.
Til. Armstrong v. Cooley, 10 Hl. 509; Johnson . Barber, 10 Ill. 425, 50 Am.

Dec. 516.
Ta. Lewis v. Schultz, 98 Ia. 341, 67 N. W. 266; Brunell v. Hopkins, +2 Ia. 429.
Kan. Interstate Galloway Cattle Co. v. Kline, 51 Kan. 23, 32 Pac. 628; Jarratt
v. Apple, 31 Kan. 693, 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 N. C..534; Robertson v. Morgan, 118 N: C. 991, 24
S. EB. 667.

Wis. Rolke v. Chicago & N. W. R. R. Co., 26 Wis. 537; Kellog v. Chicago &
NioWe ike dts Coli, 26 Wis. 2238: (1870);

6 Ark. Bizzell v. Booker, 16 Ark. 308.

Cal. Garnier v. Porter, 90 Cal. 105, 27 Pac. 55. (stubble).

la. Brunnell v. Hopkins, 42 la. 429; Jacobs v. Andrews, + lowa 506; Dekrance
v. Spencer, 2 G. Greene 462.

Me. ‘Sturgis v. Robbins, 62 Me. 289.

Mich. Boyd v. Rice, 38 Mich. 599.

Mo. Russell v. Reagen, 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., 63 Neb. 143, 88 N. 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,! especially if the fire is
set within a certain closed season or without the sanction
of a permit from the proper official. Under statutes re-
quiring notice before the burning a showing by the de-
fendant that the fire was set by necessity * or that the
plaintiff waived the notice is a good defense to an action
for statutory civil damages, ‘ 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.° Whether the statute requires notice or not, it is
no defense to show that the property destroyed was in-
sured ° or that the plaintiff has been indemnified for the
loss by the insurer.’ The statutory action must be
brought either by or in the name of the party who owned
the property injured *-and will not lie if the act complained
of is not clearly comprehended by the statute. * 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, ’° nor are bonfires in a backyard within
the terms of such a statute. " 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. Rome 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. III, 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 vy. 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 Ill. App. 230; Burton v. McClellan, 3 Ill. 434; Thoburn
v. Campbell, 80 Ia. 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.
. Lamb vy. Sloan, 94 N. C. 534; Roberson v. Kirby, 52 N. C. 477.
. Saussy v. South Fla. R. Co., 22 Fla. 327.
Dunleavy v. Stockwell, 45 Ill. App. 230.
. Hayward vy. Cain, 105 Mass. 213.
. Rockingham Mut. F. Ins. Co. v. Bosher, 39 Me. 253, 63 Am. Dec. 618. See also
Armstrong v. Colley, 10 Ill. 509.
. Grannis v. Cummings, 25 Conn. 165 (1856). Def. had license to occupy plaintiff's
land.
10. Acree vy. The State, 122 Ga. 144, 50 S. E. 180; Brunell v. Hopkins, 42 Iowa 429;
Emerson y. Gardiner, 8 Kan. 452 (Act. Fed. 16, 1860). But see Nall v. Taylor,
247 Ill. 580 (1910).
11. McNemar v. Cohn, 115 Ill. App. 31 (1904).

ONAMA

©

THE SETTING OF FIRES BY RAILROADS Lis

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 Operators 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 ? and in a number of states the law
makes the railroad operators absolutely liable for damages
resulting from fires caused by locomotives. * 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.‘ 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. Ayer v. Starkey, 30 Conn. 304 (1861); Nall v. Taylor, 247 Ill. 5 0 (1910); Anna-
polis Etc. R. R. 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. Co. 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. Housatonic R. R. Co., 15 Conn. 124, 38 Am. Dec. 70 (1842).
On pages 70 to 79 of Vol. 38, American Decisions, will be found a full dis-
cussion of this subject.

Le Ry. v. Funk, 85 Ill. 460; Rwy. Co. v. Muthersbaugh, 71 Ill. 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. See Mo. Etc. Ry. v. Mackey, 127 U.S. 205.

Me. Pratt v. Ry., 42 Me. 579; cf. Chapman v. Ry. 37 Me. 92.

Mich. Fisk v. Wabash Ry., 114 Mich. 248; See Osborn v. Ry. Co., 111 Mich 15.

Minn. Hayes v. M. & S. P. Ry. Co., 45 Minn. 17; Mahoney v. St Paul Etc. Ry.
Co:,-35.Minn.:361, 29 N. W. 6; Karsen vy. Mil. Etc. Ry. Co., 29 Minn.
12 NCW 122.

Mo. Campbell v. Ry. Co., 121 Mo. 340; Coale v. Hannibal Ete. R.Co., 60 Mo.
227 (1875).

NeDs smith:y. N. Po Ry: Cos 3) N..D;,.17,538 N; W. 173:

Ohio; Martz v. Ry: Co:., 12:0. C. Ct. 144; Trust Co. -v. Ry: 89 Feb 637, 12:
Oo Re D2 T84-

S.-C. See Lipfield -v. Ry. Co:, 41 S.C. 185.

U.S. Niskern v. Ry. Co., 22 Fed. 811.

3. Ingersoll v. Stockbridge & P. R. R. Co., 8 Allen (Mass.) 488 (1864); Matthews v,

Ry. Co., 121 Mo. 298; Rowell v. Railroad, 57 N. H. 132 (1876).
See Greenfield v. R. R. Co., 49 N. W. 95 (Under Iowa Code 1873, Sec.
1289.)
4. Iowa Babcock v. Ry. Co., 62 Ia. 593; Libby v. Rwy. 52 Ia. 92: Slooson v. Rwy.,
o1 Ja. 294; Small v.C. R: 1, & P. ROR. Co, 50Ta. 338 Dee. 1879: sec.
1286, code 2873.)

Kan. A. T. & S. F. Ry. v, Dennis, 38 Kan. 424 (1888),

NAJ: Hoff v. Ry., 16 Vroom 201.

Ohio Railway v. Wahlers, 1 O, C, C (N. 8.) 139, 14 0.C, D. 310.

112 STATUTORY CIVIL LIABILITY FOR TIMBER TRESPASS

not of the jury.! Negligence on the part of the railroad
company will ordinarily render it liable irrespective of
whether the one injured has been negligent. ”

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. *
The words ‘other property’’ in such a statute have been
held to comprehend growing timber, * and a statute which
made ‘“‘every railroad corporation’ liable has been held
applicable to an unincorporated owner.*’ <A _ railway
company is not liable for fires started by a stranger within
its right of way.* 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 ee yines to have the best possible appli-
ances. °

1. Smith v. N. P. Ry. Co., 3 N. D. 17, 53 N. W. 173 (1892). Cf. Carter v. Ry. 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. Mauer
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. 8. 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 (Affd. 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., 111 Mich. 15; Lipfield v. Ry. Co. 41 8S. C. 285. But see Balsley v.
R. R. (1i.) 8 N. E. 859 (Holding lessor liable for action of lessee.

CHAPTER IX

INJURY TO GROWING TREES AS A CRIMINAL
OFFENSE

_ §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. !

1. Ala. Criminal Code, 1907, Sec. 7828 (knowingly.) See also Secs. 7833, 7834, 7837.

Ariz. Revised Statutes, 1913, Secs. 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, Secs. 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).

Ill. Revised Statutes, Hurd, 1912. Chap. 38, Sec. 269. (knowingly and wilfully.

Ind. Annotated Statutes, Burns, 1914, Sec. 2308 (without license, private, state
or U. 8.); 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, Secs. 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 emer eM)

Rey. Stat. 1909, Sec. 4600.

Mont. Revised Code, 1907, Secs. 8610, 8750 (wilfully). In city, 8765.

Neb. Compiled Statutes, Brown & Wheeler, 1911, Sec. 7745 and 7746, Revised
Statutes, 1913; Secs. 8679 to 8683 (wilfully and maliciously).

Nev. Compiled Laws, 1861-1900, Cutting; Secs. 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 Jand 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.! The application of erimi-

(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, Cumming & Gilbert, 1909, Sec. 1425 of
Penal Law, par. 1, 2 and 6, p. 3994 (wilfully).

N. C. Revised Laws, Pell, 1908, Secs. 3511, 3687, 3741 (knowingly and wilfully).

N. D. Compiled Laws, 1913, Sec. 10064 (maliciously); 10068 (fruit trees).

Ohio Annotated General Code, Page & Adams, 1912, Secs. 12455-12457 (wilful
trespass) ; 12490 (malicious injury) ; 12498 (public land.) 7

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, Chap. 345, Sec. 23, p. 1263 (without consent of owner).

S. C. Code of 1912, Sec. 223 of Criminal Code(wilfully, unlawfully and maliciously.)

8. 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.

Tex. Penal Code, White, Rev. Ed. 1911, Art. 825, 826, 829 (knowingly).

Utah Compiled Laws, 1910, Secs. 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) Secs. 49 and 51. See pages 124 and 125 of this work. _

1. 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.

Ga. 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.1 The word “wilfully” as used in an indictment
has been held equivalent to “knowingly,” ? 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 Laws N. C. 1908, Pell, Sec. 3741, misdemeanor ae 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. 297,59S E.823. See Lbr. Co. v. Carter, 5 Ga. App.
344, 63 S. E. 270.
Til. Mettler v. People, 135 Ill. 410, 25 N. E. 748.
Ind. State v. Cole, 90 Ind. 112; Lossen 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. ©. 1240, 24 8. 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 8S. 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. Golonbieski 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. be be ik 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. ?

§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, * or through acei-
dent, 4 or a misunderstanding ® will not render one liable
to the penalties of such acts. However, the claim of title
must rest upon a reasonable basis® 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.* Failure to observe
the directions of the statute has been held to establish the
criminal intent, ° 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. W. 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 Ill. 410, 25 N. E.
748; Wagstaff 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 iiability under the statutes not dependent on intention); State v.
West, 10 Tex. 554.

6. State v. Wells,j142 N. C. 590, 55 S. E. 210; State v. Durham, 121 N. C. 546, 28
S. E. 22; State v. Calloway, 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 8. 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 8S. E.
351; Boykin v. State, 40 Fla. 484, 24 So. 141; Lindley v. State, (Tex. Cr. App.
1898), 44 S. W. 165.

. United States v. Murphy, 32 Fed. 376.

. United States v. Murphy, 32 Fed. 376. U.S. v. Reder, 69 Fed. 965.

. 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 Atl. 542.

oon

CRIMINAL INTENT ESSENTIAL TO CONVICTION 117

self constitutes evidence of criminal intent.! A license
to cut trees has been held no defense to a wanton cutting
of ornamental trees.*? It has been held under a Texas
statute that the plaintiff must show that the trees cut did
not belong to the defendant.* 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, ‘ nor is he liable if the employee cut
the trees contrary to the employer’s orders. *

§97. Criminal Timber Trespass Statutes are Con-
strued Strictly. Under statutes making the unauthorized
cutting of timber on the land of another a specific offense,
actual severance is necessary, ® and the injury must be
substantial.” 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; ® 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. °
Some statutes make either the cutting or the asportation of
the trees an offense, 1° 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; ™
and if the statute simply prohibits a cutting the offense will
be complete without an asportation. ’ 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. Darton, 6 McLean 46; U. S. v. Thompson, 6
McLean 56; U. 8. 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 timber species.* 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.‘ The special acts regarding timber tres-
pass on state lands have been rigorously enforced, * and the
common law has also been held to protect public lands. ®

§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.’ 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.

. Wilson v. State, 17 Tex. App. 393.

. 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 (Affm. 53 N. Y. App. Div. 626, 65 N. Y. Suppl. 1142.); Com. v. LaBar
32 Pa. Super. Ct. 228; State v. Dorman, 9 S. D. 528, 70 N. W. 848.

. Com. v. Eckert, 2 Browne (Pa.) 249. (Dec. 1812).

. Ala. Criminal Code, 1907, Sec. 6304, 6906, General; 6907, 6908, inicio 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, Secs. 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, Crim. Code, Secs. 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, Secs. 1218 to 1222.

Del. Statutes of Del., Revised 1893, p. 946; Revised Stat. 1915, Secs. 722-25 and
3446-50, p. 1594 (Carelessly or out of season).

Fla. Compiled Laws, 1914, Sec. 3277, 3426.

Ga. Criminal Code of 1914, Secs. 227, 229 and 230.

Ida. Penal Code, 1908, Sec. 6921, (Misdemeanor). Includes Ry. (1901, Sec.
4760). :

Til. Annotated Statutes, 1913, par. 3500, p. 1972.

Ind. Annotated Statutes, 1914, Vol. 1, Sec. 2260-2263; maliciously and wantonly.

Iowa Criminal Code of 1897, Secs. 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, bagrssass ans 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)

em OO

Sm

—_—*

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. 1 However, the mere
setting out of the fire is in itself evidence of an unlawful in-
tent ? which is sufficient to sustain a conviction unless
justification can be shown by the defendant.’ Acts of this
character were punishable at commonlaw.‘* The statutory
offense of burning the woods or the property of another is
ordinarily a misdemeanor’ 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.

Ney. 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.

J. Compiled Statutes of 1910, p. 2335, Sec. 49.

M. Compiled Laws, 1897, Sec. 3221, 3222. Annot. St. 1915, Sec. 1516-7.

Y. Consolidated Laws, Birdseye, Cum. & Gil. 1909, Sec. 1421, p. 3992.

. C. Revised Laws, Pell, 1908, Sec. 3346; setting fire: Sec. 3347, camp fire.

N.Dak.Compiled Laws, 1913, Sec. 2797, Secs. 9774 and 9775.
Ohio Annotated Gen’l Code, Page & Adams, 1910, Secs. 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, Stewart, 1903, p. 1745-1747, Sec. 41-48.
R. I. General Statutes, 1909, p. 1259, Sec. 6, Chap. 345. (Cf. p. 1258, Sec. 3,
wood).
8. C. Criminal Code, 1912, Sec. 189 (Turpentine farm); 215; woods in general;
216 carrying a torch.
S.Dak. Rey. 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 J1l. 425, 50 Am. Dec.
416; Nall v. Taylor, 247 Ill. 580 (whether fire proximate cause, for jury).
Galvin v. Gualala Mill Co., 98 Calif. 268, 33 Pac. 93.
See Pipe v. State, 3 Tex. App. 56. Cf. State v. Williams, 68S. 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. 599;
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. OC. 798, 13 8S. 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 Te:. 64; Phillips v. State, 19 Tex.
158, Earheart v. Com., 9 Leigh (Va.) 671.

2

120 INJURY TO TREES AS A CRIME

special circumstances the offense may be a felony, ‘! 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.? 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 required by the statute is
given. * Under these statutes one can avoid conviction by —
showing that the firing was necessary for his own protec-
tion, ‘ or that the escape of it was accidental and unavoid-
able.° However, a defendant cannot escape conviction
on the defense that the adjoining landowner waived the re-
quired notice. ® 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 ®
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. °

$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 Ill. 565 (burning hay); State v. Harvey, 131 Mo. 339,328. 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 Nev. 365, 30 Pac. 1000 (cordwood). Cf. Searles v.
State, 6 Ohio C. C. 331, 3 O. C. C. D. 478 (Building); Laws of N. Y. 1817, p. 118,
1827, p. 244; Rev. St. 1846, .Vol. 2, p. 755; Rev. St. Wis., 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 N. C. 687.

4. Tyson v. Rasberry, 8 N. C. 60; Tiller v. Wilson, 1 Lea (Tenn.) 392.

5. Finley v. Langston, 12 Mo. 120. :

6. Lamb v. Sloan, 94 N. C. 534; Robertson v. Kirby, 52 N. C. 477; Wright v. Yar-
borough, 4 N. C. 687.

7. Averitt v. Murrell, 49 N. C. 322.

8. Achenback v. Johnston, 84 N. C. 264.

9. Hall v. Cranford, 50 N. 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-
alty1 While a state undoubtedly possesses extensive

1. Ala. Act Nov. 30, 1907, S. L. No. 90 (appliances).

Ark. Of. Act Apr. 2, 1907, S. L. No. 141 (absolute liability of railroads.) p. 336.

Cal. 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.

Til. Cf. Annot. St., 1913, par. 8812 (clear right of way) same Rev. St. 1913,
Hurd, 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, 8. 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, 8. L.,
ch. 100 (Distance increased).

N. J. Act. Apr. 12, 1909, S. L. ch. 74, p. 102; (fire lines required); Cf. act Mar.

30, 1915, S. L. ch. 109 (requiring patrol).

M. Act Apr. 1, 1884, S. L. ch. 34 (plow and burn).

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, 8. 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).

a. Act June 3, 1915, S. L. No. 353, art. 8 (no definite requirement).

I. Act. Apr. 23, 1909, S. L. Ch, 395, sec 14.

D. Laws 1893, Ch. 90; Civil Code 1903, Sec. 516 (making guard outside
right of way).

Va. Act 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 ndjoining owners for the cutting of timber or the
digging of the soil adjacent to the right of way was declared
unconstitutional in 1913. 4

§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.? 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 publie 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, S. L. Ch. 114(appliances); Suppl. 1913 to Code of 1910,
sec. 5277-14 to 5277-18. Amadts. 8. L. 1911, ch. 125, sec. 14-18.

W. 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, 8. 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 Ill. 633; Checkley v. Ill. Cent. R. R., 257 Tll., 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
eut for exportation.! 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;? nor is such payment conclusive
evidence of guilt under the penal stattute. *

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. 8S. 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. Cf
Stone v. U. S. 64 Fed. 667, 12 C. C. A. 451 (Aff'd 167 U. 8. 178, 17S. ct. 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. 1

Because of a conflict in court decisions as to the applie- ~

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, ? it was found difficult to
protect the timber on public lands from injuries of this char-
acter. An act of June 4, 1906 (34 Stat. 208) cured the de-
fect by declaring the chipping or boxing of a tree upon publie
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, (85 Stat. 1088) entitled ‘“‘An
act to codify, revise and amend the penal laws of the United
States,’ the provisions of previous acts were 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); Leitherbury v. U. 8S. 32 Fed. 780 (1887).
Held applicable. U.S. v. Taylor 35 Fed. 484 (1888). See4L D.1. See Davis
v. State, 80 Miss. 376, 31 So. 742 (Under Miss. act making boxing an offense).

. “a
,

-——

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 +, 1888
(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 publi
lands; and the word ‘‘wantonly”’ was used in the act of 1831,
the act of March 3, 1859 (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 (85 Stat. 1098) in
defining the lability 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 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; ! 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, 69 Fed. 965; U. 8. v. Murphy, 32 Fed. 376.

But see U. 8S. v. Darton 25 Fed. Cas. No. 14, 919, 6 McLean 46 (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. ”
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.* 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. °

In an indictment charging the defendant with a. viclston
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” ° or “unlawfully,” 7 to describe par-
ticularly each kind of timber cut, * to show the use made of
the timber, ° or to allege that the cutting was not justified
under any law of the United States 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. U. S. v. Hacker, 73 Fed. 292 (1896) under sec. 4, Act of June 3, 1878; U.8S.v. Gar-
retson, 42 Fed. 22 (1890). Under se:. 5388, U. 8S. R. S.(Boxing trees.) U.S. v.
Leatherbury, 32 Fed. 780 (1887). Under sec. 2461, U. 8. R. 8. (Boxing trees).

2. U.S., v. Teller 113 Fed. 273, 51 C. O. A. 230.

3. U.S., v. Shiver 159 U. S. 491, 16 S. Ct. 54, 40 L. Ed. 231.

U. 8S. v. Briggs, 9 Howard (U. 8.) 351, 13 L. Ed. 170.
Teller v. U. S., 113 Fed. 273, 51 C. C. A. 230; U. S. v. Stone, 49 Fed. 848.

. S. v. Stores, 14 Fed. 824, 4 Woods 641; U. S. v. Smith, 11 Fed. 487, 8 Sawy. 100.

. 8S. v. Schuler, 27 Fed. Cas. No. 16234, 6 McLean 28.

. 8S. v. Redy, 27 Fed. Cas. No. 16133, 5 McLean 358.

y v. U. S., 3 Fed. Cas. N . 1581, 4 Dill 464.

. 8. v. Soto, 7 Ariz. 230, 64 Pac. 419.

19 Opin. Atty. Gen'l, 381.

. U.S. v. Schuler, 27 Fed. Cas. No. 16234, 6 McLean 28.

. 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.

U. 8. v. Schuler 27 Fed. Cas. No. 16234, 6 McLean 28.

v. Thompson 28 Fed. Cas. No. 16,490, 6 McLean 56.

v. Redy 27 Fed. Cas. No. 16, 133, 5 McLean 358.

. v. Stone 49 Fed. 848.

. v. Stone 49 F d. 848.

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FIRING OF FEDERAL LANDS FORBIDDEN LZ

township, range, section or quarter-section, ! and specify
the kind of timber ? 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 * provided the proof correspond; proof
that one species was cut when the charge was limited to
another species will not support a conviction. * 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. ° Ignorance of the law will not constitute a
defense, ° 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,‘ and only a nominal
fine should be imposed where full reparation is made and
there is no proof of a fraudulent intention. * It has been
held that if the defendant shows an entry of land under a law
giving him aright to cut, the burden is upon the government
to prove the cutting to be unlawful; ° 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. !° 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. !

§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 fine of not over

. Thompson 28 Fed. Cas. No. 16490, 6 McLean 56.
,. Schuler 27 Fed. Cas. No. 16234, 6 McLean 28.
. Redy 27 Fed. Cas. No. 1613?, 5 McLean 35s.
. Redy 27 Fed. Cas. No. 16133, 5 McLean 35 .
. Darton 25 Fed. Cas. No. 14919, 6 McLean 46.
ibid: USS: v. Niemeyer 94 Fed..147: U.’S..-v: Teller 113 Fed. 273;,51-C..C. -A. 230,
U.S. v. Murphy 32 Fed. 376.

. 8. v. Darton 25 Fed. Cas. No. 14919, 6 McLean 46.
U. 8. v. Murray 27 Fed. Cas. No. 15843, 5 McLean 207.

S. v. Rou ledge 8 N. Mex. 385, 45 Pac. 883.
U. 8. v. Denver Etc. R. Co. 191 U. S. 84, 48 L. Ed. 106. cf. U. S. v. Bitter Root
Etc. Co. 200 U. S., 451, 50 L. Ed. 550.

. Stubbs v. U. S. 111 Fed. 366, 49 C. C. A. 392, 104 Fed. 988, 44 C. C. A. 292.

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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 cver $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 ora
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 other 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 intentionally 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, morally 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 ' and standing tim-

1. Ark. Klopple v. Wagonstock Co. 148S.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.
Harring 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 ‘ 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 vy. Groom, 167 N. C. 271, 83 S. E. 471.

- Finger v. Goode, 85 8S. E. 137.

a

Cal.
Fla.

Banger v. Lbr. Co., 86 8. E. 516.
Taylor v. Munger, 86 S. E. 626.

. Hersey v. Fisher, 90 N. Y. 647.

Lacy v. Green, 84 Pa. St. 51 .

Lbr. Co. v. Hodges, 96 S. ©. 140, 79 S. E. 1096. Timber Co. v. Prettyman,
97 S. C. 247, 81 S. E. 484. Keenan v. Matthews, 98 8. C. 226, 82 S. E.
431. ‘

Glover v. Smith, 1 Dessaus. 433. -

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.

Healey v. Tract Co., 78 Wash. 628, 139 Pac. 609.

Pardee v. Crane, 74 W. Va. 359, 82 S. E. 340; Metalliurgical Co. v. Mont-
gomery, 74 S. E. 994 (Lease of land with lumbering rights).

See Jennison v. Leonard, 21 Wall, 302, 22 L. Ed. 539; Gillen v. Powe, 219

Fed. 553; Rexford v. Woodland Co., 208 Fed. 295.

Hill vy. Buckley, 17 Ves. 394, 401.

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.

Fleischer v. McGehee, 111 Ark. 626, 163S. 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. :

Ciapusci v. Clark, 12 Cal. App. 44, 106 Pac. 436.

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.

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.

Page v. Bradford-Kennedy Co., 19 Ida. 685, 115 Pac. 694.

Walker v. Johnstone, 116 Ill. App. 145.

Baker v. Kenney, 145 Ia. 638, 124 N. W. 901.

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.

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.

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 vy. 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 8. 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 8S. 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 8S. 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 8. 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 8S. E. 1049; Rush v. Hilton, 83 8. 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 8. 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 8. 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. e
W. Va.Coal Etc. Co. v. Harrison, 71 W. Va. 217, 76 S. E. 346, 47 L. R. A. N. 8.
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

—— ee

MISREPRESENTATIONS 133

out any purpose to deceive.! 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; ? 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. * 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. * Only when the representation
as to the amount of timber on the land is clear and explicit
will it be construed as a warranty, * 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. Warranty of title or quality will not be implied.’

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 8. 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,
82S. 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 vy. 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.
. Brotherton v. Reynolds, 164 Pa. St. 134, 30 Atl. 234.
. 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 8. 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 see Lbr. v. Middleby, 194 Fed. 817, 114 C. C. A. 521.
7. Ala. Johnson v. Curry, 134 Ga. 583, 68 S. E. 298.
(Feotnote 7 continued on next page)

> OO

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 } 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.? 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 * or through a sale of the land with a
reservation of the trees. 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 y. Seymour, 36 N. J. L. 138, 13 Am. Rep. 432.
N.C. Zimmerman y. 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 Ill. 28, 89 Am. Dec. 284; Adams v. Beadle, 47 Iowa 439, 29
Am. Rep. 487; Liford’s Case, 11 Coke 48; Billingsby 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. Stratton 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. Strout v. Harper, 72 Me. 270; Goodwin v. FaNberds 47 Me. 595; Howard v.
Lincoln, 13 Me. 122.
Mass. Hill v. Cutting, 107 Mass. 596; Reed v. Merrifield, 10 Metc. 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. O. 125.
(Footnote 4 continued on next page)

CONSTRUCTIVE SEVERANCE OF TREES bSD

ranty and a provision for removal within a certain time,
which conveys an interest in land, ! 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, ? or within a specified time. *

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 ‘ or still retain the character of realty with which
they were invested while legally attached to the land.* 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, ° 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.’ 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 cluded 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.

S.C. Knotts v. Hydrick, 12 Rich. L. 314.

Eng. 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. Tozer, 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.

8. 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.

. 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, Harreil 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.
806; 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. 488; 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 onee.! 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), * 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.*
In a Maine ease 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 'um-
ber during the ensuing winter.® 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. Hufsmith 45 Pa. 121.

3. Re Ainslie, 30 Ch. D. 485 (overruling 28 Ch. 89, 92, D. (Dec. 1884). 4

4. Ewell’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 Rey. 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.!

§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,? 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.* An estate in inheritance in the timber upon land
separate from the land itself may be created by deed,‘ and
the owner of the estate in timber may maintain an action in
trespass for the breaking of the close.®> Trees may be
leased separately from the land upon which they stand. ®
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 the sale of growing
timber. ’

§107. Interests in Land Incident to Timber Owner-
ship. The valid sale of standing trees.apart from the land,
or an effecvive 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 vy. State, 100 Ala. 55 (1893); Bonham vy.
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. 157; Ex parte Wilke, 34
Tex. 155 (1871); Farris v. State, 69 S. W. 140, (Tex. Crim. App. 1902).

. Clark v. Way, 11 Rich. (S. C.) 621.

. Reed v. Merrifield, 10 Mete. (Mass.) 155.

Clap v. Draper, 4 Mass. 266; See Goodyear v. Vosburgh, 57 Barb. (N. Y.) 2438.
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. Stillwell, 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. ) 748. E. 635; Childers v.
Coleman, 122 Tenn. 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.

oP oN

138 CONTRACTS REGARDING GROWING TIMBER

trees.! If the conveyance is made by deed this right will
be in the nature of an irrevocable easement, ? but if the sale
be one by parol the privilege of entry is in most jurisdictions
merely a revocable license.* The extent of the Keense 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 *‘ upon the land or the erossing
of cleared lands * 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. 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 8S. 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 8S. 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. Galloway-Pearse Co. v. Sabin, 130 Tenn. 575, 728. W. 292.

. Armstrong v. Lawson, 73 Ind. 498.
. Waters v. Greenleaf-Johnson Lumber Co., 115 N. C. 648, 20 8. E. 718.
. Stephens v. Gordon, 19 Ont. App. 176.

If trees excepted under lease, landlord may enter to take; Brooks v. Rogers, 101
Ala. 111; Pomfret v. Ricroft, 1 Saund. 322b; But not if only underwood ex-
cepted, Leigh v. Heald, 1 B & Ad. 622.

6. Ill. Faith v. Yocum, 51 Ill. 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)

ee)

OWNERSHIP OF TIMBER AS AN INTEREST IN LAND’ 139

a defense against suit for trespass or conversion,! and in
some states the revocation is actionable if done in violation
of an agreement. ”

$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 * enacted in England in 1676, was to the
effect that no 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 local 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. Asa matter of fact, this
js the general rule in the United States: ‘and in those states

(Footnote 6 concluded from preceding page)

Mass. Driscoll v. Marshall, 15 Gray 62; Whitmarsh v. Walker, 1 Mete. 313.

Mich. Spalding v. Archibald, 52 Mich. 365, 17 N. W. 940, 50 Am. Rep. 253; Wil-
liams v. Flood, 63 Mich. 487, 30 N. W. 93; Greeley v. Stilson, 27 Mich.
153:

Miss. Walton v. Lowrey, 74 Miss. 484, 21 So. 243.

N. H. Hodsdon v. Kennett, 73 N. H. 225, 60 Atl. 686; Houston v. Laffee, 46 N. H.
505; Woodbury v. Parshley, 7 N. H. 237, 26 Am. Dec. 739.

N. Y. Bennett v. Scutt, 18 Barb. 347.

Pa Callen v. Hilty, 14 Pa. St. 286.

8.Dak. Polk vy. Carney, 17 8S. D. 436, 97 N. 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. Garvin, 105 Wis. 6.5, 81 N. W. 1038, 48 L. R. A. 839; Keystone
Lumber Co. v. Kolman, 94 Wis. 465, 69 N. W. 165, 59 Am. St. Rep. 905,
ot ib: BR: A821,

Ene? Hewitt v. Isham,'7 Exch. 77, 21, L. J. Exch. 35.

Can. Breckenridge v. Woolner, 8 N. Brunsw. 303; New Brunswick, ete. Land.
Co. v. Kirk, 6 N. Brunsw. 443; Kerr v. Connell, 2 N. Brunsw. 133.

1. Whitmarsh v. Walker, 1 Mete. (Mass.) 313; Spalding v. Archibald, 52 Mich. 365;

Woodbury v. Parshley, 7 N. H. 237.

2. Johnson y. Wilkinson, 139 Mass. 3, 29 N. E. 62, 52 Am. Rep. 698; Whitmarsh v.
Walker, 1 Metc. (Mass.) 313. Cf. Davis v. Lbr. Co., 151 Ala. 580, 44 So. 629
(written license to cut not revocable.); Martin v. Johnson, 105 Me. 156, 73 Atl.
963 (Permittee not entitled to timber cut by trespasser.); Sinnot v. Scoble, 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 Il;-Ch: 3, Sec:4:

4. Ala. Gibbs v. Wright, (Ala. App.) 57 So. 258; Heflin v. Bingham, 56 Ala. 566,

28 Am. Rep. 776; Magnetic Ore Co. v. Marbury Lbr. Co., 104 Ala. 465,
53: Ami, St. Rep. 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. Rep. 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.! It is also the

Ga.
Ind.

Iowa

Mich.

N. J.

SINS, ey

Ohio

Eng.

(Footnote 4 concluded from preceding page)

Coody v. Gress Lbr. Co., 82 Ga. 793.

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.

Garner v. Mahoney, 115 Iowa 356, 88 N. W. 828; Sanders v. Clark, 22
Iowa 275.

Powers v. Clarkson, 17 Kan. 218.

Kemper v. Lumber Co., 134 La. 816, 64 So. 760.

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.

. Kileen vy. 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.

. 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. ? E

Alt v. Grosclose, 61 Mo. App. 409; Cooley v. Kansas City etc. R. Co., 149
Mo. 487.

. Reid v. McQuesten, 61 N. H. 421; Howe v. Batchelder, 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.

Slocum v. Seymour, 36 N. J. Law 138, 13 Am. Rep. 432; See Hendrickson

v. Ivins, Saxton 562.

Thompson v. Poor, 57 Hun. 285; Boyce v. Washburn, 4 Hun. 792; Wood v.
Shults, 4 Hun. 309, 6 Thomps. & 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; Van Elstyne v. Wimple,
5 Cow. 162.

. 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.
Hirth v. Graham, 50 Ohio St. 57, 33 N. E. 90, 40 Am. St. Rep. 641, 19
J, 3A; 721. .

. Galloway & Pearse Co. v. Sabin, 130 Tenn. 575, 172 S. w. 292; Knox v.

Haralson, 2 Tenn. Ch. 232. ,

Gulf etc. R. Co. v. Foster (Tex. Civ. App. 1898), 44 S. W. 198.

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.

Smith v. Ramsey, 116 Va. 530, 82 S. E. 189; Stuart v. Pennis, 91 Va. 688.

Bruley v. Garvin, 105 Wis. 625; Lillie v. Dunbar, 62 Wis. 198; Daniels v.
Bailey, 43 Wis..566; Strasson v. Montgomery, 32 Wis. 52.

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, McIntosh v. McLeod, 18
Nova Scotia 128, 6 Can. L. T. 449.

Scorell v. Boxwell, 1 Y. & Jerv. 396; Teal v. Auty, 2B. & 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 vy. Roe, 50 Barb. (N. Y.) 302; McIntyre 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.

pre

.

ee ee

————————— ee

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.! Some courts have given effect to a parol
reservation of standing trees. °

$109 TheEnglish Doctrine as to the Statute of Frauds.
Inone of the leading English cases * 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 be 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, * 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. Heflin v. Bingham, 56 Ala, 566, 28 Am. Rep. 776.
Kkan. Cockrill v. Downey, 4 Kan. 426 (18638).
Me. Howard v. Lincoln, 13 Me. 122.
Mass. Clap v. Draper, 4+ Mass. 266; White v. Foster, 102 Mass. 375: Spurr v. An-
drew, 6 Allen, 420.
Mich. Dodder v. Snyder, 110 Mich. 69, 67 N. W. 1101; Wait v. Baldwin, 60 Mich,
622:

Mor Mellvaine v. Harris, 20 Mo. 457, 64 Am. Dec. 196.

N. H. Aleutt v. Lakin, 33 N. H. 507, 66 Am. Dee. 739,
N. Y. Wintermute v. Light, 46 Barb. 27s.

No CG: Flynt-v., Conrad, 61 N: C. 190, 93 Am: Déc. 588:
Pa. MeClintock’s Appeal, 71 Pa. St. 365.

Mt, Sterling v. Baldwin, 42 Vt. 306.

Eng. Stanley v. White, 14 East. 338; Barrington’s Case, S Coke 136b.
2. melireck bumber ete, Co. Vv. Honalker, 76 S. W,.342,°25 Ky. ib. Rep. 717: Wluse-¥.
Sparks, 10 Ind. App. 444: Heavilon v. Heavilon, 29 Ind. 509; Baker vy. Jordan,
Bo Omens, 4357 Backenstoss vy. Stahler’s Admi'rs, 33 Pa. St. 251, 75 Am. Dec,
592: See Sherman-v;, Willett, 42 N. Y.. 146.
But see Kimbrel v. Thomas, 139 Ga. 146, 76S. E. 1024; Cullen v. Armstrong, 209
Fed. 704 (Transfer of right to cut timber.)
Ss oimlth Ve murmian, oO Barns «°C. 561.7 Ib..3. If. Be Os. 8.296, Ms SR, 455). 17
EAC Tr 253.
4. Earl of Falmouth v. Thomas, 1 C. & M. 105.
sviarshallix. Green: GP. ADin 40, 45 LJ C. Ps 153, 33:12). Rep. Nos. 104, 24
Wkly. Rep. 175, 1 Wim. Saund. 395; Scovell v. Boxall, 1 Y. & Jerv. 396; Teal v.
AUty, 2. b,c B10 See Bilis voGrubb: 3: Us CG. @. BB. (O78) 61t.

on

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;! 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.? The
license which the purchaser has to take the trees may be re-
voked at any time,* but the title to all trees actually cut
down before the revocation of the license will be vested in
the vendee‘ 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.®

The Maine rule® is substantially the same as that of
Massachusetts, and the Connecticut’ 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 Metc. (Mass.) 580, 88 Am. Dec. 381; Nettleton v.
Sikes, 8 Metc. (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 Metc. 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; Erskine v.

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. !

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 ? 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.* This doctrine is similar
to that expressed in the English case of Marshall v. Green‘
and has been approved in other states. ®

§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.

1C. P. Div. 35, supra.

. 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.

oe

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 econ-
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.! In Mass-
achusetts the intention of the parties to a parol contract
for the 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 cireumstances 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.? However, it
should be noted that although in the leading Kentucky case*
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 Metc. (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; Cardwell 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, 106 S. W. 846, 32 Ky. L. Rep. 671; Bell County
Land etc. Co. v. Moss, 17 8S. 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 Metc. (Ky.) 372.

SALE OF SEVERED PRODUCTS ENFORCEABLE 145.

purchaser of the land with notice of the parol sale of the,
timber. !

$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;? 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.* 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 coral
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. Simonds, 15 Gray 441, 77 Am.
Dec. 373; Nettleton v. Sikes, 8 Metc. 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 vy. 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 8. D. 247, 95 N. W. 933.
Vt. Yale v. Seeley, 15 Vt. 221.
W.Va. Fluharty v. Mills, 49 W. Va. 446, 38 S. 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. GC. 114, 56 S. E. 694. (possession under unre-
corded or invalid deed not notice to later purchaser.)

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;!
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. ”

§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, * but in such cases the cutting must be begun within a

1. Mich. Yockey v. Norn, 101 Mich. 193.
N. Y. Killmore v. Howlett, 48 N. Y. 569 (1872).
S.C. Jones v. McMichael, 12 Rich. 176.
Tenn. Dorris v. King et al. (Ch. App. Tenn. 1889), 54 8. 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 8. 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, 32S. 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. Hannay. Buford (Mo. App.) 177 8S. 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, 70S. 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. Litchfield 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 8S. E. 849.
Va. See Brown vy. Lbr. Co. 75 S. E. 84.
Wash. Heybrook v. Beard, 75 Wash. 646, 135 Pac. 626; Dew v. I earson, 73 Wash.
602, 132 Pac. 412.
U. 8s. Cf. U.S. v. Lbr. Co., 172 Fed. 714.

TIME FOR REMOVAL OF TIMBER SOLD 147

reasonable time.! And if the contract does not expressly
indicate that there is to be no limit, ? and yet fails to desig-
nate a limited time for removal, the courts will allow only a
reasonable time for the removal. * 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, 189 N. C. 167, 51
S. 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 8S. 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. 2
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. Youmans, 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
8. W. 806; Fletcher v. Lyon, 93 Ark. 5, 123 S. W. 801; Liston 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 Ia. 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; Oates v. Yeargin, 115 S. W. 794; Evans v.
Dobbs, 112 S. W. 667; Timber Co v. Coal Co., 107 8S. 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 8. 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 yv. Flanders, 73 N. H. 345, 61 Atl. 675; Hoit v. Stratton Mills, 54
N. H. 109, 20 Am. Rep. 119.
N. ©. See Hornthal v. Howcott, 154 N. OC. 228, 70 8S. 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.
8. C. Gray v. Lbr. Co., 86 8S. E. 640; Minshaw v. Lbr. Corp., 98 S. OC. 8, 81 8. E.
1027; Timber Co. v. Prettyman, 97 S. C. 247, 81 8. E. 484; Gresham v.
Lbr. Corp., 96 8. 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 8. W. 1176, Development Co. v. Lbr. Co. (Civ. App.) 139 8.
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 8S. 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, ! 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. 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.* 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 8S. W. 806; Fletcher v. Lyon, 93 Ark. 5, 123 8S. W. 801;
Stave Co. v. Sims, 84 Ark. 603; 106 S. W. 959; Liston v. Lbr. Co., 91
S. W. 27.

Fla. Land Co. v. Parker, 64 Fla. 371, 59 So. 959; Land Co. vy. 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 8. E. 672 (15 years not unreason-
able as a matter of law); Warren v. Ash, 129 Ga. 329, 58 S. E. 558; Mc-
Rae v. Stillwell, 111 Ga. 65, 36 S. E. 604. :

Ky. Evans vy. Dobbs 112 S. W. 667 (hiatus in operations). See Mineral Etc.
Co. v. Lbr. Co. 148 Ky. 82, 146 8. 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 1 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 8. E. 697.
Boults v. Mitchell, 15 Pa. St. 364; Andrews v. Wade, 6 Atl. 48.
C. Cf. Minshaw v. Lbr. Corp.; 96 8. C. 8, 81 8. E. 1027; Lbr. Co. v. Alderman,
80 S. C. 106, 61S. E. 217. See also McClary v. Lbr. Corp. 90 8. C. 153,
72S. E. 145.

Tenn. Carson v. Three States Lbr. Co., 108 Tenn. 681, 69 8S. 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 8S. 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 8S. 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‘ no intention to use the land! 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.? 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
-eould not enter again and cut timber eleven years subse-
quent to the completion of the first operation.* 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: + 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. *

§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.* 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, 81S. E. 1027. See David-
son v. Moore, 37 8S. W. 260, 18 Ky. L. Rep. 563; Brown vy. Lbr. Co. (Va.) 75 8S.
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, 64S. 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 Ia. 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 8S. W. 444. (Equit-
able interest of purchaser in timber where no time limit is stated.)
Cypress Co. v. Thibodaux, 120 La. 834, 45 So. 742. :
Webber v. Proctor, 89 Me. 404, 36 Atl. 631; Howard v. Lincoln, 13 Me.
122; Pease v. Gibson, 6 Me. 81.

. Iron Etc. Co. v. Nester, 147 Mich. 599, 111 N. W. 177. See Scott v. Sul-

livan, 159 Mich. 297, 124 N. W. 29.

. King v. Merriman, 38 Minn. 47, 35 N. W. 570.

. Hollensteiner v. Lbr. Co., 37 Mont. 278, 96 Pac. 420.

. See Nutting v. Stratton, 77 N. H.-79, 87 Atl. 251.

. Boisaubin v. Reed, 1 Abb. Dec. 161 (N. Y.), 2 Keyes 323; Kellam vy. Mc-

Kenstry, 6 Hun. (N. Y.) 381, Aff. in 69 N. Y. 264.

. 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.

Hill v. Lbr. Co. 90 8. C. 176, 72 S. E. 1085.

. Bond v. Ungerecht, 129 Tenn. 631, 167 S. W. 1116.

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 8S. W. 278.

Stevens v. Sayers, 82 Vt. 324, 73 Atl. 817; Strong v. Eddy, 40 Vt. 547.

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.

. Mill Co. v. Vaughn, 57 Wash. 163, 106 Pac. 622.
. Kunst v. Mabie, 72 W. Va. 202, 77 S. E. 987; Brown v. Gray, 68 W. Va.

555, 70 S. E. 276.

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.

Lbr. Co. v. Shepard, 180 Ala. 148, 60 So. 825; Gibbs v. Wright (Ala. App.)
57 So. 258.

Cf. Mayes v. Watkins, 165 S. W. 633.

Dickey v. Lbr. Co., 127 Ga. 460, 56 S. E. 481; Allison vy. Wall, 121 Ga. 822,
49 S. E. 831.

See Lbr. Co. v. Asher, 131 Ky. 796, 115 8S. W. 790; Chestnut v. Green, 86
S. W. 1122, 27 Ky. L. Rep. 838.

Noyes v. Goding, 104 Me. 453, 72 Atl. 181 (timber reserved in land sale.)

. Haskell v. Ayers, 32 Mich. 93.
. McIntyre v. Barnard, 1 Sandf. ch. 52.
. Davis v. Frazier, 150 N. C. 447, 64 S. E. 200; Powers v. Lbr. Co., 154 N. C.

405, 70 8S. E. 629.
Anderson v. Lbr. Co., 116 Pac. 1056.

. Mengal Box Co. v. Moore, 114 Tenn., 596, 87 S. W. 415.

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.

Smith v. Ramsay, 116 Va. 530, 82 S. E. 189.

. Belcher v. Kleeb, 59 Wash. 166, 109 Pac. 798. See Lehtonen vy. Power

Co., 58 Wash. 86, 107 Pac. 878 (deed reserving right to remove.)

. Null v. Elliott, 52 W. Va. 229, 43 S. E. 173.

TIMBER STANDING WHEN CONTRACT EXPIRES 151

tract,! 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. * 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-

ZZAEz
an?

Contra West v. Maddox (Ala.) 69 So. 101.

Branch v. Johnson (Ga. App.) 71 S. E. 1123; Lbr. Co. v. Gates, 70 S. EB.
672; McRae v. Stillwell, 111 Ga. 65; Baxter v. Mattox, 106 Ga. 344.

Bach v. Little, 140 Ky. 396, 131 S. W. 172; Bell County Land Co. v.\Moss,
97 S. W. 354, 30 Ky. L. Rep. 6.

Cf. Brown v. Bishop, 105 Me. 272, 74 Atl. 724.

Reed v. Merrifield, 10 Metc. 155; Kemble y. Dresser, 1 Metc. 271, 35 Am.
Dec. 364.

. 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.

Hanna v. Buford (App.) 177 S. W. 662.

. See Fox v. Fitzpatrick, 190 N. Y. 259; 82 N. E. 1103.
. Wiley v. Lbr. Co. 156 N. ©. 210, 72. S. E. 305; Williams v. Lbr. Co., 154

N. C. 306, 70 S. E. 631, Hornthal v. Hawcott, 164 .N. C.
228, 708. 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. Goldsbora Lbr. Co., 139 N. C.
160, 51 S. E. 852, 1389 N. C. 167, 51 S. E. 855; Bunch Lbr. Co. v. Lumber
Co., 134 N. CO. 116, 46 S. E. 24.

Bennett v. Vinton Lbr. Co., 28 Pa. Super. Ct. 495; Saltonstall v. Little, 90
Pa. St. 422.

Minshew v. Lbr. Corp., 98 8S. C. 8, 81 S. E. 1027; Hill v. Lbr. Co. 90 S. C.
176, 72S. E. 1085.

Furniture Co. v. Rhea, 114 Va. 271, 76S. E. 330.

. Lehtonen v. Water Etc. Co., 50 Wash. 359, 97 Pac. 292.

. Lbr. Co. v. Sheets, 83 S. E. 81 (to grantee of owner.)

Strasson v. Montgomery, 32 Wis. 52; Larson v. Cook, 85 Wis. 564.

Johnston vy. Shortbreed, 12 Ont. 633; Steinhoff v. McRae, 13 Ont. 546.

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.

Lbr. Co. v. Eldridge, 89 Ark. 361, 116 8S. W. 1173; Lbr. Co. v. Worley (Ark.)
130 8S. W. 1066.

Halstead v. Jessup, 49 N. E. 821.

Mineral Etc. Co. v. Lbr. Co. 148 Ky. 82, 146 S. W. 438; Timber Co. v.
Coal Co., 107 8. 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 8S. W. 394. Both cases in which timber was reserved.
Davis .: Emery, 61 Me. 140 (apparently overruling Pease v. Gibson, 6
Me. 81).

Land Co. v. Watson, 129 Mo. App. 554, 107 S. W. 1045.

Pierce v. Finerty, 76 Atl. 194, 79 Atl. 23; Hoit v. Stratton Mills, 54 N. H.
109, 20 Am. Rep. 119.

Wyckoff v. Bodine, 47 Atl. 23; Irons v. Webb, 41 N. J. L. 203, 32 Am.
Rep. 193.

Contra. Oil Co. v. Hamilton (Civ. App.) 153 S. W. 1194.

Lbr. Co. vy. Lyman, 94 Atl. 837; DeGoosh v. Baldwin, 82 Atl. 182.

‘Cf. Young v. Young, 109 Va. 222, 63 S. E. 748.

. Keystone Co. v. Brooks, 65 W. Va. 512, 64 S. E. 614.

152 CONTRACTS REGARDING GROWING TIMBER

_piration of the time limited for removal, ! 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. *

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. *

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, ° and under such circumstances the vendee
will be given an additional time within which to remove the
timber. ® 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, 147 Cal. 1, 81 Pac. 121,
109 Am. St. Rep. 107.

Til. Walker v. Johnson, 116 Ill. App. 145.

Ky. Shepherd v. Bank, 156 Ky. 495, 161 8S. 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 8S. 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. 8. v. Lbr. Co., 172 Fed. 714.

Can. MeNéeill 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 8S. W. 1121. ;

6.. Ky: Jackson v. Harding, 87 8S. 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 time 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. 4

§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,? 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.* 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 8S. 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.
Mad. Mfg. Co. v. Morris, 84 Atl. 238.
Mass. Douglas v. Shumway, 13 Gray 498.
Mich. Hodges v. Buell, 134 Mich. 162, 95 N. W. 1078; Macomber v. Detroit
Ete. 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 Wis.
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 Metc. 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; McIntyre 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, 167.8. 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. 4
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. ”

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. * The same is true of products manufactured from the
trees such as wood, hewed timber, posts and rails, not built
into a fence, * lumber,® slabs and other refuse piled for fire-
wood. °

§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

g A 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.

8. 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. Glock, 57 Wis. 118, 15 N. W. 12, 46 Am. Rep. 32.

, 2. Porch v. Fries, 18 4T. 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 Ill. 480 (1855); McCarthy v. McCarthy,
20 Can. L. J. Occ. N. 211 (Co. Ct. Ont. 1900).

.5. Howell v. Barnard, 32 Ill. App. 120 (1889); Hinkle v. Hinkle, 69 Ind. 134 (1879);
See Banfil v. Twyman, 71 Ill. App. 253 (1896).

«6. Jenkins v. McCurdy, 48 Wis. 628 (1879).

"afl

RESERVATION OF TITLE UNTIL PAYMENT 155

made at one time or by installments.! 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.* Ina
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 ‘ 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.°®° Even though a _ pro-
vision in a contract requiring full payment before any tim-
ber is cult 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, ° 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.’ Unless there is an express agree-
ment to that effect the vendor has no lien on timber cut for
the purchase price.* 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 vy. Dunbar, 62 Wis.
198, 22 N. W. 467; See Emersony. 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.

March v. Bellew, 45 Wis. 36.

. Artman v. Shaw, 37 Mich. 448.

. In re Ortman, 80 Mich. 67, 45 N. W. 63; Cf. Lillibridge v. Sartwell, 8 Pa. St. 523.

. Haven v. Beidler Mfg. Co., 40 Mich. 286; See Burgett v. Bissell, 14 Barb. (N.

Y.) 638.

Burgett v. Bissell, 14 Barb. (N. Y.) 638.

. 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. ©. 452, 77 8S. 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 vy. Cook, 28 Grant ch. (U. C.) 179.

orp 0

nN

156 CONTRACTS REGARDING GROWING TIMBER

tract provides that full payment shall be made before the
logs are removed from the land,! 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. ”

§120. Description of the Timber Sold. Unless a con-
trary intention is directly stated or may be clearly in-
ferred * from the terms of the contract, provisions as to the
size ‘ or suitability ° 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 vy. 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 y.
Armstrong 209 Fed. 704. (Negotiation of a note taken for price does not
terminate lien. Can. Ford v. Hodgson, 3 Ont. L. Rep. 526.

8. Hardison v. Dennis Simmons Lbr. Co., 136 N. C. 173, 48 8. 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.) 74S. E. 792; Lbr. Co. v. Gates, 70 8. E. 672; Rob-
erts v.Gress, 134 Ga. 271, 67 S. E. 802.

Ky. Cf. Leonard v. Holland, 79 8. 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; Whitfield v. Lbr. Co.,
152 N. C. 211, 67 S. E. 512; Isler v. Lbr. Co. 146 N. C. 556, 60 S. E.
503; Warren vy. 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. Pe

Pa: Shiffer 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 vy. 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 8. E. 32.

Vt. Lbr. Co. v. Lyman, 94 Atl. 837; Fed. Lbr. Co. v. Middleby, 194 Fed. 817
114 C. C. A. 521.

=e

DESCRIPTION OF TIMBER SOLD 157

eluded, 1 but a contract may provide otherwise. ? 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, * 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.* 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.® 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 ° or of the land’ need be only

1. Hardison v. Lbr. Co., 136 N. C. 173, 48 8S. E. 588. Cf. Lbr. Co. v. Frith, (Ky.)
118 S. W. 307; Olmstead v. Niles, 7 N. H. 522. But see Whitfield 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 8S. 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.

8.C. Lbr. Co. v. Alderman, 80 8. C. 106, 61 8S. E. 217.

Tex. Kelly v. Robb, 58 Tex. 377

U. 8. 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; Whitfield 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, 56 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, 35S. 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. Asher, 141 Ky. 468, 132 S. W. 1035. (Description of timber con-
trols erroneous description of land.) Bradford v. Huffman, 88 8S. W.
1057, 28 Ky. L. Rep. 18, Hayes v. McLin 115, Ky. 39, 72 8S. 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. Of. 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 8. 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. ! 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, ? or which belonged to only one of the vendors and
was not contemplated in the sale. 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 * 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.*’ The num-

ber of trees sold may prevail over the kinds named in the
contract. ® 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. Ruffin, 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 8. W. 1035. (Description of timber controls over erroneous 8 description
of land) Lbr. Co. v. Thompson, 108 Va. 612, 62 S. E. 358.

Jackson v. Hardin, 87 8S. W. 1119, 27 Ky. L. Rep. 1110.

Bradford v. Huffman, 88 S. W. 1057, 28 Ky. L. Rep. 18.

United States v. Pine River Logging and Improvement Co., 89 Fed. Rep. 907,

Paalzow v. North Carolina Estate Co., 104 N. C. 437, 10 S. E. 527.

Moss v. Meshew, 8 Busb. (Ky.) 187; Byasse v. Reese, 4 Metc. (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.

NS op &

ee

a adi: ee!

DESCRIPTION OF TIMBER SOLD 159

made.! 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.” 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; * and that a pur-
chaser of lands with notice of the existing license of another
to eut timber from the land; cannot rescind the contract
without placing the parties in statu quo. *

+
1. Shiffer v. Broadhead et al, 126 Pa. 260 (1889); Whitfield v. Rowland Lbr. Co.
152 N. ©. 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.* 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, ? 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. *

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.* 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. °

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.* In

1. Lambden 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.

. McAllister v Walker, 69 Mo. App. 496.

. Jordan v. Jones, (Ga.) 35 S. E. 151; Gore v. Benedict (Tenn.) 61 S. W. 1054.

. 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; noah Lumber
Co. v. Stitt, 102 Wis. 459, 78 N. W. 562.

169

em W bo

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. ? 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; * 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. *

A logging agreement by which two parties agree to share
the expenses of the work embraces interest ® board of
sealers ° 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
mill 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. McInnis, 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 8S. 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. Ruggles, 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 8. W. 1054 and Jordan v. Jones, (Ga.) 35S. E. 151.

162 PREPARATION AND MANUFACTURE

tion.' 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. ”

§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. * However, if a logger
is released from his contract upon condition of his 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. * A logger may recover reasonable com-
pensation for extra labor performed at the request of the
other party ° and if logs which do not comply with the re-
quirements of the contract are accepted, he may recover a
reasonable amount for them. °

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 vy. Benedict, -(Colo.) 62 Pac. 222; Fay and Eagan Co. v. Ouachita Ex-
celsior etc. Co. (La.) 26 So. 386;

Citizen Nat'l 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 N. W. 965;

Cf. Griffiths v. Blackwater Boom & Lbr. Co. (W. Va.) 33 S. E. 125.

3. Keystone Lbr. Ete. Mfg. Co. v. Dole, 43-Mich. 370; Hartley v. Decker, 89 Pa. St;
470; Bean v. Bunker, 68 Vt. 72, 33 Atl. 1068; See Bishop v. White, 68 Me. 104.
Hopkins vy. 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 Ney.
323 (charcoal burned) ; Cf. Owen v. Lbr. Co. 125, Minn. 15, 145 N. W. 402.

5. McCann v. Doherty, 98 Wis. 335, 73 N. W. 782 (Bark marking.)

6. Bresnahan vy. Ross, 103 Mich, 483, 61 N. 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; MeMillian v. Mfg.
Co., 125 La. 854, 51 So. 1013; Lbr. Co. v. Logging Co., 103 Minn. 471, 115
N. W. 406; Murphy v. Cooper, 41 Mont. 72, 108 Pac. 576; Fox v. Fitzpatrick,
190 N. Y. 259, 82 N. E. 1103.

DIVISIBLE CONTRACTS 163

of contract, in the absence of any evidence as to bad faith
on the part of either the logger or the owner’s agent... 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;” 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. ?
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. * —

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.®° And
in such an action, evidence as to the profits realized by the
contractor on another contract carried out after the pre-
vention of the execution of the one in suit has been rejected
as incompetent in mitigation of damages. °

_ 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. &75. But see Blood v. Herring
(Ky.), 61 S. W. 273.

3. 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. OC. 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 vy. 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.' However, performance of the
work for which the advances were made can be enforced, ?
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, * and for additional ex-
penses directly due to the failure of the first party to furnish
the supplies. *

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.®> 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. ® 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 (Tenn.) 61 S. W. 1054; See also Jordan v. Jones, (Ga,) 35 8S. 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. ?
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. *

$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.‘ In an action on a contract for the peeling of bark
Sis. “Baal & 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 8S. W. 1081, and Veneer Co. v. Anderson, 105 8S. 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.! 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. *

It has been held that a contract for the cutting of timber
survives the death of either party, * and thatin 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.‘ In accordance with the general rule, evi-
‘dence which is immaterial to the question at issue will not
be admitted. ° Questions as to the abandonment of a con-
tract by a logger,® substantial compliance with the terms ©
of a contract requiring a cutting of all logs, 7 the suitable-
ness of the season for logging operations, * the necessity of
certain equipment, ° and other similar questions will be sub-
mitted to the jury.

. Maltais v. Foss (N. H.) 44 Atl. 599.

. Rowell v. Lewis (Me.) 49 Atl. 423.

. Billing’s Appeal, 106 Pa. St. 558. But compare Dickinson vy. 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. vy. Sullivan Logging Co.,120 Ala. 558, 24 So. 949. Cf. Bement

y. Claybrook, 5 Ind. App. 193, 31 N. 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.

. Greenwood y. Davis, 106 Mich. 230, 64 N. W. 26.

. Pallman vy. Smith, 135 Pa. St. 188, 19 Atl. 891.

. Smith v. Scott, 31 Wis. 437.

Carstens vy. Earles, 26 Wash. 676, 67 Pac. 404.

wd =

CONN

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, ? as well as the failure to saw those
delivered, * 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. * 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. ° 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.’ 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, °
and account for all logs delivered or show that any loss was
due to no fault on his part. ° In interpreting a contract

1. Fletcher v. Prestwood, 150 Ala. 135, 43 So. 231; Lbr. Co. v. Clement, (Ark.) 135
8. 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; Penfield 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. Hines
Lbr. Co., 137 Fed. 300; Mill Co. v. Lbr. Co., 38 New Brunsw. 292.

2. Bassett v. Child, 11 Ill. 569; Dunn v. Johnson, 33 Ind. 54, 5 Am. Rep. 177;
Whidden vy. 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. 348. 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, 50S. E. 439.

. Dunn v. Johnson, 33 Ind. 54, 5 Am. Rep. 177.

Harrison & Garrett v. Wilson Lbr. Co., (Ga. 1903) 45 S. E. 730.

Grice v. Noble, 66 Mich. 700.

Youngs v. Johnson, 82 Wis. 102, 51 N. W. 1127.

. Rhodes v. Holladay-Klotz Land Etc. Co., 105 Mo. App. 270, 79 8S. W. 1145.

. Gleason v. Beer, 59 Vt. 581, 10 Atl. 86, 59 Am. Rep. 757.

OHNAA

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.* Storage charges for lumber left
in the mill yard for a considerable time after the sawing
have been denied, + and the admission of parol evidence
inconsistent with the written terms of a contract for sawing
has been refused.® A mill yard has been legally defined
as a place devoted to the storage of logs to be sawn and of
manufactured lumber. °

$125. Liens for Expenditures and Services in the
Manufacture of Timber Products. The common law
tule that any bailee for hire was entitled to a lien 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.’ This lien for the full charge

1. Harris v. Rathbun, 2 Abb. App. Dec. (N. Y.) 326, 2 Keyes 312. (There was a
dissenting opinion.)

. Button v. Russell, 55 Mich. 478; Shores Lbr. Co. v. Stitt, 102 Wis. 456.

. Mowatt v. Wilkinson (Wis.) 85 N. W. 661.

Hunter v. Felton, 61 Vt. 359.

Denton v. Whitney, 31 Ohio St. 89.

People v. Kingman, 24 N. Y. 559, 562.

. Holderman v. Manier, 104 Ind. 118; Palmer v. Tucker, 45 Me. 316; Hughes vy.
Tanner, 96 Mich. 113, 55 N. W. 661; Phillips v. Freyer, 80 Mich. 254, 45 N. 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 N. 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. Buerman, 6 Pa. Dist. 357.

NO oop gN

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. !
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.” Raftsmen
who receive logs or lumber for the purpose of floating the
same to market have been held to have a common law lien
on the goods received for the value of the services per-
formed.’ The same principal should be applied when an
individual or a company receives loose logs under a con-
tract for floating them to market. *

A common law lien 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, ° nor does the one furnishing money ad-
vances or supplies for the cutting of timber have a lien on
the logs in the absence of a statute or a specific agreement
therefor.® 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,’ however

1. Holderman vy. 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 ete. 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 8. W. 831; Oakes v. Moore, 24
Me. 214, 41 Am. Dec. 379; Haughton v. Busch, 191 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.
. Andrew v. Jenkins, 39 Wis. 476; cf. Bogard v. Tyler (Ky.) 55 S. W. 709.

. 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.

No

170 PREPARATION AND MANUFACTURE

such a lien will be lost if the one entitled thereto voluntarily
parts with possession.! 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; ? but a lien cannot
arise in favor of one who was a stranger to a contract with
the owner of the logs or timber, * or who cut the timber
without the consent of the owner.‘ If a contract con-
templates a lien, it does not become effective until the ser-
vice to be performed has substantially been completed, ®
— especially if the agreement requires the delivery of the logs
or lumber prior to the specified time of payment. ®

§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.

. Jacobs v. Knapp, 50 N. H. 71.

. Hill v. Burgess, 37 S. Car. 604; Dresser v. Lemma, 122 Wis. 387, 100 N. W. ‘844,

. Haughton v. Busch, 101 Mich. 267, 59 N. W. 621; Hodgdon v. Waldron, 9 N. H.
66. Bui 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. 4818-21 (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, Kerr
Sec. 3065.

Fta. 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. 15u4.

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)

en)

STATUTORY LIENS 171

sive,! while others apply only to one or two of the classes of
service named above. These statutes are sustained by the
courts.” 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.* Under such
statutes legal possession at the time of the performance of
the service is unnecessary, * but attachment of the timber >
must be made before the lien can be enforced.® As the
statutes are remedial they have been construed liberally in
favor of those for whose benefit they were enacted.® AI-
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. Cas. 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. Wakefield, 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 8S. 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. 266. 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, (lll.) 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, ' it has been held that an amend-
ment as to the time of manner of enforcement of a lien does
apply to liens which arose before the enactment of such
provisions. 7 Some state statutes for this class of liens
specifically authorize assignment, * but it has been held
that a lien is assignable even where the statute does not so
provide, * especially if the lien has been perfected by the re-
quired filing of notice. *

§127. Classes of Service Covered by Statutes.
Whether a lien 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; ° and in othersalien ona sawmill or its pro-
duets is given one who furnishes timber, legs or provisions
for the operation of the mill.’ Statutes giving a lien on a
sawmill for timber and supplies furnished have been held
not to comprehend the furnishing of money, machinery and
labor, * 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 N. W. 229.

. Palmer v. Tucker, 45 Me. 316; 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. W. 647; Dirimple v. McDonald

and Dells Lbr. Co., 101 Wis. 509, 78 N. W. 182. Cf. Bernhart v. Rice, 98 Wis.
578, 74 N. W. 370; Kline v. Comstock, 67 Wis. 473, 30 N. W. 920; Tewks-
bury v. Bronson, 48 Wis. 581, 4 N. 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 N. W. 749.

5. Mulholland v. Ault (Wash. 1892), 32 Pac. 294; Casey v. Ault, 4 Wash. 167, 29
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. 178; Patten v. Northwestern Lbr.
Co., 73 Wis. 233, 41 N. W. 82; Stacy v. Bryant, 73 Wis. 14, 40 N. W. 632;
Koliock 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 vy. 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.

to

——EEEeEeEeEeEeEeEeEEyEEE—

CLASSES OF LIEN SERVICE Lr gs

page bought by the mill owner.! However, in certain
states a lien upon a mill or manufactured product for the
purchase price of stumpage is specifically given by statute. ?

A statute giving a lien for the “cutting, skidding and haul-
ing”’ of logs has been held to cover chopping, swamping and
loading, * 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
eutting of cordwood were held to merge so as to give a
single remedy to one cutting both timber and cordwood. °
One furnishing shingle bands was afforded the protection of a
statute giving a lien for services in connection with the
manufacture of shingles. ® On the other hand a_ statute
providing a lien for services in the manufacture of lumber
was held not to cover the hauling of the manufactured
timber away from a mill; 7 and a statute which declares the
lien available while the lumber is at the mill or in the pos-
session of the manufacturer is not available after the
lumber is removed from the mill. *

A lien for services in connection with the driving of logs
covers all essential parts of the work, ° including the time
devoted to the obtaining of the necessary equipment and
earing for it during the drive and at the close, but one who
assisted another in a joint drive of their respective logs has

1. Ray v. Schmidt, 7 Ga. App. 380, 66S. E. 1035, Stanley v. Livingston, 9 Ga. App.
523; 718. E. 878; Loud v. Pritchett, 104 Ga. 648, 30.8. E. 878. Giles v. Gano,
102°Ga. 93,27 S. B.-730.

2. Ala. Civil Code 1907, sec. 4814-4817 (Act. Dec. 17, 1894, Laws of 1894, p. 250.)
Interpretation. Thornton v. Dwight, 137 Ala. 211, 34 So. 382; Austill v.
Hieronymus, 117 Ala. 620, 23 So. 620. Cf. May v. Williams (IXy.) 60S. W. 525
Wash. Codes & St. 1910, Sec. 1164, (Doyle v. McLeod, + Wash. 782, Interpre-
tation)

3. Grand Rapids Chair Co. v. Runnels, 77 Mich. 104, 43 N. W. 1006.

4. Bondeur v. Le Bourne, 79 Me. 21, 7 Atl. 814. Cf. Sands. v. Sands, 7-4 Me. 239;
Hadlock v. Shumway, 11 Wash. 690.

And see Fisher v. Cone Lbr. Co. 49 Ore. 277, 89 Pac. 737 (Holding lien not de-
stroyed by manufacture into lumber.)

5. Ouelette v. Pluff, (Me.) 44 Atl. 616. Cf. Anderson v. R. R. Co. 25 Ida, 433, 138
Pac. 123 (Ties included in “timber."’)

6. Bass v. Williams, 73 Mich. 208, 41 N. W. 229.

7. Villenuve v. Sines, 92 Mich. 556, 52 N. W. 1007. Cf. Ryan v. Guilfoil, 13 Wash.
373; Winsor v. Johnson, 5 Wash. 429, 32 Pac. 215. But see Menery v. Backus,
107 Mich. 329 (Employed on timber operation and farm).

8. Judge v. Bay Mill Co., 18 Wash. 269; Smartwood v. Red Star Shingle Co., 13
Wash. 349; Campbell v. Sterling Mfg. Co. 11 Wash. 204.

9. East Hoquiam Boom Etc. Co. v. Neeson, 20 Wast. 142,{54 Pac. 1001; Yellow
River Imp. Co. v. Arnold, 46 Wis. 21, 49 N. W. 971.

10. Minton v. Underwood Lbr. Co., 79 Wis. 646, 48 N. W. 857.

174 PREPARATION AND MANUFACTURE

been denied a lien.’ The same principles would apply to
the cutting or hauling of logs, and a lien has even been
given for the loss of a laborer’s time through the fault of the
owner of the logs.? But except as to services already performed
a lien does not exist where an owner of timber defaults on
his contract to employ another.* In several states a lien
is specifically given by statute to cooks in logging and driv-
ing camps, ‘ but irrespective of these provisions, cooks, ®
blacksmiths, ® and other assistants’ who perform ser-
vices essentially incidental to the operations covered by a
statute should be afforded the protection of a lien. A lien
has been allowed to one who performed services in the con-
struction of a road upon which logs were to be transported *
and in the blasting of rocks which would prevent or impede
the passage of logs in a river, * but the performance of ser-
vice in connection with a road not actually used as an inci-
dent to the logging operation ” or upon a railroad which was
to be used in a general way for the transportation of other
timber as well as that then being cut “ has been held to give
no lien. The same principles have been applied as to ser-
vices upon a mill plant, by affording a lien to one who per-
formed services in repair work at irregular intervals as an
incident to the operation of the mill,” but denying one
for services in the construction, improvement or permanent
repair of a sawmill. A statute giving a lien for personal
services has been held not to cover the services of a team
used by the one claiming the lien, “ but if the statute is not

1. Lord v. Woodward, 42 Me. 497.

2. McCrillis v. Wilson, 34 Me. 286, 56 Am. Dec. 655.. See Cross v. Dore, 20 Wash.
121.

3. Kennedy v. South Shore Lbr. Co. 102 Wis. 284, 78 N. W. 567.

4. Oregon Laws, 1910, Lord, sec. 7461; Wash. Codes & St. 1910, Rem. & Bal., sec ~

1162; Wis. St. 1913, sec. 3341.

5. Breault v. Archambault, 64 Minn. 420, 67 N. W. 348, 58 Am. St. Rep. 545;
Winslow v. Urquhart, 39 Wis. 260; Young v. French, 35 Wis. 111. But see
Bradford v. Underwood Lbr. Co., 80 Wis. 50, 48 N. W. 1105. (Contract for
board.)

6. Breault v. Archambault, 64 Minn. 420.

7. Carpenter v. McDonald and the McCord Lbr. Co., 107 Wis. 611,617, 83 N. W. 764.

8. Proulx v. Stetson Etc. Mill Co., 6 Wash. 478, 33 Pac. 1067. =

9. Duggan v. Washougal Land Etc. Co., 10 Wash. 84, 38 Pac. 856.

10. Duggan v. Washougal Land Etc. Co., 10 Wash. 84, 38 Pac. 856.

11. Carpenter v. McDonald and the McCord Lbr. Co., 107 Wis. 611, 83 N. W. 764.

12. Engi v. Hardell, 100 Wis. 407, 100 N. W. 1046.

13. Kendall v. Hynes Lbr. Co., 96 Wis. 659, 71 N. W. 1039; Glover v. Hynes Lbr. Co.,
94 Wis. 457.

14. Coburn v. Kerswell, 35 Me. 126; McCrillis v. Wilson, 34 Me. 286, 56 Am. Dec
655. But see Hale v. Brown, 59 N. H. 551, 47 Am. Rep. 224.

PERSONS ENTITLED TO LIENS 175

thus restricted it will cover the services of a team.! The
lien will exist even though the team is driven by a servant
of the one making the contract,? or the team, which is
driven by the one claiming the lien, is in his possession under
a contract of hiring or of purchase, * but under a statute
giving a lien for services performed in the cutting and haul-
ing of timber there will be no lien to the owner for the ser-
vices of a team which is driven by another under a contract
of hiring, even though such contract expressly contemplates
the use of the team in the logging operation. 4

§128. Persons Entitled to Statutory Liens. Wheth-
er a person performing a particular service in connection
with the production of lumber or other timber products is
entitled to the protection of a lien upon the product or upon -
the plant or equipment will depend largely upon the terms
of the statute in the jurisdiction where the case arises. In
many states the view is taken that a lien for services com-
prehends only physical labor of men or animals working for
specified wages, either by time or by the piece, under the
direction of an employer.’ Under such a_ construction
the lien has been denied to one acting as a foreman or
sealer, ® but a contrary view has been taken in other
states, ’ and in several states a statute specifically affords
a lien for scaling, * or for the services of servants. ® Many
statutes have been held not to afford a lien to_a contractor

1. Hogan v. Cushing, 49 Wis. 169, 5 N. W. 490; See Klondike Lbr. Co. v. Williams,
71 Ark. 334, 75 S. W. 854; Martin v. Wakefield, 42 Minn. 176, 43 N. W. 966
6 L. R. A. 362.

2. Breault v. Archambault, 64 Minn. 420, 67 N. W. 348; 58 Am. St. Rep. 545: Cf.
Martin v. Wakefield, 42 Minn. 176.

8. Kelley v. Kelley, 77 Me. 135. :

4. McMullin v. McMullin, 92 Me. 336, 42 Atl. 500, 69 Am. St. Rep. 510; Richard-
son v. Hoxie, 90 Me. 227, 38 Atl. 142; Mabie v. Sines, 92 Mich. 545, 52 N. W.
1007; Edwards v. H. B. Waite Lbr. Co., 108 Wis. 164, 84 N. W. 150, 81 Am,
St. Rep. 884; Lohman v. Peterson, 87 Wis. 227, 53 N. W. 407; Rheaume v.
Batiscan River Lbr. Co., 23 Quebec Super. Ct. 166.

. Littlefield v. Morrill, 97 Me. 505, 54 Atl. 1109, 94 Am. S. Rep. 513.

. Meands v. Park, 95 Me. 527, 50 Atl. 706.

Kline vy. Comstock, 67 Wis. 473, 30 N. W. 920.

. Lindsay Etc. Co. v. Mullen, 176 U. S. 126, 20 S. Ct. 325, 44 L. Ed. 400.

. Breault v. Archambault, 64 Minn. 420, 67 N. W. 348, 58 Am, St. Rep. 545:
Hogan v. Cushing, 49 Wis. 169, 5 N. W. 490. But see Hale vy. Brown, 59 N. H.
551, 47 Am. Rep. 224.

OCHNAH

176 - PREPARATION AND MANUFACTURE

for the services performed by those in his employ, ! nor
even to one who performs manual work himself under an
agreement by which he is to receive payment by the piece
where his work and that of his servants and team is not
performed under the direction and supervision of the owner
of the timber. However, if the work is performed under
the immediate direction of the owner, the lien will extend
to employees of the one contracting with the owner, * and
under some statutes even to subcontractors. * A laborer’s

lien has been denied to one who furnished supplies to the ~

laborers even though the credit was given under an agree-
ment with the employer that payment for the supplies
should be deducted from the wages of the men.*® A lien
will not be enforced in favor of a trespasser. ® A lien right
is primarily founded upon a contract and thus ean be en-
forced only against one with whom the lien claimant has
directly or indirectly entered into an agreement for the per-
formance of services, 7 and one log owner cannot be charged

1. Ark. Klondike Lbr. Co. v. Williams, 71 Ark. 334, 75 S. W. 854.

Me. Rogers v. Dexter Etc. R. Co., 85 Me. 372, 27 Atl. 257, 21 L. R. A. 528.

Pa. Burge v. Comerer, 5 Pa. Co. Ct. 5 (Holding one cutting and hauling timber
to a mill not a manufacturer). But see Hoffa v. Person, 1 Pa. Super. Ct.
367.

Wash. Campbell v. Sterling Mfg. Co., 11 Wash 204, 39 Pac. 451; but see Blumaer
v. Clock, 24 Wash. 596, 64 Pac. 844, 85 Am. St. Rep. 966.

Wis. Compare Bradford v. Underwood Lbr. Co., 80 Wis. 50, 48 N. W. 1105.

Vt. Quimby v. Hazen, 54 Vt. 132. é

Can. Dallaire v. Gauthier, 24 Can. Sup. Ct. 495; Baxter v. Kennedy, 35 N.

Brunsw. 179.
‘Contra

Mich. Phillips v. Freyer, 80 Mich. 254, 45 N. W. 81 (overruling Kieldsen v. Wilson ~

77 Mich. 45, 43 N. W. 1054); Shaw v. Bradley, 59 Mich. 199, and Hall
v. Tittabawassee Boom Co., 51 Mich. 377, 16 N. W. 770. -
Minn. Carver v. Bagley, 79 Minn. 114, 81 N. W. 757 (Cf. King v. Kelly, 25 Minn.
522, where contractor expressly excluded by statute).
2. Littlefield v. Morrill, 97 Me. 505, 54 Atl. 1109, 94 Am. St. Rep. 513; Sparks v.
Crescent Lbr. Co. (Tex. Civ. App. 1905) 89 S. W. 423.
3. Allen v. Roper, 75 Ark. 104, 86 8S. W. 836; Klondike Lbr. Co. v. Williams, 71 Ark.
334, 75 S. W. 854 (distinguishing Tucker v. St. Louis Etc. R. Co., 59 Ark. 81, 26
8S. W. 375); Doe v. Monson, 33 Me. 430; Reilly v. Stephenson, 62 Mich. 509;
Babka v. Eldred, 47 Wis. 189, 2 N. W. 102; 599; Munger v. Lenroot, 32 Wis.
541. Contra, Wright v. Terry, 23 Fla. 160, 2 So. 6; Kendall v. Davis, 52 Ga.
9; Jacobs v. Knapp, 50 N. H. 71. And see Wilson v. Barnard, 67 Calif. 422,
7 Pac. 845; Gross v. Eiden, 53 Wis. 543,11N.W. 9. See Timber Co. y. Joseph
142 Wis. 55, 124 N. W. 1049. ,
. Carver v. Bagley, 79 Minn. 114, 81 N. W. 757.
. Hyde v. German Nat'l Bank, 115 Wis. 170, 91 N. W. 230.
. Oliver v. Woodman, 66 Me. 54; Dwinel v. Fiske, 9 Me. 21; Carr v. Brick, 113
Mich. 664. ;
‘7. Oliver v. Woodman, 66 Me. 54; Shaw v. Bradley, 59 Mich. 199. Of. Wright v.
Terry, 23 Fla. 160; Bicknell v. Tuckey, 34 Me. 273, Gamble v. Gates, 97 Mich.

Oo ih

465; Federspiel v. Johnstone, 87 Mich. 303; Munroe v. Sedro Lbr. Etc. Co., 16.

Wash. 694.

a

LOGGING ROADS AND RAILROADS 177

under a lien for services performed on the logs of another. !
The number of decisions interpreting lien statutes is very
large, and the development of this phase of the law so ex-
tensive that an attempt to fully discuss it in this treatise is
not considered advisable. Any reader specially interested
in the procedure necessary to perfect, preserve and enforce
a lien upon logs, lumber or other timber products should
consult the lien statutes and the text books or encyclopedic
articles devoted to a discussion of liens. ?

§129. Logging Roads and Railroads. The public has
no right to use a private logging road, but the use of such a
road does not of itself imply an agreement to pay for the
use.* Even the custom of the public to use old logging
roads does not give a right to use such a road if the owner
of the land objects. * A breach of an agreement by which
one party agrees to prepare a road over which the other
party is to haul logs has been held to render the party at
fault liable for damages at least to the amount of the profits
that the other party would have realized except for the
failure to prepare the road.* In several states there are
laws specially authorizing the construction of logging roads,
railroads and flume-ways, and in a few provision is made for
the charging of a toll for the use of such road, railroad or
flume by another.® A logging railroad has been defined
by a court as one constructed for the convenience and ac-
commodation of lumbermen.’ Although the operators of
such railroads are required to exercise reasonable care both

1. Minton vy. Underwood Lbr. Co., 79 Wis. 646; Losie v. Underwood, Lbr. Co., 79
: Wis. 631. See McGuire v. McCallum, 110 Mich. 91.
2. See Cyclopedia of Law & Procedure, 1st Ed., Vol. 25, pp. 1586 to 1600.
American & English Encyclopedia of Law, 2d Ed., Vol. 19, pp. 536-542.
. Tho . Parrott, (Wis.) 82 N. W. 554.
. Marshfield Land & Lbr. Co. v. John Week Lbr. Co. (Wis.) 84 N. W. 434.
. Corbett v. Anderson, 85 Wis. 218; Cf, Sutton v. Lbr. Co. (Ky.) 44 8. W. 86 (Oral
evidence not admitted.)
6. See
N. C. Rev. Laws, 1908, Pell, Sec. 2686.
N. M. Annot. Stat. 1915, Secs, 2117-2118 (Logging R. R. common carriers).
Ore. Oregon Laws, 1910, Lord, Secs. 6503-6524, Secs. 6857-8 (condemnation).
Pa. Purdon's Digest, 1905, Stewart, pp. 2345-2356.
Wash. Annot. Code, 1910, Rem. & Bal., Secs. 7106-7109. -
W. Va. Code 1906, Sec. 2370. See Code. 1913, Hogg, See 3135 (railway tram).
Wis. Statutes 1915, Sec. 1771.
But see, Garbutt Lbr. Co. v. Ga. & Ala. Ry. (Ga.) 36 S. E. 942 (private R. R, may
not take private property.)
7. Tompkins v. Gardner etic. Co. 69 Mich. 58, 37 N. W. 43.

orp

178 PREPARATION AND MANUFACTURE

in the construction and operation of them, it has been held
that they are not liable for injuries to employees or to others
to the same extent as the operators of a common earrier
railroad. !

§130. An Employer’s Liability for Injuries to Em-
ployees. Under the principles of the common law as ap-
plied to the relationship of master and servant, an employer —
is liable for injuries suffered by an employee in the regular
course of his employment unless the injuries have resulted
from the carelessness or other fault of the employee, or it be
established that the employee understood fully the danger
to which he was exposed in the employment and thus vol-
untarily assumed the risk incident to the employment.
However, the employer is not liable as an insurer, but is
merely required to exercise the reasonable care and pre-
caution against injuries to employees that the nature of the
employment demands and that would be exercised by an
employer of ordinary prudence.” The degree of care re- .
quired in a business of peculiar hazard is greater than that
required in a less hazardous employment, * but the basis
. of liability in all cases is the negligence of the employer. *

If the direction of the work be delegated by the master
to an agent, the master will be liable for any injury to an
employee through the fault of such agent, the same as if he
had himself been in direct charge of the work and had been
remiss in his legal duty. °

The master is liable only for injuries that are received
while the servant is acting within the scope of his employ-
ment. ® But an employee who, on his way to discharge
a directed duty, stopped in an open thoroughfare of a saw-
mill to exchange remarks with a fellow employee concerning
the operation of a part of the machinery of the niilhand was
there injured by the breaking of a belt on a pulley eight feet

1. Lynn v. Andrim Lbr. Co. (La.) 29 So. 874; Simpson v. Enfield Lbr. Co. 131 N. C.
518, 42 S. E. 939. .

2. Babcock Bros. Lbr. Co. v. Johnson, 120 Ga. 1030, 48 S. E. 438; Bouck v. Jackson
Sawmill Co. 49 S. W. 472, 20 Ky. L. Rep. 1542; Eagan v. Sawyer Lbr. Co. 94
Wis. 137, 68 N. W. 756; Olsen v. North Pacific Lbr. Co. 100 Fed. 384.

3. See Bessemer Land etc. Co. v. Campbell, 121 Ala. 50, 25 So. 793, 77 Am. St. Rep.

17; Galveston etc. R. Co. v. Gormley, (Tex. Civ. App. 1894) 27 8S. W. 105.

. Knight v. Cooper, 36 W. Va. 232, 148. E. 999.

. Evans v. Louisiana Lbr. Co. 111 La. 534, 35 So. 736.

. Lindstrand v. Delta Lbr. Co. 65 Mich. 254, 32 N. W. 424.

Oo

INJURIES TO EMPLOYEES 179

distant from where he stood was held not guilty of contribu-

tory negligence. !

The negligence of a master may consist in the operation
of defective or unnecessarily dangerous machinery, or in the
assigning of an inexperienced man, who is ignorant of the
danger involved, to a work that requires unusual skill or
precaution. In a ease in which a new employee in a saw-
mill was injured by stepping into a hole in the floor, the
court held that evidence that the mill was constructed in the
customary manner of mills in that region was competent
but not conclusive evidente in rebuttal of an allegation of
negligent or defective construction.” <A railroad employee
injured through the breaking of the side stakes on a car used
for the transportation of logs was allowed to recover for
the injury on the ground that it was the duty of the railroad
company to have the transportation equipment in proper
condition to prevent such accidents. *

An employee who was unexpectedly directed to go upon a
pile of lumber and received an injury because of the de-
fective condition in which the lumber had been piled through
negligence imputable to his employer was held not to have
assumed the risk of the accident. 4

On the other hand, a man of mature years, who had been
a carpenter for ten years and had worked on circular saws
for three years, was held to have assumed the risk of an
injury on a saw that caused his death, even though evidence
were offered that guards were sometimes used as a pre-
caution against the occurrence of just such an accident; °
and an employee, accustomed to working about a main saw
in a mill, who was injured within two hours after being
placed at work on a trimming saw in the same room was held
. Moore v. Lbr. Co. (La.) 29 So. 990.

. Nyback v. Champagne Lbr. Co. 109 Fed. 732.

. Port Blakely Mill Co. v. Garrett, 97 Fed. 537; Cf. Lynn v. Andrim Lbr. Co.
(La.) 29 So. 874; and Simpson v. Enfield Lbr. Co. 131 N. C. 518, 42 S. EF. 939
(Both holding liability of operators of logging railroad somewhat restricted),
and Fowles v. Briggs, (Mich.) 74 N. W. 1046 in which a shipper who improperly
loaded a car with lumber was held not liable to injuries to a brakeman resulting
from the negligent loading, since shipper owed no legal duty to the brakeman
employed by the railroad.)

4. Millard v. Street Ry. Co. (Mass.) 53 N. E. 900, Cf. Spicer v. Boice, (N. J.) 49
Atl. 441, (Lumber dealer liable for injury to customer caused by faulty stairway
in lumber shed.)

5. Tenanty v. Boston Mfg. Co. (Mass.) 49 N. E. 654; Cf. L. & N. R. R. Co. v. Semonis

(Ky.) 51S. W. 612, (Carpenter injured by splintery lumber, could have known
danger, took own risk.)

who =

180 PREPARATION AND MANUFACTURE

to have assumed the risk in standing where ordinary intelli-
gence would have indicated that there was danger. !

The negligence of an employer may also consist in the em-
ployment of an unskilful or incompetent person through
whose fault injury results to a fellow servant, but the negli-
gence of a skilfull and competent fellow-servant cannot
ordinarily be imputed to the master. ? Itis the duty of an
employee to report to his master, or to the one who hires
and discharges the workmen, the unskilfulness or incom-
petency of a fellow-servant, if known to him, and a failure
so to do indicates an assumption of the risk by himself. *

The determination of whether two persons may legally
be classed as fellow-servants is often a perplexing problem.
The test has been said to be subjection to the control and
direction of the.same general master in the same common
object. 4 The theory of the assumption of risks because
of the relationship of fellow-servants has often been carried
to the extreme. It has been held that a locomotive engineer
operating an engine for hauling timber to a mill and for
transporting woodcutters to their work was a fellow-servant
of the woodcutters and that the common employer was not
liable for injuries to the latter caused by the negligence of
the engineer. > On the contrary, it has been held that an
inspector whose duty it was to prevent logs containing em-
bedded iron from passing through a sawmill was not a
fellow-servant of those engaged in sawing the logs and that
the common employer was liable for injuries suffered by
those within the mill through the negligence of the one em-
ployed to look for iron. ®

A promise by a master to remedy a defective machine or to
replace an incompetent fellow-servant will not necessarily
charge the master with responsibility for a subsequent in-
jury to the promisee who continues in the work, but if the
work is not imminently dangerous, the question of whether
the employee was guilty of contributory negligence -may
properly be submitted to a jury; 7 and it has been held that
=, pelinas v. Deering, (Me.) 44 Atl. 922.

Ingram v. Dodge Lbr. Co. 33 8. E. 961.

. Weeks v. Scharer, 111 Fed. 330.

Ingram v. Hilton & Dodge Lbr. Co. (Ga.) 33 S. E. 961.
Raily v. Garbutt (Ga.) 37 S. E. 369.

. Covington Sawmill Mfg. Co. v. Clark, (Ky.) 76 8S. W. 438.
. Cross Lake Logging Co. v. Joyce, 83 Fed. 989.

NO op ON

INJURIES TO EMPLOYEES 181

a servant who had directed the attention of his foreman
to the improper condition of a saw and had been assured
that it would be fixed and told to go on with his work, did
not assume the risk of the dangerous employment by con-
tinuing work a reasonable time after the promise.’ Had
he continued work without the receipt of a promise that
the condition would be remedied, or for so long a time after
the promise that he should have had reasonable ground to
believe that the master did not intend to keep the promise,
he would have been held to have assumed the risk.

Although the employment of a minor in a dangerous
work without the consent of his parent is not negligence
per se,” greater care must be exercised by the master as
to minors than as to adult employees and he may be liable
for injuries to a minor irrespective of negligence on the
part of the minor.* The same rule should be applied in
the case of a sub-normal adult. However, a minor must
exercise the degree of care and discretion that may rea-
sonably be expected in one of his age and experience. An
intelligent boy of seventeen years who, after working two
years at a lath machine, was injured while attempting to
clean out clogged material from the machine without stop-
ping it, was held to have assumed the risk,* and the em-
ployer was absolved from liability for the injury of a boy
over fifteen years of age who, subsequent to being warned
as to a danger which he understood, stumbled on a rise
in the floor of a mill and was injured by a saw.°

The law of the place in which the injury occurs is ordin- ©
arily applicable to personal injury cases. °

Within the last two decades, and especially within very
recent years, there has developed an entirely new social
attitude regarding injuries to employees. The new trend
of public opinion has occasioned an agitation for legislative
action that has resulted in the enactment of many laws for
the relief of employees. These laws, known in some states

Bell & Coggeshall v. Applegate, (Ky.) 62 S. W. 1124.

. Pennsylvania Co. v. Long, 94 Ind. 250.

. Marbury Lbr. Co. v. Westbrook, 121 Ala. 179, 25 So. 914.

. Larson v. Knapp, Stout & Co. (Wis.) 73 N. W. 992.

. Journeaux v. Stafford Co. (Mich.) 81 N. W. 259.

. Rich v. Saginaw Bay Towing Co. 132 Mich. 237, 93 N. W. 632, 102 Am. St. Rep.
422.

Oop whe

182 PREPARATION AND MANUFACTURE

as employers’ liability acts and in others as workmen’s com-
pensation acts, vary greatly in the measure of protection
afforded employees. However, they all abrogate partially
or entirely the doctrines of assumption of risk, contributory
negligence and fault of fellow-servant which formerly af-
forded unsympathetic employers an adequate defense to
most actions for damages. Some of these laws have afforded
employees an election between the benefits of the statute
and the enforcement of their rights under the common law.
The more advanced laws of this character provide a grad-
uated scale of compensations, considered commensurate
to the decrease in earning power caused by the various in-
juries. As a means of enabling employers to meet the
burden thus imposed upon their business, a system of in-
surance against the losses due to accidents has been pro-
vided in several states. Since August 1, 1908, eompensa-
tion for injuries to certain employees of the United States
has also been provided by an act of May 30, 1908, (35 Stat.
L. 556) and its amendments..!

Public act number 267 of the sixty-fourth Congress, ap-
proved by President Wilson on September 7, 1916, super-
cedes the previous acts and provides compensation to all
Federal employees for injuries sustained in their employ-
ment provided the injury was not caused by the wilful mis-
conduct of the employee or was not the proximate result of
the intoxication of the employee.

The legislation of this character is still in a formative stage
and is receiving modification almost yearly in many states.
For this reason, as well as because compensation to em-
ployees is only indirectly related to the subject matter of
this chapter, it is not considered advisable to include
references to the state statutes. Any reader particularly
interested in this branch of the law, should consult. the late
session laws and the most recent treatises devoted to this
subject.

1. Amendments, Act Mar. 4, 1911, (86 Stat. 1363); Act. Mar. 11, 1912, (37 Stat. 74);
Act July 27, 1912, (37 Stat. 238, 239)

Site

_ CHAPTER XII

‘CONTRACTS FOR THE SALE OF TIMBER PRO- |
DUCTS |

§131. Essentials and Seope of Contractual Agree-
ments. Sales of logs and other products of severed trees
are subject to the general rules and principles of law regard-
ing the sale of personal property.! The offer must be defi-
nite and if the acceptance is restricted or conditional, the
party making the original offer must assent to such modifi-
cation. The contract may consist of a number of different
letters or other expressions of the intention of the parties, ?
- but it must be clear that the minds of the parties finally met
on a definite agreement. Advertisements or general busi-
ness notices are generally too indefinite to constitute an
offer such as may ripen into a contract by acceptance, * and
even a series of letters followed by a conference, the writing
out of the schedules of lumber with the prices agreed upon,
and the signature of the same by the party to be charged,
without a definite statement that a purchase had been made,
was held in New York not to meet the requirements of the
section of the statute of frauds requiring a reduction to
writing of contracts for the sale of goods above a certain
value, when no part of the goods are delivered or part pay-
ment made. + On the other hand a Tenessee court held that,
where a contract was only partially reduced to writing, oral
evidence was admissible to show that title was to remain in
the vendor until the purchase price was paid. ® If a pur-

1. Bullock v. Lbr.. Co. (Cal.) 31 Pac. 367; Palmer v. Huston, 67 Wash. 210, 121
Pac. 452; Lbr. Co. v. Wilson 69 W. Va. 598, 72 S. E. 651.

2. Wonderly v. Holmes Lbr. Co., 56 Mich. 412, 23 N. W. 79; E. B. Williams & Co,
v. Louisiana Lbr. Co. (La.) 29 So. 491. True also as to a sale of standing tim-
ber, Swallow v. Strong, (Minn.) 85 N. W. 942.

8. Zeltner v. Irwin, 49 N. Y. Suppl. 337; But see Robinson v. Leatherbee Tie &
Lbr. Co. (Ga.) 48 S. E. 380 (Goods shipped in response to advertisment and
received.)

4. Slade v. Boutin, 71 N. Y. Suppl. 740.

5. Meyers v. Taylor, (Tenn.) 64 S. W. 719. See Wood v. Moriarty, 15 R. I. 518
(1887) (Question of parol evidence, sale lumber under seal).

183

184 THE SALE OF TIMBER PRODUCTS

chaser of logs has an opportunity to inspect them before pay-
ment therefor, or before the logs are manufactured into lum-
ber, the courts will ordinarily reject a contention that there
was an implied warranty that the logs were straight and
sound or adapted to the purposes to which the purchaser
intended to devote the material produced therefrom.! Even |
a statement in a contract as to the amount of-logs sold may -
be construed as a mere estimate and not a warranty, ? and
where both parties could read and both had signed a con-
tract, it was held that proof of a misrepresentation by one
party as to the contents of the written contract, without evi-
dence that the other party was deprived of an opportunity
to read it, or that the first party had fradulently prevented
the other from reading it, did not establish the kind of legal
fraud necessary to make the contract void.* Where there
were representations as to the quality of lumber to be sold,
but a subsequent refusal on the part of the vendor to guar-
antee the grades, a Louisiana court held that one purchasing
after such refusal could not establish a breach of warranty
as to grades. Anagreement for the substitution of a cheap-
er grade of lumber for that called for by a contract and the
acceptance of it has been held by a Mississippi court not to
necessarily signify that the purchaser was to pay the same
price for the cheaper grade; * but a Texas court has expressed
the opinion that in the absence of evidence to the contrary
the legal inference would be that the purchaser agreed to
take the cheaper grade at the same rate. °

§1382. Legal Delivery and Transfer of Title. The
general rule regarding sales of personal property is that the
seller’s title divests and that of the purchaser vests at the
moment of the transfer of the right of possession from the
vendor to the vendee. This legal delivery does not neces-

arily involve a transfer of the physical possession of the

i

. Brewer v. Arantz, (Ala.) 26 So. 922; Maxwell v. Lee, 34 Minn. 511, 27 N. W.
196; Ketchum v. Stetson Etc. Mill Co. 33 Wash. 92, 73 Pac. 1127.
. Switzer v. Pincomming Mfg. Co., 59 Mich. 488, 26 N. W. 762.
- Dunham Lbr. Co. v. Holt, (Ala.) 26 So. 663.
E. B. Williams & Co. v. Louisiana Lbr. Co. (La.) 29 So. 491.
Hunter v. Lake Mills (Miss.) 29 So. 519.
. Florida Athletic Club v. Hope Lbr. Co., (Tex. Civ. App.) 44 8S. W. 10.

ap YN

DELIVERY AND TRANSFER OF TITLE 185

property sold. The delivery may be constructive or .sym-
bolical, and the transfer of the goods sold to the actual pos-
session of the purchaser does not necessarily effect a legal
delivery and change of title. The question as to when de-
livery is to be effective is determined by the intention of the
parties, and this intention will be gathered from the sur-
rounding circumstances and. the conduct of the parties if
the terms of the contract are not clearly expressed in words.
If delivery is to be made at a certain place, the transfer of
title will not be effected until such delivery is made. Ifeach
of the parties has done all that he is required to do under the
contract, and there is no condition expressed in the contract,
title will pass to the buyer as soon as the agreement is con-
cluded even though payment or delivery, or both payment
and delivery, be delayed; but if the seller is required by the
eontract to perform some service as to the logs or lumber
subsequent to the sale, or the logs are to be scaled or the
lumber measured as a basis for payment, title will not ordi-
narily pass until these requirements are fulfilled.! Actual
delivery of all the logs in a lot is not essential to a valid sale
of the lot. A part may be delivered, or there may be a
transfer of possession by merely pointing out or otherwise
designating the logs which are sold within a stream or on its
banks. A scale or survey of the logs in the manner agreed
upon by the parties will ordinarily effect the symbolical de-
livery and vest the title in the purchaser. ? If the contract
does not definitely fix the time of delivery, a reasonable time
after the sale will be allowed and required.* A _ provision
1. Ray v. Schmidt, 7 Ga. App. 380, 66 S. E. 1035; Davis v. Cox, 13 Ga. App. 509
79 S. E. 383; Sempel v. Lbr. Co. 141 Iowa 586, 121 N. W. 23; State v.
Meehan, 92 Minn. 283, 100 N. W. 6; Martin v. Hurlbut, 9 Minn. 142;
Strong v. Dunning, 175 Pa. St. 586, 34 Atl. 919. Carter v. Tie Co., 184 Mo.
App. 523, 170 S. W. 445; See also Grant v. Merchants Etc. Bank, 35 Mich.
515; Creelman Lbr. Co. Vi, «DS Lisle, 107 Mo. App. 615,
82 8S. W. 205; Hurd v. Cook, 75 N. Y. 454; Gatzmer v. Moyer, 9 Pa. Cas. 567,,
13 Atl. 540; Cook v. Van Horne, 76 Wis. 520, 44 N. W. 767; Log Co. v. Lank
Co. 145 Wis. 286, 129. N. W. 1100; Coles v. Lbr. Co. 150 N. C. 183, 63 S, Ex.
736. Chaney v. Sutherland-Innes Co., 80 Ark. 572. 98 S. W. 967.
2. Bethel Steam Mill Co. v. Brown, 57 Me. 9, 99 Am. Dec. 572; Boynton v. Veazie.
24 Me. 286; Jewett v. Warren, 12 Mass. 300, 7 Am. Dec. 74; Brewster v. Leith,
1 Minn. 56. See also Gasper v. Heimbach, 53 Minn. 414, 55 N. W. 559. As
to a raft see Williams v. Johnson, 26 N. C. 233; Hungerford vy. Winnebago
Tug Etc. Co. 33 Wis. 303; Nolan v. County (Okl.) 152 Pac. 63: Lbr. Co. v.
Cameron, 45 Tex. Civ. App. 350, 101 8. W. 488; Middlebrook v. Thompson,
19 U.. ©. Q,.B. 307. ‘
8. Yellow Poplar Lbr. Co. v. Stephens, 69 S. W. 715, 24 Ky. L. Rep. 621; Chapman
v. Ingram, 30 Wis. 290. See also Irish v. Pauley, (Calif. 1897) 48 Pat. 321:
Peterson v. South Shore Lbr. Co., 105 Wis. 106, 81 N. W. 141. Lbr. ‘Co. v.

Magne-Silica Co. (Cal.) 112 Pac. 1089; Chunn v. Lbr. Co.. 175 Mo. App. 641,
158 8. W. 94.

186 THE SALE OF TIMBER PRODUCTS

in the contract for the forfeiture of all logs not delivered
within a certain time will not be enforced; ! but a provision
that fifteen cents per hundred feet should be deducted from
the purchase price of all logs not delivered by a certain date
has been sustained as a statement of liquidated damages
and not a penalty such as the law will not enforce.? <A loss
of logs or other timber products before delivery will fall upon
the seller, even though title has passed, if the seller has
failed to exercise ordinary care to prevent such loss; * but in
a Nevada case in which payment was to be made when char-
coal was delivered to a certain place it was held that, the
manufacture of the product having been completed, the
title had passed and the loss must fall upon the purchaser
even though delivery to the place contemplated was not
effected previous to its destruction.‘ In Washington
under a contract for the cutting and rafting of logs which
provided that the price agreed upon was to be paid when the
logs were scaled, the court held that delivery was effected
when unscaled logs were turned over to the control of the
purchasers at their request, and that the seller could recover
_.the value of logs which had escaped from the control of the
purchasers’ tug and had been negligently abandoned by
them. * In other words, the court held that title had passed
when the logs were taken by the purchasers’ tug, even
though something remained yet to be done to ascertain the
total value of the property transferred. And in an Arkansas
case it was held that an agreement that the seller should re-
ceive an additional amount upon the completion of loading
the lumber sold, if it was found that there was a greater
amount than that named in the contract, did not operate to
defer the transfer of title until the exact amount of lumber
was ascertained. ®° The mere physical delivery of timber into

1. Daniel v. Day Bros. Lbr. Co., 85 S. W. 1092 27 Ky. L. Rep. 650.

2. Kilbourne v. Lbr. Co. (Ky.) 64 S. W. 631. Cf. Wall v. Lbr. Co. 124 La. 844, 50
So. 769 (during floating season).

3. Buie v. Browne, 28 N. C. 404; Bigler v. Hall, 54 N. Y. 167; Lbr. Co. v. Cornett,
161 Ky. 98, 170 S. W. 516. 7

4. Bianchi v. Maggini, 17 Nev. 323. See Woodstock Iron Co. v. Reed, 81 Ala. 305.

Izett v. Stetson & Post Mill Co. (Wash.), 60 Pac. 1128; Cf. Roy v. Griffin (Wash.);

66 Pac. 120, (Shipment of shingles on bill of lading in name of purchaser.)
Eversole v. Wilson, (Ky.) 123 S. W. 1196; Noyes v. Marlott, 156 Fed. 753,
84 C. C. A. 409.

6. Anderson Tully Co. v. Rozelle, (Ark.) 57 S. W. 1102.

DELIVERY AND TRANSFER OF TITLE 187

the possession of the purchaser will not operate to transfer
the title if it be the understanding of the parties that pay-
ment in cash or other form shall be a condition precedent
to the legal delivery of the timber; ! and if a contract of sale
requires a delivery of logs, lumber, or other products on ears
at a certain place a subsequent marking of the specific goods
to be covered by the sale as “sold and delivered” will not
effect a transfer of the title.* The conditional acceptance
of a part of the logs contemplated by a contract of sale does
not preclude the purchaser from obtaining damages for a
failure of the seller to comply fully with the requirements
of his contract; * and an acceptance of logs delivered later
than the time stipulated in the contract does not constitute
a waiver of the right of the purchaser to recover the damages
suffered, if there are not circumstances showing intention
to waive this right. The keeping of lumber for a period
of fifteen days without objection has been held to establish
an acceptance of it.° A delivery of ties along a railroad
track as agreed and an inspection of the same will consti-
tute a legal delivery and effect a transfer of title in the ab-
sence of a showing of fraud as to the inspection.® The
same principle has been applied to lumber’ In a Michigan
ease in which lumber of one party in the mill yard of another,
acting as agent, was sold to a third party at specified rates
for different qualities, the amount of which was not ascer-
tained at the time of sale, with an agreement that the seller
should stand all charges of putting the lumber over the rail
of the vessel and that the cost of inspection was to be shared
equally, and with no payment for lumber till after shipment,
it was held that the title did not pass at the time of the
sale; § and in New York under a contract for the planing of
lumber to be selected from various piles in a mill yard and to
be taken in installments as notification was given that a

1. Adams v. Roscoe Lbr. Co. (N. Y.) 53 N. E. 805; Woolsey v. Axton (Pa.) 43 Atl.
1029.

2. First Nat'l. Bank v. Peck, 70 N. Y. Suppl. 471.

3. Duplanty v. Stokes, 103 Mich. 630, 61 N. W. 1015; Walker v. Cooper, 150 N. ©.
128, 63 8, E. 681. Cf. Lumber Co. v. Hopson, (Ark.) 133 S. W. 823.

. Belcher v. Sellards (Ky.) 43 8. W. 676. Cf Lbr. Co. v. Irwin. 24 Can. 8S. Ct., 607.

. O'Sullivan v. New York Lumber Corp. 61 N. Y. Suppl. 493

. Intern’! & Gt. Nor. R. R. Co. v. Ogburn (Tex. Civ. App.) 63 8S. W. 1072.

O’Sullivan v. New York Lbr. Corp., 61 N. Y. Suppl. 493.

. Lumber Go. v. Charlton (Mich.) 87 N. W. 268.

CONDO

188 THE SALE OF TIMBER PRODUCTS

quantity had been finished, it was held that title to any par-
ticular portion of the lumber did not pass until it was dressed
and the purchaser notified. ! -In a Louisiana case one who
purchased lumber for himself, but had the bill of sale ex-
ecuted to another from whom he obtained credit with which
to effect the purchase, was denied the right to assert that the
lumber belonged to his creditor and that he was liable only
for so much as he had actually used. ? In an action on a
contract for the sale of all the pine timber on a tract to a com-
pany engaged in the logging and manufacture of lumber,
with a clause reserving title to the owner until payment was
made for the timber, but under which the vendor had per-
mitted the purchasing company to place its mark upon all
logs and to sell them as if it had title, the court held that the
vendor was estopped from asserting title against a third
party who had bought the logs without actual notice of the
condition in the contract and that a statute regarding the
recordation of conditional contracts was inapplicable. *

§138. Contracts for Delivery in Installments or as
Manufactured. Controversies have arisen where con-
tracts have been made for the purchase of all the output of a
certain mill or for all lumber of certain grades produced at
the mill. It has been held that the phrase ‘‘mill-run”’ in a
contract for the purchase of lumber included all merchant-
able lumber produced at the mill, except the ‘‘mill-culls,’’
which were excluded by the terms of the contract, irre-
spective of the percentage of the different grades; ‘ that
‘‘mill-tally’”’ in a contract for sawing logs included “mill-
culls’, > and that a logger under a contract providing for
compensation at a certain rate per thousand exclusive of
‘dead culls’’ could not recover on a quantum meruit for the
logging of cull timber by showing that such logs were man-
ufactured and sold. ® A contract which required one party
to furnish all the lumber needed by the other for mining pur-
poses, and provided that if the former failed to furnish lum-

. Chambers v. Austin, 68 N. Y. Suppl. 53.

Cannon v. Vaughn Lbr. Co. (La.) 27 So. 276.

. Mississippi River Log Co. v. Miller (Wis.) 85 N. W. 193.

. Wonderly v. Holmes Lbr. Co., 56 Mich. 412, 23 N. W. 79.

. Corneil v. New Era Lbr. Co., 71 Mich. 350, 39 N. W. 7.

. Brigham v. Martin 103 Mich. 150, 61 N. W. 276. Cf. Hayes*v. Cummings, 99
Mich. 206, 58 N. W. 46 (‘Purchase scale’’).

Oo FR whe

DELIVERY IN INSTALMENTS 189

ber as needed for such mining purposes the latter might hire |
another to produce it and charge the cost to the one obli-
gated to saw lumber, was held to bind the mine operator to
take from the sawyer all the lumber needed in the mine. !
Under a contract for the sale of the total yearly cut of a mill,
except mill culls, the court held that evidence as to excep-
tionally low water was admissable in explanation of failure
to deliver the amount contemplated by the contract, but that
the mill owner could not recover for all lumber delivered
when much of it was not of the thickness agreed: upon; ? and
in a contract for the purchase of the output of a sawmill by
grades, the forwarding of drafts to the seller with a state-
ment of the purchasers grading as each installment of lum-
ber was received, and the cashing of the drafts by the seller
was held to make it clear that the parties to the contract
had not intended that the seller’s grading should be made the
basis of payment. * In an action on a contract for the sale
and delivery of lumber it has been held that the withholding
of the pay for one car until another should be delivered, for
the purpose of enforcing a fulfillment of the contract, would
not release the vendor in the absence of circumstances indi-
cating that the vendee did not.intend to fulfill his part; 4
and in a sale of a large amount of lumber with provision for
a payment when it was loaded on ears, it was held that
though the vendor could present evidence of a failure of the
purchaser to make the partial payments as they became due
to justify a rescission of the contract.on his part, he could
not recover for the contract price of the lumber delivered, if,
before a formal rescission and without the consent of the
purchaser he had sold over one-half of the lumber covered
by the contract.*' That is, although the contract was
severable as to partial payments, it was entire as to per-
formance. Where a contract for the sale of wood, with a
provision for payment as fast as the purchaser sold it, stipu-
lated that title should remain in the vendor until payment
was made, an action by the vendor for the sale price of that

. Tutwiler v. McCarty, (Ala.) 25 So. 828.

. Barr v Henderson, (La.) 30 So. 158.

. Long-Bell Lbr Co. v. Stump, 86 Fed. 574.
. West v. Bechtel, (Mich.) 84 N. W. 69.

. Easton v. Jones, (Pa.) 44 Atl. 264.

ar WON He

190 THE SALE OF TIMBER PRODUCTS

already disposed of by his vendee, was held not to constitute
a waiver of a right to sue for the conversion of the remainder.*

§134. Delivery to a Common Carrier. Where a con-
tract for the sale of timber products is silent as to the place
of delivery, delivery of the property by the vendor to a com-
mon carrier for transportation to the buyer will of itself act
to transfer the title from the vendor to the vendee to whom
the property is consigned by a bill of lading. In such a case
the law considers the carrier to be the bailee of the con-
signee and not of the consignor.? If a part or all of the
property is lost or damaged after shipment the carrier is il-
able to the consignee and not to the consignor, and the car-
rier is under no obligation to hold the property for the use
or protection of the consignor should doubt arise as to the
ability or intention of the consignee to pay the purchase
price of the property. However, this presumption of deliv-
ery rests upon the implication of intention to deliver shown
in the billing of the property to the purchaser, and if it may
fairly be gathered from the language of the bill of lading or
from the terms of such bill and the surrounding cireum-
stances that the vendor did not intend that the delivery to
the carrier should constitute a delivery to the vendee, the
shipment will not operate as a transfer of title to the vendee.
If the bill of lading calls for a delivery to the ‘‘holder,”’ the

carrier will be required to deliver to the one who presents.

the bill, but if the property is consigned to the vendor or to
his order, the carrier will be liable to the consignee only for a
proper delivery at the point of destination. As a means of
protection against loss through the extension of credit as
well as to meet certain other conditions of trade, vendors
of timber products, like other merchants, have been accus-
tomed to sometimes ship lumber consigned to their own
order and to attach to the bill of lading a bank draft drawn
upon the vendee as payee. When this is done the carrier is
authorized to deliver the property to the vendee only upon
condition that the draft be accepted by him.* Under such
a shipment no contractual relation exists between the car-

1. Bryant v. Kenyon (Mich.) 81 N. W. 1093.
2. A. J. Neimeyer Lbr. Co. v. Burlington & Missouri Riv. R. R. Co., 54 Neb. 321.
3. The Prussia, 100 Fed. 484.

,

eS

DELIVERY TO A COMMON CARRIER 191

rier and the vendee until the draft is accepted. It has been
said that a prepayment of freight by a vendor on goods sold
and shipped is prima facie evidence of an intention on the
part of the vendor to retain title to the property while in
transit.! Under a contract providing for an inspection and
count of staves by the purchaser at his railroad point, it was
held that the shipper retained title until acceptance of the
property by the vendee. ”

The duty of a common earrier to deliver timber products
to the right person, unless prevented by an act of God or by
a public enemy, is absolute.* If a consignee refuses or
fails to accept the lumber or other timber product, it is the
duty of the carrier to notify the consignor and hold the goods
for a reasonable time; ‘ but if the shipper is himself the con-
signee, a refusal to accept constitutes an abandonment, and
the shipper cannot later hold the railroad for conversion. °

$135. Right of Stoppage. If full title to the lumber
or other product has not already passed to the consignee, the
consignor usually has what is known as the right of stoppage
in transitu, as a protection against loss through insolvency
of the consignee. This right, which is merely an extension
of a vendor’s lien, exists until actual delivery is made from
the carrier to the consignee or his vendee..§ Thus it was
held in one case that the holding of lumber in storage for
several months by the carrier and the acceptance by the ship-
per of the notes of the insolvent consignee did not destroy
the right of stoppage, 7 and in another that the holding of
lumber by a railroad company because the consignee failed
to accept and pay the freight, and a subsequent arrangement
by which the railroad agreed to purchase the lumber and
credit its value on a debt owed to it by the consignee did not
operate to defeat the consignor’s right of stoppage in
transitu. § In another case in which lumber consigned to
one who had made false statements to a commercial agency

. A. J. Neimeyer Lbr. Co. v. Burlington & Mo. Riv. R. R. Co., 54 Neb. 321.
. Miller v. Somerset Cedar Post & Lbr. Co. (Ky.) 51 8. W. 615. ;

. Oskamp vy. Southern Express Co. (Ohio) 56 N. E 13.

Bailments, Inc. Carriers, Schouler, ed. 1905 (Boston) Sec. 399, p. 240.

Beedy v. Pacey (Wash.) 60 Pac. 56.

Branan v. Atlanta & West Point R. R. Co. (Ga.) 3S. E. 836.

. Brewer Lumber Co. v. Boston & Albany R. R. Co. (Mass.) 60 N. E. 548.
Wheeling & Lake Erie Ry. Co. v. Koontz et al. (Ohio) 54 N. E. 471.

90 NS Oh oo to

192 THE SALE OF TIMBER PRODUCTS

regarding his business assets, was delivered by the railroad
to a third party upon an order from the consignee, the ship-
per was allowed to replevin the lumber without tendering the
amount of freight paid by the consignee’s vendee who had
knowledge of the fraud. !

§136. Rights and Liabilities of Common Carriers in
Particular Cases. When timber products can be shipped
over two or more routes for the same rate, the receiving rail-
road company and not the shipper may determine which
connecting line shall be used.? Delivery of lumber upon
its own pier by a railroad is not delivery to a steamship com-
pany such as to relieve the railroad from risk as to lumber. *
A contract by an agent of a railroad to ship lumber for a cer-
tain rate from a point in the United States to one in Canada
was held to include custom duties and to be within the ap-
parent scope of the agent’s authority, ‘ and the measure of
damages for the failure of a railroad to furnish ears as agreed
for shipment of lumber was held to be the difference between
the cost of obtaining cars and the contract price.® It has
been held that a log driving corporation is a common carrier
to the extent that the statutory right of a vendor to stop
logs in transitu as a protection against an insolvent vendee
applies to the transportation of logs by such a company. °
A provision in a towing contract that the owner of logs
might terminate the contract at any time that the services
of the tug-man were unsatisfactory was held to authorize
a rescission of the contract before any services were per-
formed where the tug-man could not be found when the own-
er was ready for towing and the company honestly believed
from this fact that the tug-man was unreliable’ A water
transportation company on the Great Lakes was relieved
from liability for the loss of logs without fault on its part
during a storm on the ground that the title to the lumber

Soper Lbr. Co. v. Halsted & Harmount Co. (Conn.) 48 Atl. 425.

Post v. Southern Ry. Co., (Tenn.) 52 S. W. 301.

Lewis v. Chesapeake & Ohio Ry. Co. (W. Va.) 35 S. E. 908.

Waldron v. Canadian Pacific Ry. Co. (Wash.) 60 Pac. 653.

. Baxley v. Tallahassee & Montgomery R. Co. (Ala.) 29 So. 451.

. Johnson v. Eveleth (Me.) 45 Atl. 35. But see Mann v. White River Log Etc. Cc.
46 Mich. 38, 8 N. W. 550, 41 Am. St. Rep. 141; Chesley v. Miss. Etc. Boom.
Co., 39 Minn. 83, 38 N. W. 769.

7. Magee v. Scott & Holston Lbr. Co. (Minn.) 80 N. W. 781.

Ooh

i at Mea ee

BREACH OF CONTRACTS OF SALE 193

passed to the purchaser at the time it was loaded on barges
at the mill in Canada. !

§137. General Principles Applied in Actions for
Breach of Contracts for Sale of Timber Products. A
refusal of a purchaser to accept all of a shipment of lumber
as not meeting the requirements of the contract as’ to quality,
and a return by the seller of a check for the lumber which the
purchaser was willing to take, with a request that the pur-
chaser have the lumber reloaded at the seller’s expense, was
held to effect a rescission of the original contract, and the
vendor was required to pay the cost of the reloading. ? In
an action for the balance due on a contract for the sale of
’ lumber, a counter-claim for damages because the lumber was |
not furnished in the sizes and at the time required by the con-
tract has been allowed, including the loss due to wages paid
men kept idle because of such failure.* It has been held
that a purchaser of logs may deduct from the purchase price
the amount which has been paid as stumpage because of
learning subsequent to the purchase that the logs were cut
in trespass on government land, ‘ and also that a purchaser
may refuse payment for the products purchased until liens
are released or he is given security against the lien claims. *

The buyer may also deduct from the purchase price other
charges connected with the transfer of the property, such as
for scaling and inspection as ordinarily contemplated in
such sales.® The measure of damages for a failure to de-
liver lumber in the quantity or of the quality agreed upon, ’

1. Donovan v. Standard Oil,Co. (N. Y.) 49 N. E. 678. (The court saying the nature
of the transaction and the custom of business as well as the letter of the con-
tract must be considered.)

. Wyckoff v. Swann, 62 N. Y. Suppl. 139.

. Clark v. Koerner (Ky.) 61 S. W. 30.

. Parish v. McPhee, 102 Wis. 241, 78 N. W. 421.

. Saxton v. Krein, 107 Mich. 62, 64 N. W. 868.

. Meliquhan v. Barber, 83 Wis. 500, 53 N. W. 502. See also Yellow Poplar Lbr.
Co. v. Stephens, 69 S. W. 715, 24 Ky. L.- Rep. 621; French v. Asher Lbr. Co.,
41 S. W. 261, 46 S. W. 701, 20 Ky. L. Rep. 380; Fish v. Crawford Mfg. Co.
(Mich.) 79 N. W. 793; Wemple v. Stewart, 22 Barb. (N. Y.) 154; Aitcheson v.
Cook, 37 U. C. Q. B. 490; Reid v. Robertson, 25 U. C. C. P. 568.

7. Barr v. Henderson, (La.) 30 So. 158; West v. Bechtel (Mich.) 84 N. W. 69; Hair

& Ridgeway v. Wheelihan (Minn.) 84 N. W. 638; Saxe v. Penokee Lbr. Co.
(N. Y.) 54 N. E. 14; Hamilton v. Kirby (Pa.) 49 Atl. 214; Florida Athletic Club
v. Hope Lbr. Co. (Tex. Civ. App.) 44 8S. W. 10. But see: Soutier v. Keller-
man, 18 Mo. 509 (1853). (By custom packs of shingles of certain size to be
accepted in lieu of actual count.)

amr Wb

194 THE SALE OF TIMBER PRODUCTS

or to take Iumber in accordance with a contract of pur-
chase, ! is the difference between the contract price, and the
market value at the time of the default. In accordance with
general principles questions of fact as to whether a contract
for the sale. of timber products was actually made and as
to agreements regarding scaling, inspection and other mat-
ters connected with the sale will be submitted to a jury,”
and the general rules as to the admission of evidence are
applicable to such cases. * .

$138. The Liability of a Principal for the Acts of an
Agent. A principal is bound by all acts of his agent that
are authorized, and even unauthorized acts, which are ap-
parently within the scope of the agent’s authority and which
are relied upon by a third party in good faith in determining
his course of action, may bind the principal.* -Thus it has
been held that a lumber corporation was bound by acts of
an agent that were informally authorized without a formal
resolution by the board of directors, ° and that it was not
necessary for one who had relied upon acts apparently within
the scope of an agent’s authority to prove a written authori-
zation. The subsequent ratification of an unauthorized

1. Tripp v. Forsaith Machine Co. (N. H.) 45 Atl. 746.

2. Nelson v. Mashek Lbr. Co., 95 Minn. 217, 103 N. W. 1027; St. Anthony Lbr.
Co. v. Bardwell-Rubinson Co., 60 Minn. 199, 62 N. W. 274; Erisman v. Walters.
26 Pa. St. 467; Tingley v. Fairhaven Land Co., 9 Wash. 34, 36 Pac. 1098;

3. Lbr. Co. v. Hopson (Ark.) 133 S. W. 823; Hicks v. Phillips, 146 Ky. 305, 142 8.
W. 394; Cooperage Co. v. Smith, (Ky.) 115, or 116, S. W. 828.
Helfrich Ete. Planing Mill Co. v. Everly, 32 S. W. 750, 17 Ky. L. Rep. 795;
Swindell v. Gilbert, 100 Md. 399, 60 Atl. 102; Duplanty v. Stokes, 103 Mich.
630, 61 N. W. 1015; Clarke v. Hall Etc. Lbr. Co., 41 Minn. 105, 42 N. W.
785; Tenny v. Mulvaney, 8 Ore. 513. Evidence admitted as to division ofcost
of scaling logs, Keildsen v. Wilson, 77 Mich.45; Hackley v. Headley, 45 Mich.
569; of lumber inspection, Fish v. Crawford Mfg. Co. (Mich.)79 N. W. 793;
Godkin v. Weber, 158 Mich. 515, 122 N. W. 1083. See also Lbr. Co: v. Magne-
Silica Co. (Cal.) 112 Pac. 1089; Guin v. Lbr. Co. 6 Ga. App. 484, 65 S. E.
330; Mechling v. Potter, 142 Ky. 798, 135 S. W. 266; McCoy v. Fraley
(Ky) 113 8S. W. 444; Partridge v. R. Co. 111 Me. 589, 90 Atl. 618; Mercier
v. Murchie Co. 112 Me. 72, 90 Atl. 722; Kelley v. Chemical Co., 162
Mich. 525, 127 N. W. 671; Dunlevie v. Spangenberg, 66 Misc. 354, 121 N.
Y. Suppl. 299; Coles v. Lbr. Co., 150 N. C. 183, 63 8S. E. 736; Richardson v.
Baker, 83 Vt. 204, 75 Atl. 151; Logging Co. v. Lbr. Co. 78 Wash. 568, 139
Pac. 625; Manley v. Lbr. Co., 140 Wis. 381, 122 N. W. 1057; Williams v.
Lbr. Co., 167 Fed. 84, 92 C. C. A. 536; Rex v. Gilbert, 28 Can. S. Ct. 388,
Stubbs v. Johnson, 38 U. C. Q. B. 466.

4. Witcher v. McPhee, (Colo.) 65 Pac. 806; Kruse v Seiffert & Weise Lbr. Co.
(iowa) 79 N. W. 118; Blood v. Herring, (Ky.) 61 S. W. 273.

5. Kentucky Land and Immigration Co. v Wallace, (Ky.) 55 S. W. 885, (Vice-presi-
dent bound company); Flaherty v Atlantic Lbr. Co. (N. J.) 44 Afl. 186.

6. Columbia Land & Mining Co. v Tinsley, (Ky.) 60 S. W. 10.

PRINCIPAL AND AGENT 195

act of an agent,! or the appropriation, with an _ under-
standing of the facts, of funds that have come into the hands
of an agent without authority will bind the a principal. ?

However, acts of an agent that are not in the regular
course of employment and not such as may fairly be pre-
sumed to have been authorized by the principal will not
bind the latter * and one is not bound simply because some
person believed a third party to be his agent. It is the duty
of the one dealing with a supposed agent to ascertain the
extent of the agency and, unless the grounds upon which his
belief in the agency rests are such as would satisfy a man
of ordinary prudence, he will deal with the supposed agent
at his own risk. * It has been held that an agent in charge
of a retail lumber yard was not authorized to sign a bond
as security for the performance of work by a contractor
though it was clear that the purpose of such action was to
effect a sale of materials to the contractor ° and that state-
ments of an agent for a corporation that the company for
which he was buying was a partnership, did not bind the
members of the corporation as partners,® the decision
resting on the ground that the only principal the agent had
was a corporation and not individuals.

The interest of an agent in lumber received for sale on
commission has been held not to be subject to attachment by
a creditor; ’ and, in a suit against an insurance broker for
failure to use due diligence in placing insurance upon
lumber, it has been held that the burden of proving negli-
gence rested upon the owner of the lumber but that evidence
as to the hazardous nature of lumber insurance was ad-
missible as having a bearing upon the question of a reason-
able time for the placing of the risk. *

. Hunter v Cobe, (Minn.) 87 N. W. 612.

. Payne v Hackney, (Minn.) 87 N. W. 608.

Ayer & Lord Tie Co. v Davenport, (Ky,) 82 8S. W. 177, 26 Ky. L. Rep. 115.

. Rosendorf v Poling, (W. Va.) 37 S. E. 555;

. Bullard v DeGroff, (Neb.) 82 N. W. 4.

MeDonald v Cole,. CW.. Va.) 32'S. E.. 1033.

. Hampton & Branchville R. R. & Lbr. Co. v Sizer, 64 N. Y. Suppl. 553.

. Backus v. Ames, (Minn.) 81 N.W. 766; See Hartford Fire Ins. Co. v. Post (Tex.)
62 S. W. 140.

“TO OR ON

o

CHAPTER XIII

THE INSPECTION AND MEASUREMENT OF TIM-
BER PRODUCTS

§139. Development of Legislative Regulation of In-
spection and Measurement. As early as March 29,
1626, the shipment of timber from the Plymouth Colony
without the approval of the governor and council was for-
bidden. ! This order, as well as several of similar character
in other New England colonies, was evidently aimed pri-
marily at a conservation of the timber supply. The neces-
sity of an official inspection of timber products to insure a
satisfactory quality in exportations was first experienced
in connection with the shipment of staves to the West Indies
and the Madeira Islands. A Connecticut order of Septem-
ber 10, 1640, required an official inspection of all staves in-
tended for shipment to a foreign market.? As an export
trade developed, various provisions as to inspection were
enacted in different colonies. The inspection of staves was
provided for in Connecticut, Massachusetts, New Hamp-
shire, New Jersey, Pennsylvania, Virginia, North Carolina,
' and New York, in the order named.* The standard cord
of wood was established by legal enactment in nearly, if not
all, American colonies previous to the adoption of the Fed-
eral constitution, ‘ and subsequent to the institution of the
National government numerous acts regarding the measure-
ment of firewood and the selection of official wood corders
were passed both in the original states and in those later

. Compact, Charter & Laws, Colony of Plymouth, Boston, 1836, p. 28.

. Colonial Records of Connecticut, Hartford, 1850, Vol. 1, p. 60.

. Conn., 1640; Mass., 1641; N. H., 1687; N. J., 1694; Pa., 1700; Va., 1752; N. C.
1770; N. Y., 1788.

4. Mass., 1647; N. Y., 1684; R. I., 1698; N. H., 1714 (earlier as a part of Mass.);

8S. C., 1738; Del., 1741; Ga., 1766; N. C., 1784.

‘

© tS

196

LEGISLATIVE DEVELOPMENT 197

admitted to the Union.! Previous to the establishment of
the Federal government legislation regarding the inspection
of lumber had been enacted in all American Colonies except
Delaware, Maryland, South Carolina and Georgia.? The
inspection of shingles early claimed the attention of the
colonial legislatures, *® and an inspection of hoops, heading
and shooks was provided for in a few colonies. 4

The very early laws regarding the quality of staves and
many of the later ones fixing specifications for lumber,
shingles, hoops, heading and staves were apparently di-
rected principally to the end of maintaining in foreign mar-
kets a satisfactory reputation for the timber products of the
colonies in which the laws were enacted. However, even in
some of the earlier acts, there are indications that grave
abuses in domestic commerce and purely local transactions
had foreed legislative regulation of the timber industry. The
later acts prescribed with considerable detail the specifica-
tions of the different products and grades. Many statutes
indicated a determined purpose to assure the election or
appointment of thoroughly capable and trustworthy in-
spectors. °

Subsequent to the establishment of the Federal Union
statutes regulating the inspection and measurement of tim-
ber products were enacted in many states. The earlier
state laws, like those passed previous to March 4, 1789, re-
lated to finished products, but as the lumber industry de-
veloped and the practice of driving logs in the streams be-
came extensive, a special need arose for a standard measure-
ment of logs. The situation was partly met by legislative

1. N. H. Acts Feb. 8, and June 15, 1791.

Md. Act. Dec. 22, 1792; ch. 19, 1794.

Del. Act Feb. 9, 1796; act June 26, 1829.

Pa. Mcths: Leb: 13, 1802: Mari 10; 1817.

a. Act Feb. 19, 1816.

Me. Acts: Mar. 8, 18217 Feb. 25, 1825> Apr. 1; 1836* Apr. 16,. 1841, sec. 7.

Mite Act Nov. 10, 1824.

Cf: Inspection Ground Oak Bark, Pa., 1804; Md. 1840; N. Y. 18-t0.

Miass-.. 1 Goose Conn. 1667, N, Ho: L6833-R. L.. 17316 Pa. £7592 N.C. £7707 NN;

DUT ES Vas LISGSON: NV <5 LESS:

Sr Niass 1605 aiken tes Mots tect L738 Vann 17522 INO. 17705 IN. J, Tit 2:
Hi. 17852 Conn., 1786: N> ¥Y., 1788.

Ae. Mass 17435. ot, dios ON. Ls, L785:

5. See discussion of such laws in Forest Legislation in America Prior to March 4,
1789; Kinney, pp. 381 to 387 (published as Bulletin No. 370, Cornell Uni-
versity Agr. Exp. Station, January, 1916.)

to

4A

198

provision

‘INSPECTION AND MEASUREMENT

for the selection of official scalers, upon whose

uniformity of judgment reliance was placed for a standard-
ization of measurement, and partly by the adoption of certain
scaling rules as legal standards. 1

Laws of this nature are now in force in many states. ?

Only the earlier acts are here cited.

Wash.
W.Va.
Wis.
2. Ark.
Cal.
Del.

Fla.
Ga.

Idaho

Act. Dec. 17, 1819; See Digest Laws of Ala., 1823, Toulmin, p. 859.

Act. Mar. 17, 1883, Laws of Ark., 1883, p. 140, Act No. 83 (Logs)

Act Mar. 28, 1878, and Mar. 30, 1878; Laws 1878, p. 604, p. 779. Cf. Act
April 16, 1880, S. L. p. 119.

. Act. Dec. 1790, Stats. Conn., Hartford, 1808, p. 397, sec. 21-24.

Act Mar. 9, 1869, Laws of Del., Vol. 13, ch. 453; See also Rev. Laws of
Del., 1874, p. 367.

Act Nov. 21, 1828; see acts Fla. Terr. prior to 1840, Tallahassee, 1839,
Duvall, p. 249.

Acts of Dec. 16, 1794, and Dec. 5, 1799, Laws of Ga., Vol. 1, pp. 345 and
346; Digest, Prince, 1822, p. 483.

Act Mar. 10, 1903, S. L., p. 90.

Act Jan. 15, 1855, Laws of Iowa, 1854-5, p. 39, ch. 26.

Act Mar. 16, 1821, Laws Me., Brunswick, 1821, Vol. 2, p. 674; Gen'l Laws
Portland, 1834, Vol. 2, p. 791, ch. 158.

Act Dec. 27, 1811; see Laws of Md., Annapolis, 1818, Vol. 4, ch. 70; act
Feb. 9, 1818; Vol. 5, ch. 141.

. Act Feb. 13, 1822, Gen. L. Boston, 1823, Vol. 2, p. 566, ch. 73.
. Acts June 9, 1819, and Sept. 11, 1819, Laws ba Mich., Lansing, 1874;

Vol. 2, pp. 156 and 163.

. Act Aug. 9, 1858; Gen. Stat. 1849-58, p. 828.

Act June 11, 1822. See Miss. Code, Jackson, 1848, Hutchinson, p. 283,
Act. Mar. 5, 1880, S. L., p. 176. (Logs).
Act Mar. 3, 1866, S. L., p.-198, ch. 99.

. Act June 29, 1819, Laws of N. H., after 1815, Concord, 1824, Vol. 2, p. 43.

Cf. Rev. St. Concord, 1843, p. 207, ch. 106.

. Act Mar. 29, 1790, ch. 33, Laws N. Y., Greenleaf, 2d Ed., N. Y. 1798, Vol.

2, p. 315.

. Laws 1789, ch. 303; Laws 1791, ch. 345, 349.

Act Mar. 3, 1842 (Acts of Ohio, Vol. 40, p. 31; Feb. 9, 1846; Vol. 44, p. 35.)

Act Oct. 25, 1880, Laws of Ore., 1880, p. 16 (Coos Co.); Laws of 1895, p.
40 (Lane Co.)

Act Sept. 29, 1789; see L. of C. Pa., Phila. 1810, V. 2, p. 504, ch. 1440.

Rev. Laws R. I., Providence, 1798, p. 522 (Lumber and shingles); p. 617
(cordwood and charcoal).

Act Dec. 19, 1827, Stat. of S. C., Columbia, 1839, Vol. 6, p. 320. Act Dec.
20, 1853, Vol. 12, p. 294.

Rey. Stat. Burlington, 1840, p. 360, sec. 57-61. Act Nov. 16, 1869, Laws
of 1869, p. 52. (Log measure.)

Act Feb. 21, 1818, Rev. Laws of Va., Richmond, 1819, Vol. 2, p. 197, ch.
227; Act Apr. 2, 1831, Laws of 1830-31, p. 109, ch. 42. Laws 1857-8, p.
105.

Act Nov. 11, 1879, L. of 1879, p. 107; act Nov. 26, 1883, L. 1883, p. 106.

Act Feb. 24, 1883, Laws 1883, p. 97, ch. 66.

Act Mar. 28, 1854, S. L., p. 284. Ch. 198.

Digest of Stat., Kirby, 1904, sec. 4075-4107, 8009 (Act Apr. 27, 1901)

Gen’'l Laws, 1914, H. & D. p. 927.

Rev. St. of 1852, as amd. to 1893, p. 546 (Act Mar. 9, 1869) (Vol. 13 ch.
453, Special to town of Laurel).

Comp. L. 1914, sec. 1244-1255, 3710-11.

Annotated Pol. Code, 1914, Park, Sec. 1834-8 and 1843.(Town) Anno-
tated Penal Code, sec. 614-617, 646-649, and 728.

Rev. Civil Code, 1908, sec. 1494-1505 (act Mar. 10, 1903).

(Footnote 2 continued on next page)

—ew

LEGAL STANDARDS 199

However, the tendency subsequent to the middle of the
nineteenth century has been to leave the matter of timber
and lumber inspection to the authorities of the political sub-
divisions of the state or to commercial associations.

§140. Legal Standards of Timber Measurement.
A board one inch thick and having a superficial area of 144
square inches has quite generally been used in all American
States, either with | or without express legal sanction, as the
standard unit for the measurement of lumber, but there have
been special provisions for the measurement of sawn or hewn
timbers. There have beena great number of different log
measure rules in use, and about a half dozen distinct rules
have been adopted as the legal standards in different states.
Thus in Arkansas, Florida, Louisiana, and Mississippi, the
Doyle rule; * in Idaho, Minnesota, Nevada, West Virginia,

(Footnote 2 concluded from preceding page)

Ill. Annotated Statutes, 1913, par. 1334 (54), p. 947 (Cities to regulate. )
Iowa Annotated Code, 1897, sec. 3030-3036 (By counties.)
Md. Annotated Cade, 1911, Bagby, Art. 98, Sec. 11, p. 2195.

Mass. Rev. Laws, 1902, ch. 60, p. 578-581 (Sees. 9-14 give specifications. )
Nie. Rey. Stat. 1903, p. 418-421, ch. 42. (By towns)
Mich. Annotated Stat. 1913, Howell, 2d Id., par. 7309 and 7316 (By commercial
associations.) See Act May 28, 1879, S. L. p. 218.
Minn. Gen’l Stat. 1913, Tiffany, sec. 5453-5479, ch. 43.
Miss. Civil Code, 1906, Sec. 5972.
Mo. Annotated Stat., 1906. Cf. see. 10577.
N. H. Puh. Statutes, 1901, Chase, Chap, 128 p, 403-406.
N.C. Revised Laws, 1908, Pell, sees. 4636, 4660-4668 (certain counties. )
N. D. Comp. L. 1913, sec. 3599, item 39 (Cities may regulate.)
Obio Gen’l Cede, 1910, sec. 5987 and 6040.
Ore. Laws 1910, Lord, sec. 5073-5076.
Pa. Purdon’s Digest, 1903, Rev. by Stewart, p. 2356, sec. 57 and 58.
Ret.” General Laws, 1909. pp. 557-563. ch. 161, 162, 175.
S.C. Code 1912, sec. 2414-2419.
Vt. Public Statutes, 1906, sec. 3427, 351-4, 4916, 6261. (By towns, see act Nov.
16, 1869, L. of 1869, p. 52.)
Va. Code of 1904, secs. 1844, 1847, 1859, 1872, 1876, 1878-9, 1883, 1888.
Wash. Codes & Stats., 1910, Rem. & Bal., sec. 7070-7079; Cf. 7080-7090.
Wis. Statutes 1913, sec. 1730-1747, ch. S84.
1S: CC. Act Dec: 20, 1853; Stats, Vol: 12, p. 294,
Mo; Act Nov. 27, 1855, Rev. St. Mo:, 1855, p: 1565, ch: 166:
2 Gar Act Dec. 5, 1799, Vol. 1, p. 346 (Princo’s Digest 1822, p. 483).
S.C. Act 1855, Stats. Vol. 12, p. 434.
3. Digest of Statutes of Arkansas, 1904, Kirby, sec. 4084 and S009 (From Act of May
23, 1901. Cf. Act 1883, making Scribner’s the standard.)
Compiled Laws of Florida, 1914, sec. 3710 (Act May 31, 1889; Act 3898, Laws of
1889.)
Revised Laws of Louisiana, 1908, Wolff, Vol. 3, p. 927 (from Act 147 of 1900).
Cf. Act 64 of 1898, Rev. L. 1904, Wolff, p. 1836.
Annotated Code of Mississippi, 1906, sec. 5072 (from Act Mar. 5, 1880, S. L., p.
176.

200 INSPECTION AND MEASUREMENT

Wisconsin and a part of Oregon, the Scribner rule; 1 in Cali-
fornia, the Spaulding rule;? in New Hampshire, the Blodgett
rule; * in Washington, the Drew rule, ‘ and in Vermont, the
Humphrey rule,*isthestandard. Someofthe statutes make
measurement by any other rule than the standard illegal; ®
others specifically provide that measurement by another
rule may be made by agreement of the parties, ’ while other
statutes establish a standard but do not specifically forbid
or authorize the use of a different rule. ® It has been held
that a law which did not expressly prohibit or authorize the
use of any other rule than the standard was to be applied
only to those transactions in which there was no agreement
as to the rule to be used. °

The ordinary log rule, whether prepared by mathematical
calculations or from experimental data, is intended to give
the amount of lumber which a log of any particular di-
mension will saw out. ?° Some statutes have relied upon
the general knowledge of the rule named as a sufficient
identification of the standard adopted, " while others have
either given the mathematical formula upon which the
adopted rule is based, ” or have set out in detail the scale
for logs of different dimensions. *

§141. Custom often Controls. In recognition of
custom some laws have expressly provided that lumber of

1. Revised Civil Code of Ldaho, 1908, sec. 1501.
General Statutes, Minnesota, 1913, Tiffany, sec. 5460 (Act of Aug. 9, 1858, Stat.
1849-58, p. 828.
Revised Laws of Nevada, 1912, sec. 1440, note. Act Mar. 3, 1866, Laws of ‘66, p.
198.
Code of W. Va., 1913, Hogg, sec. 3412 (Act Feb. 24, 1883, Laws of 1883, p. 97,
ch. 66.)
Wisconsin Statutes, 1913, sec. 1737.
Laws of Oregon, 1910, Lord, sec. 5076.
2. General Laws of California, 1914, Henning & Deering, p. 927 (Laws of 1877-73,
p. 604, as amended by Laws of 1880, p. 119.)
3. Public Statutes of N. H., 1901, Chase, ch. 128, sec. 5, p. 404.
4. Codes & Statutes of Washington, 1910, Remington & Ballinger, sec. 7074.
5. Public Statutes of Vermont, 1906, Lord & Darling, sec. 4810; see sec. 4916, act
Nov. 26, 1884, L. of 1884, p. 83, No. 90.
6. Arkansas; Washington. Cf. Mississippi (illegal if it gives less number of feet than
Doyle). See Bellew v. Williams, (Miss.) 67 So. 849.
7. Florida, ldaho, Louisiana, New Hampshire, Oregon, West Virginia, Wisconsin.
8. California, Nevada, Minnesota, Vermont.
9. Peter v. Cypress Co. (La.) 69 So. 840; See Johnson v. Burns, 39 W. Va., 658, 20
S. E. 686. ;
10. See Smith v. Aiken, 75 Ala. 209.
11. Arkansas, Florida, idaho, Minnesota, West Virginia.
12. Louisiana, New Hampshire, Vermont.
13. California, Wisconsin.

CUSTOM OFTEN CONTROLS 201

less than one inch in thickness might be considered stand-
ard, ! while others have discouraged commercial customs
which allowed a short count or measure, or required an ex-
cess. 2 The rejection of the fractions of a foot in measuring
has been held legal where such mode of measurement was
the established custom. * <A contract containing a_refer-
ence to the number of ‘thousand feet in each raft’’ has been
held to call for linear measure, ? and one requiring delivery
of lumber by the “‘thousand feet’? to contemplate measure-
ment by a board rule and not by a log scale. °

If a contract does not fix the mode of measurement and
there is no statute, the measurement should be made by the
customary standard, ® and if the contract contemplates
delivery of a product for a certain market, the customary
standard of that market should be used.7 Where a con-
tract provides for the method of scaling to be used, the
parties will be bound by the scale made in accordance with
that method as customarily applied, even though it be clear
that the said method does not give a fair test of the actual
board contents of a log, and it be shown that a fairer method
is in common use; * and unless the contract clearly provides
for the use of a different rule, the standard rule of the state
will be enforced irrespective of its faults. °

1. Act Mar. 16, 1784, Laws of Com. Mass. 1780-1807, Vol. 1, p. 164, Gen. Laws of
Mass:, VOL. 14.p/136, ch, 54.

2. Conn. Act of 1832, Stats. of Conn., New Haven, 1854, p. 624, sec. 15.

Me. Feb. 25, 1828, Laws Me., Portland, 1831, Vol. 3, p. 255, ch. 404.
Md. Code of 1860, p. 700, ch. 96, Sec. 22.
See Purdon’s Digest of Laws of Penn., 1903, 13th Id. Stewart, p. 2356, see. 57.

. McGraw v. Sturgeon, 29 Mich. 426; Merrick v. McNally, 26 Mich. 374.

. Brown v. Brooks, 25 Pa. St. 210.

. Duteh v. Anderson, 75 Ind. 35; but see Hopkins v. Sanford, 41 Mich. 243.2 N. W.
30. Cf. Farmer's High School v. Potter, 43 Pa. 134, holding that in view of
state act of Apr. 15, 1835 (P. L. 1835, p. 384) adopting board foot as standard,
contract for sale of flooring one and one-quarter in. thick by thousand called
for payment for the additional thickness.

6. Sanderson v. Hogan, 7 Fla. 318; Strickland v. Richardson, 135 Ga. 5138, 69S, E.

871; Dam etc. Co. v. Clothing Co. 102 Me. 257; 66 Atl. 537: Heald v. Cooper,
8 Me. 32; Boyce v. Boyce, 124 Mich. 696, 83. N. W. 1013; Hale v. Handy, 26
N. H. 206; McKinney v. Matthews, 166 N. C. 576, 82S. E. 1036; Richardson
Vv. Baker, 83: Vt. 204, 75 Atl.. 151; McIntyre v: Rodgers, 92 Wis. 5, 65 N. W.
503; Mann v. Paper Co. 41 N. B. 199 (Pulpwood).

7. Merick v. McNally, 26 Mich. 374; See Peterson v. Anderson, 44 Mich. 441; Smith
v. Kelly, 43 Mich. 396; Dunlevie v. Spangenberg, 66 Misc. 354, 121 N. Y.
Suppl. 299 (Rule of place of purchase prevails. )

8. Heald v. Cooper, 8 Me. 32; Boyle v. Musser-Sauntry Land Etc. Co., 86 Minn. 160,
90 N. W. 319; Hunter v. Felton, 61 Vt. 359; Mcllquham v. Barber, 83 Wis. 500,
53 N. W. 902; Fornette v. Carmichael, 41 Wis. 200. See Baldwin v. Cornelius,
104 Wis. 68.

9. Fortescue v. Black Bayou Lbr. Co., 118 La. 725, 43 So. 387; Bulkley v. White
& Wheeless, 113 La. 396.

or de ww

202 INSPECTION AND MEASUREMENT

The standard in general use at the time of the scaling has
been given the preference over a standard customarily used
at the time the contract was made; ! and it has been held
that even though a contract contemplated payment in ac-
cordance with a mill scale of the lumber sawn, the seller
could recover compensation on the basis of the amount of
logs delivered if the logs were not sawn within a reasonable
time after such delivery. ? Itis sometimes incumbent upon
the seller to prove a scale or survey of the logs before he can
recover the purchase price, * and a party who has failed
to perform his part as to a scale will not be permitted to take
advantage of such failure. 4

§142. A Measurement may be Conclusive. Unless pro-
vision is made in a contract- for a rescaling in case of dis-
satisfaction by one of the parties, ° the scale made in the
manner or by the person contemplated by the contract will
be enforced as final unless fraud or substantial mistake to the
prejudice of one party is shown.® Errors of judgment on
the part of a scaler will not disturb the conclusiveness of the

1. Hackley v. Headley, 45 Mich. 569, 8 N. W. 511.
2. Rowe v. Chicago Lbr. Etc. Co., 50 La. Ann. 1258, 24 So. 235.
3. Patterson v. Larsen, 36 N. Brunsw. 4; But see Peterson v. South Shore Lbr. Co.
105 Wis. 106, 81 N. W. 141.
4. Gaslin v. Pinney, 24 Minn. 322; Grice v. Noble, 59 Mich. 515, 26 N. W. 688; Lbr.
Co. v. Coach, (Ore.) 146 Pac. 973; Rich v. Lbr. Co., 18 B. C. 543.
5. Kennedy v. South Shore Lbr. Co., 102 Wis. 284, 78 N. W. 567.
6. Ala. Ackley v. Lbr. Co., 166 Ala. 295, 51 So. 964.
Cal. Bullock v. Consumers Lbr. Co. (1892) 31 Pac. 367.
Fla. Shippers Assoc. v. Lbr. Co., 65 Fla. 313, 61 So. 639.
Ky. Collins v. Lbr. Co., 158 Ky. 231, 164 8S. W. 813.
Me. Hutchins v. Merrill, 84 Atl. 412; Bank v. Hollingsworth Etc. Co., 106 Me.
326, 76 Atl. 880; Atwood v. Hub Etc. Co., 103 Me. 394, 69 Atl. 622;
Nadeau v. Pingree, 92 Me. 196, 42 Atl. 353; Ames v. Vose, 71 Me. 17;
Bailey v. Blanchard, 62 Me. 168; Berry v. Reed, 53 Me. 487; Robinson
v. Fiske, 25 Me. 401; Oakes v. Moore, 24 Me. 214; 41 Am. Dec. 379.
Mich. Brooks v. Bellows, 179 Mich. 421, 146 N. W. 311; Navigation Co. v. Salt
Etc. Co., 174 Mich. 1, 140 N. W. 565; Navigation Co. v. Filer, 151 N. W.
1025; Robinson v. -Ward, 141 Mich. 1, 104 N. W. 373; Sullivan v. Ross,
124 Mich. 287, 82 N. W. 1071; Bresnahan v. Ross, 103 Mich. 483; Ma-

lone v. Gates, 87 Mich.°332, 49 N. W. 638; Busch v. Kilborne, 40 Mich.> -

297.

Minn. Boyle v. Musser-Sauntry Lumber &c. Co., 77 Minn. 206, 79 N. W. 659;
State v. Lumbermens’ Board of Exchange, 33 Minn. 471; Leighton v
Grant, 20 Minn. 345.

Mo. Strother v. McMullen Lbr. Co., 110 Mo. App. 552, 85 S. W. 650.

N. H. Hale v. Handy, 26 N. H. 206.

Tex. Cudlipyfv. Export Co. (Civ. App.) 149 8S. W. 444.

Wis. Peterson v. South Shore Lbr. Co., 105 Wis. 106, 81 N. W. 141; Early v.
Chippewa Logging Co., 68 Wis. 112; Scott v. Whitney, 41 Wis. 504

: See Thiel v. Lbr. Co., 137 Wis. 272, 118 N. W. 802.
U.S. Lbr. Co. v. Stone, 212 Fed. 713, 129 C. C. A. 32s.
Can. Patterson v. Larsen, 37 N. Brunsw. 28.

A MEASUREMENT MAY BE CONCLUSIVE 203

scale if no intentional misrepresentation, mistake as to logs
to be sealed, or error in computation is proven.! However,
the terms of the ecntract may provide that the decision of
the sealer shall not be conclusive as to certain matters; ?
and to be accepted by the courts as final a scale must have
been made in strict accordance with the terms of the con-
tract, * In the construction of the contract due regard will
be given to the customs of the locality as to those matters
in which the terms of the contract are not explicit. * Though
a scale report be conclusive as to the part of a lot of logs
actually scaled, it will not be final as to any logs that were
estimated by the same scaler but not actually scaled. °
If a substantial mistake has been made the courts will cor-
rect the scale even though settlement has been made ac-
eording to the erroneous seale.® A mutual agreement
that a rescale of logs or a remeasurement of lumber shall be
made as a basis for payment affords a sufficient considera-
tion to support a new contract.” Whether the rule of
caveat emptor as to quantity obtains in a sale of a lot of
sealed logs, or whether there is an implied warranty by the
seller as to quantity will depend upon the terms and con-
ditions of the particular contract of sale. °

§143. Official Inspection and Measurement. In
jurisdictions where provision is made by law for the sealing
of logs or the measurement of lumber by officials whose
scale bills or inspection reports are made prima facie legal

1. Malone v. Gates, 87 Mich. 332, 49 N. W. 638.
But see Southern Lbr. Co. v. Asher, 64S. W. 462, 23 Ky. L. Rep. 901; Robinson v.
Fiske, 25 Me. 401; Ortman v. Green, 26 Mich. 209; Nelson v. Chas. Betcher Lbr.
Co., 88 Minn. 517, 983 N. W. 661. Holding scale subject to correction without
showing of fraud or bad faith, if no provision in contract that scale be conclusive.
2. Magee v. Smith, 101 Wis. 511, 78 N. W. 167.
3. Chase v. Bradley, 17 Me. 89; Eakright v. Torrent, 105 Mich. 294, 63 N. W. 293:
Jesmer v. Rines, 37 Minn. 477, 35 N. W. 180; McIntyre v. Rodgers, 92 Wis. 5,
65 N. W. 503; See Bezer v. Soper Lbr. Co. 76 Wis. 145; Fornette v. Carmi-
chael, 41 Wis. 200.
4. Gordon v. Cleveland Sawmill Ete. Co., 123 Mich. 430, 82 N. W. 230. Leonard v.

5. Douglas v. Leighton, 53 Minn. 176, 54 N. W. 1053, Pratt v. Ducey, 38 Minn.
517; McAndrews. v. Santee, 57 Barb. (N. Y.) 198, 7 Abb. Prac. N.S. 408;
Vaughan v. Howe, 20 Wis. 497.

6. Horton v. Harbridge, 127 Pa. St. 11.

7. Porteus v. Commonwealth Lumber Co., 80 Minn. 234, 83 N. W. 143. See Yellow
Poplar Lbr. Co. v. Stephens, 69 S. W. 715, 24 Ky. L. Rep. 621; Hunter v. Felton,
61 Vt. 359).17 Ath, 739.

8. Wonderly v. Holmes Lbr. Co., 56 Mich. 412, 23 N. W. 79; Ortman v. Green,’ 26
Mich. 209; Day v. Gumaer, 80 Wis. 362, 50 N. W. 182; Gardner v. Wilber,'75
Wis. 601, 44 N. W. 628,

204 INSPECTION AND MEASUREMENT

evidence as to the amount or quality of the timber measured
or inspected, a recovery of the purchase price cannot be en-
forced if the measurement or inspection has not been made
by an authorized official as required by the law.! However,
the courts will refuse assistance only when it is clear that the
sale was within the restrictions of the statute.? Such
statutes will not be recognized outside the boundaries of the
state, county or city to which they apply, * and they have
usually been construed as intended merely for the protection
of the purchaser and therefore as not restricting the freedom
of the parties to a contract to waive compliance with the
statute and provide for a scale or measurement by another
than the regular official. In a number of states there are
statutes regarding the inspection of shingles,® naval
stores ® and other minor timber products,’ and in many

1. Knight v. Burnham, 90 Me. 294, 38 Atl. 168; Richmond v. Foss, 77 Me. 590, 1 Atl.
830.

See also Durgin v, Dyer, 68 Me. 143; Coombs v. Emery, 14 Me. 404 (cordwood);
Androscoggin R. Side Booms v. Haskell, 7 Me. 474; Wheeler v. Russell, 17 Mass
258; Colton v. King, 2 Allen, (Mass.) 317 (cordwood); Pray v. Burbank, 10
N. H. 377; Crawford v. Cockran, 2 Wash. Ter. 117; Lindsay Etc. Co. v. Mullen,
176 U. S. 126; Hospes v. O’Brien, 24 Fed. 145.

2. Thomas v. Conant, (Me. 1886) 5 Atl. 533; Gilman v. Perkins, 32 Me. 320; Whit-
man v. Freese, 23 Me. 185; Howe v. Norris, 12 Allen (Mass.) 82; State v. Ad-
dington, 121 N. C. 538, 27 S. E. 988. See also Huntington v. Knox, 7 Cush.
(Mass.) 371; Tewksbury v. Schulenberg, 41 Wis. 584.

3. Hardy v. Potter, 10 Gray (Mass.) 89; See Blitz v. James, 31 Md. 264; Shoemaker
v. Lansing, 17 Wend. (N. Y.) 327.

4. McNeil v. Chadbourn, 79 N. C. 149; See State v. Lumbermen’s B’d of Exch., 33
Minn. 471, 23 N. W. 838.

5. lowa Annotated Code, 1897, sec. 3030-3033 (county).

Kan. Gen’l St., 1909, Dassler (Salvage for taking up), sec. 7373-76.

N.H. Pub. St. 1901, Chase, p. 404, sec. 7 and 8.

N. C. Pell’s Revisal 1908, sec. 4659, 4664-65. (4665, no inspector to deal in.)

Ohio Annotated Stat. 1910, Page & Adams, sec. 6040.

Pa. Purdon’s Digest, 13th Ed., Stewart, p. 5081, sec. 83 and 84.

S.C. Code 1912, sec. 2413.

Vt. Public Statutes, 1906, sec. 3427, 3514.

6. Fla. Comp. Laws 1914, sec. 3131-3141 and 3801-3808.

Ga. Political Code, 1914, Park. Sec. 1832-33, and 1839-41.

N.C. Pell’s Revisal, 1908, sec. 4655, 4658 and 4666.

S.C. Code, 1912, sec. 2398-2407.

Va. Annotated Code, 1904. Sec. 1844, 1857, 1866, 1878, 1879 and 1883.

7. Conn. Gen. Stat. 1902, Sec. 4881 (Bushel defined for charcoal)

Del. Rey. Code, 1915, Sec. 2930 (Bushel defined for charcoal)

Ga. Annotated Code, 1914, Park, sec. 1843 (heading).

Mass. Revised Laws, 1902, p. 563-564 (hoops and staves), p. 570 (charcoal)

Md. Annot. Code, 1911, Art. 97, Sec. 24 (charcoal); Art 98, Sec. 11 (wood)

Minn. General Statutes, 1913, Tiffany, sec. 5462 (posts and poles)

N.H. Public Statutes, 1901, Chase, p. 404, sec. 9 (Clapboards and hoops,)

Pa. Purdon’s Digest, 13th Ed., Stewart, p. 5076, sec. 29 (bark), sec. 30

(charcoal).
I. General Laws, 1909, p. 562-63 (hoops); p. 582, (charcoal).
C. Code 1912, sec. 2413 (staves).

- th el

OFFICIAL INSPECTION 205

states provision is made for the official measurement of cord

wood. !

. Until a satisfactory showing to the contrary is made those
assuming to act as official inspectors will be presumed to
have been properly elected or appointed.” They regularly
hold office until their successors have been appointed, taken
the oath of office and complied with the other requirements
of the law as to qualification. * A public surveyor is liable
on his bond only for the faithful performance of his duty and
not for errors of judgment or inaccuracies in the scale or
measurement.* These statutes ordinarily. forbid an official
sealer from engaging in the buying and selling of logs, lumber,
naval stores, or whatever timber product is covered by his
authority, but it has been held that this prohibition applies
only to transactions within the district in which he is the
official sealer or inspector.*> Double fees for the scaling
of logs cannot be collected. °

§144. Kinds of Evidence Admissible. If a written
contract for the sale of logs is silent as to the manner of
sealing, parol evidence may be offered to prove an agree-
ment as to the scaler or the method of scaling, 7 and in the

1. Ariz. Civil Code, 1913, sec. 5536.
Conn. General Statutes, 1902, sec. 1891 (town).
Del. Rev. Code, 1852, am’d to 1893, p. 395 (town). Rev. Laws, 1915, Sec.
3443.
Ga. Annotated Code, 1914, Park, sec. 1843.
Ind. Annotated Statutes, 1914, Burn’s. Sec. 8655 (cities to regulate).
Kan. General Statutes, 1909, Dassler, sec. 1279, 1402, 1580 (city regulation)
Me. Rev. St. 1903, Ch. 42 (wood bark, and charcoal)
Mass. Revised Laws, 1902, p. 568-570.
Minn. General Statutes, 1913, Tiffany, sec. 5795.
Neb. Revised Statutes, 1913, sec. 4098 (In Omaha).
N. H. Public Statutes, 1901, p. 394, sec. 14-16.
N.C. Pell’s Revisal, 1908, sec. 4667-68.
Ohio Annotated Code, 1910, Page & Adams, sec. 3651,. 6409 (Cities to regulate).
Pa. Purdon’s Digest, 1909, 13th Ed., Stewart, p. 5082, sec. 95-97 (Phila).
p. 3001, sec. 1046-1049; p. 495, sec. 97 is general in boroughs.
RT, General Statutes, 1909, p. 582-583. ch. 175.
Vt. Public Statutes, 1906, sec. 3427, 3514 and 6161.
Va. Code, Biennial, 1912, Pollard, p. 110, Sec. 1913.
Wis. Statutes 1915, Secs. 925-52, Par. 45 (cities to regulate.)
. McCutchin v. Platt, 22 Wis. 561.
. Dow v. Bullock, 13 Gray (Mass.) 136; As to fees see Bennett v. Boom Corp.
115 Minn. 96, 131, N. W. 1059.
4. Hutchins v. Merrill, (Me.) 84 Atl. 412; Gates v. Young, 82 Wis. 272, 52 N. W. 178.
5. McKenzie v. Lego, 98 Wis. 364, 74 N. W. 249; See Buie v. Browne, 6 Ired. L.
(28 N. Car.) 404. .
6. Lovejoy v. Itasca Lbr. Co., 46 Minn. 216, 48 N. W. 911.
7. Mason v. Phelps, 48 Mich. 126, 11 N. W. 413,837; Johnson v. Burns, 39 W. Va.,
658; McDowell v. Leav., 35 Wis. 171. Cf. Lbr. Co. v. Crist, 87 Ark., 434, 112
S. W. 965

web

206 INSPECTION AND MEASUREMENT

absence of proof of a special agreement, it will be assumed
that the parties contemplated a scale in accordance with the
custom of that locality,! or by the regularly appointed
official. ? And even where the written contract specifies
the sealer or method of sealing, evidence is admissible to
show a subsequent mutual agreement that the sealing
should be done by another party or by another method. *
If the sealer named in the contract, or otherwise mutually
agreed upon is dead, his scale will be presumed to be honest
and accurate and oral evidence as to what he did and said
at the time of the scaling will be admissible. +

Although the scale of logs or lumber by a sworn officer
is prima facie correct, ® and a properly identified scale bill
is admissible as evidence, * without the presence of the
sealer on the stand as a witness, 7 even when not certified
as required by statute, * evidence is admissible to show
negligence, ° mistake, }° incompetency ™ or fraud. * Proof
of gross mistake is not conclusive evidence of fraud.” If
the scale was made by an official or an experienced scaler the
burden of proof is upon the one attempting to impeach the
scale, * but if the scale was made by one employed by the

1. Heald v. Cooper, 8 Me. 32; Headley v. Hackley, 50 Mich. 43, 14 N. W. 693.
2. Peavey v. Schulenburg, etc. Lbr. Co., 33 Minn. 45; Herdic v. Bilger, 47 Pa. St.
6C; Morrow v. Delaney, 41 Wis. 149.
3. Malone v. Gates, 87 Mich. 332, 49 N. W. 638; Savercowl v. Farwell, 17 Mich. 308.
See Baker v. Kenney 145, Iowa 638, 124 N. W., 901.
4. Malone v. Gates, 87 Mich. 332, 49 N. W. 638.
Iowa 638. P
5. Boyle v. Musser-Sauntry Land Etc. Co., 86 Minn. 160, 90 N. W. 319; Antill v.
Potter, 69 Minn. 192, 71 N. W. 935; Heilbruner v. Wayte, 51 Pa. St. 259;
see Bullock v. Consumers Lbr. Co. (Cal. 1892) 31 Pac. 367; State v. Lumber-
men’s Board of Exch. 33 Minn. 471.
6. Haynes v. Hayward, 41 Me. 488; Peterson v. Anderson, 44 Mich. 441; 7 N. W.
56; Libby v. Johnson, 37 Minn. 220; Clark v. Nelson Lbr. Co. 34 Minn. 289,
25 N. W. 628; Smith v. Schulenberg, 34 Wis. 41. See Day v. Gumaer, 80
Wis. 362, 50 N. W. 182; Lindsay Etc. Co. v. Mullen, 176 U. S. 126; Glaspie
v. Keator, 56 Fed. 203.
7. Bailey v. Blanchard, 62 Me. 168.
8. Christie v. Keator, 49 Wis. 640, 6 N. W. 334; See Welch v. Palmer, 85 Mich. 310;
Crane Lbr. Co. v. Otter Creek Lbr. Co., 79 Mich. 307.
9. Leighton v. Grant, 20 Minn. 345, 355.
10. Burton v. Mayo, 106 Me. 195, 76 Atl. 486; Sullivan v. Ross, 124 Mich. 287, 82
N. W. 1071; Malone v. Gates, 87 Mich. 332; Gates v. Young, 78 Wis. 98, 47
N. W. 275.
11. Ortman v. Green, 26 Mich. 209; See Armstrong Furniture Co. v. Kosture, 66
Ind. 545.
12. Ozark Lbr. Co. v. Haynes, 68 Ark. 185, 56 S. W. 1068.
13. Leighton v. Grant, 20 Minn. 345.

, 14. Lbr. Co. v. Lbr. Co. 135 La. 511, 65 So. 627; Bank v. Hollingsworth, Co. 106
Me. 326, 76 Atl. 880; Atwood v. Hub Co. 103 Me. 394, 69 Atl. 622; Nutter v.
Bailey, 32 Me. 504; Boyle v. Musser-Sauntry Land Etc. Co., 77 Minn. 206,
79N. W. 659.

KINDS OF EVIDENCE ADMISSIBLE 207

seller or under his direction, it is necessary for him to pre-
sent satisfactory evidence as to the accuracy of the scale. }
The testimony of an inexperienced scaler is admissible as to
his own scale, ? and if the parties have agreed that the
sealing shall be done by an official sealer not assigned to the
particular district where the scaling took place, his scale bill
is admissible. ? Where the evidence is not clear that the
parties agreed to accept the scale of a certain party evidence
is admissible as to the scale obtained by others; ‘* and as a
test of an estimate based on a stump scale evidence of a com-
parison between an estimate by the same party on another
tract and the actual amount cut therefrom is admissible. °

The scale bill of one who, by agreement of the parties,
measured only a part of the logs sold is admissible as to the
part actually scaled, ® but not as to logs which were esti-
mated or averaged and not actually scaled; 7 and where the ~
record of a joint scale by the parties to a contract of a por-
tion of the logs was lost, it was held that a third person’s
seale of the whole lot was not competent evidence as to the
part jointly scaled.* A scale of logs made in the woods
is admissible to contradict or correct a scale of the same logs
made at the mill deck, ® or a measurement of the lumber
sawn from the logs, !° but a mere estimate, not based upon
an actual count or measurement of the logs, is not admis-
sible for the purpose of contradicting a scale. ™ <A scaler
will not be permitted to contradict his own scale or his
original report as to quality. * A scale of logs made at a
certain time and place will not be accepted as evidence of the
amount of logs originally comprising the lot where there has
been a transfer of ownership and the logs have been driven a’

1. Atkinson v. Morse, 57 Mich. 276, 23 N. W. 812; Perkins v. Hoyt, 35 Mich. 506;
Patterson v. Larsen, 36 N. Brunswick, 4.

2. Thomas v. Conant (Me. 1886) 5 Atl. 533; Busch v. Kilborne, 40 Mich. 297.

3. Carver v. Crookston Lbr. Co., 84 Minn. 79, 86 N. W. 871.

4. Soverign v. Mosher, 86 Mich. 36, 48 N. W. 611.

5. Busch v. Nester, 70 Mich. 525.

6. Bailey v. Blanchard, 62 Me. 168.

7. Pratt v. Ducey, 38 Minn. 517, 38 N. W. 611; See Douglas v. Leighton, 53 Minn
176.

8. Busch v. Kilborne, 40 Mich. 297.

9. Peterson v. South Shore Lbr. Co., 105 Wis. 106, 81 N. W. 141; see Day v. Gumaer
et al., 80 Wis. 362, 50 N. W. 182.

10. Sigler v. Beebe, 44 W. Va. 587.

11. Fornette v. Carmichael, 41 Wis. 200.

12. Whitman v. Freese, 23 Me. 212.

208 INSPECTION AND MEASUREMENT

long distance. ! Evidence as to the conduct of one of the parties
or of the scaler and expert testimony is admissible where it
tends to impeach the scale. ? Only when the original seale
book or scale bill is not available for use as evidence, or
where it is apparent that no record of the scale was made,
will secondary evidence be admitted as to its contents. *
Seale bills have been admitted as evidence of the delivery 4
or the possession of logs.° Courts have held that the
phrases, ‘“‘purchase scale’’,® ‘‘dead eulls’,’ and “mill
run’’, § have a fixed and recognized meaning in law; but evi-
dence has been admitted for the purpose of determining
whether the phrase ‘‘mill tally’’ in a contract included “‘mill
eulls.’’ °

§145. Court Instructions to Juries. Juries have
been instructed by courts to decide whether the parties
agreed that the scale of a certain person should be final, ° —
whether the scale made was such as the contract contem-
plated, ' and whether there was negligence, mistake or
fraud in the seale. * Instructions by a court to a jury that
a sealer should be held competent if found to be as skillful
and reliable as sealers ordinarily were, have been sustained
by a higher court. * An instruction that a vendor would
not be liable for a small shortage when logs were converted
into lumber if in sealing the logs himself he had fairly ap-
plied the rule ordinarily used in that locality was sus-

1. Itasca Lbr. Co. v. Gale, 62 Minn. 356, 64 N. W. 916. :

2. McCann & Doherty, 98 Wis. 335; Gates v. Young, 82 Wis. 272; Gardner v. Wil-
ber, 75 Wis. 601, 44 N. W. 628.

3. Antill v. Potter, 69 Minn. 192, 71 N. W. 935; Steele v. Schricker, 55 Wis. 134,

12 N. W. 396; Tewksbury v. Schulenberg, 48 Wis. 577, 4 N. W. 757.
4. Smith v. Schulenberg, 34 Wis. 41; See Itasca Lbr. Co. v. Gale, 62 Minn. 356;
Peterson v. South Shore Lbr. Co. 105 Wis. 106.

. Clark v. Nelson Lbr. Co., 34 Minn. 289.

. Hayes v. Cummings, 99 Mich. 206, 58 N. W. 46.

. Brigham v. Martin, 103 Mich. 150, 61 N. W. 276.

. Wonderly v. Holmes Lbr. Co., 56 Mich. 412, 23 N. W. 79.

. Corneil v. New Era Lbr. Co., 71 Mich. 350, 39 N. W. 7.

Cf. Salmon v. Box Co. 158 Fed. 300, 85 C. C. A. 551 (As to meaning of ‘10 and up.”’)

10. Brooks v. Bellows, 179 Mich. 421, 146 N. W. 311; Sovereign v. Mosher, 86 Mich.
36, 48 N. W. 611.

11. Navigation Co. v. Filer, 151 N. W. 1025 (Mich.) (Fair scale by Doyle Rule);
Bresnahan v. Ross 103 Mich. 483, 61 N. W. 793; Daggett v. Hay-
ward, 95 Mich. 217, 54 N. W. 764; Mann v. Paper Co. 41 N. B. 199.

12. Sullivan v. Ross, 124 Mich. 287, 82 N. W. 1071; Gates v. Young, 82 Wis. 272,
52 N. W. 178.

13. Meliquham v. Barber, 83 Wis. 500, 53 N. W. 902.

CoOBNAA

INSTRUCTIONS TO JURIES 209

tained, ! and a charge to a jury that a defendant could not
be bound by any agreement between the plaintiff and the
scaler as to the scale was held to remove the prejudice
against the defendant which might have resulted from the
admission of evidence from the plaintiff as to such agree-
ment.? Under a written contract in Michigan for the
sale of all merchantable white pine to be cut from certain
land, with a provision that the timber be measured by the
Seribner scale with allowance for all defects, a controversy
arose as to the merchantable contents of the logs delivered.
The seller contended that the purchaser should pay for the
number of feet Scribner scale, less proper allowance for
visible defects, in every log which the scaler considered mer-
chantable, irrespective of the grade of lumber which could
be obtained from the log. The purchaser contended that the
sealer should make such allowance as to insure that the pur-
chaser obtained the number of feet of merchantable lumber
that the scale rule gave as the contents of a log, exclusive of
mill culls, even though such culls might have a market value.
The instructions given the jury by the trial judge were to the
effect that a merchantable log was one which contained
lumber in such quantity and of such quality as to make it
worth taking to a mill for manufacture and that the scale
provided for by the contract did not contemplate the ex-
clusion of mill culls. The question of whether the scale of
the logs which had been made by direction of the purchaser
had excluded mill culls in addition to visible defects was left
to the jury. The jury rejected the defendant’s scale and
based their verdict for the vendor of the logs upon a measure-
ment made under his direction. The instruction and find-
ing of the jury were sustained by the Supreme Court of
Michigan on appeal by the purchaser. *

1. Hopkins v. Sanford, 41 Mich. 243, 2 N. W. 39; see Sullivan v. Ross, 124 Mich.
287, 82 N. W. 1071.

2. Malone v. Gates, 87 Mich. 332, 49 N. W. 638; see also Mason v. Phelps, 48 Mich.
126, 11 N. W. 413,.837; Horton v. Harbridge, 127 Pa. St. 11, 17 Atl. 675.

3. Gordon v. Cleveland Sawmill & Lbr. Co. (Mich. 1900) 82 N. W. 230.

CHAPTER XIV

THE TRANSPORTATION OF TIMBER PRODUCTS
BY FLOTATION }

§146. The Use of Streams. Under the English com-
mon law only those streams which the tide affected were
considered navigable as a matter of law. Early in the
development of the lumber industry in America it was
recognized that many streams which were not affected by
the tide in any part of their courses, and the upper portions
of many which were subject to tidal effects only in their
lower courses, must either be declared navigable or, legally
designated as highways to facilitate the transportation of
logs, spars and rafts.

It appears that the streams were at first used for the
driving of logs and the floating of rafts to market without
the formal sanction of the law, but when controversies arose
the legislatures of several English colonies enacted laws de-
claring certain streams to be highways for such purposes and
regulating their use.! Subsequent to the separation of the
colonies from the mother country there was a marked de-
velopment of this kind of legislation in New York? and |
Pennsylvania. * As the lumber industry extended to the

1. Acts of General Assembly of Province of New Jersey, 1753-1761 (Woodbridge,)
N. J., 1761. p. 64, ch. 123.
Acts of General Assembly of Province of New Jersey, (Burlington, N. J., 1776)
p. 205, ch. 271.
Laws of Com. of Penn. 1700 to 1810 (Phila. 1810), Vol: 1, p. 322, ch. 626; Vol.
1, p. 324, ch. 627; Vol. 2, p. 43, ch. 966; Vol. 2, p. 311, ch. 1144.
Compare French v. Connecticut River Lbr. Co., 145 Mass. 261, and Scott ~~
Wilson, 3 N. H. 321, 325. (Indicating establishment of character of Connecti-
cut River as highway through usage). But see Carter v. Thurston, 58 N. H.
104, 42 Am. Rep. 584 (Holding streams highways because of se for
such use.) See also Browne v. Schofield 8 Barb N. Y. 239.

2. Laws of New York, Webster & Skinner, Albany, 1806, Vol. 4, p. 541; Vol. 5,
pp. 93, 388, 467; Vol. 6, p. 74; Session Laws 1849, p. 663; S. L. 1880, p. 752;
S. L. 1881, pp. 18, 80; S. L. 1891, p. 739; S. L. 1892, p. 710; S. L. 1897, p.
612, 703; S. L. 1898, p. 1118. ’

3. Laws of Com. of Penn., Phila. 1810, Vol. 3, pp. 70, 95, 122, 123, 127, 278, 315,
320, 369, 450, 464, 473; Purdon’s Digest Laws of Pa., Rev. by Brightly, 1883,
pp. 1094, 1107.

210

THE USE OF STREAMS 211

Lake States, the South and the Pacific region, laws of this
character were enacted in various states.! The Federal
legislature ? and courts * also recognized the navigability of
) streams which were not affected by the tide.
In most American states any stream that, in its natural
‘condition, is capable of being used for the floating of logs, is
considered navigable, even though such flotation be practic-
able only during periods of seasonal high water; and the
public has a right to use such streams for the transportation
of logs, rafts or timber products in other forms.‘ A stream

1.

wr

Ala. Act. Jan. 31, 1877, Laws of 1877, p. 140 (Sec. 7863, Penal Code, 1907);
Act of Feb. 28, 1887, Laws of 1887, p. 132 (Sec. 7864, Penal Code, 1907).
Calif. Act. Mar. 7, 1889, Laws 1889, p. 85 (Repealed 1897. See Gen. Laws
Calif., 1914, H. & D. 2221.)
Dak. Act. Jan 2, 1863, Laws 1862-3, p. 238, ch. 47. Repeated by act Jan, 8,
1869, S, L. Ch. 11, p. 203.
Idaho Laws of 1885, p. 177 (See Rev. St. 1887, Sec. 830-836.)
Minn. Act Mar. 1, 1856, and Act July 28, 1858 (See Gen. Stat. 1849-58, p. 827.)
Mo. Act June 25, 1839, Laws 1838-39, p. 83; Two Acts of Feb. 11, 1841;
Laws 1840-41, pp. 114 and 115. (Transportation by water.)
N. M. Act Mar. 18, 1907, Laws of 1907, Ch. 47, Sec. 1 (Annotated Stat. 1915,
Sec. 3371.)
Ore. Laws of 1874, p. 87, General improvement in streams. Laws of 1889,
p. 105; County courts to declare non-navigable streams highways.
See Lord’s Oregon Laws 1910, Sec. 6075, and 57 Pac. 1017.
8.C. Act. 1853, Laws of S. C., Vol. 12, p. 305 (Civil Code 1912, Sec. 1928.)
Tenn. Act. Mar. 19, 1883, Ch. 71, p. 68. (Code 1896, Shannon, Sec. 1808.)
Wash. Act. Mar. 17, 1890, Sess. L. 1889-90, p. 470, all meandered streams
highways; others if improved. Cf. Act. Mar. 7, 1891, S. L. 217.
(See Codes & Stats. 1910, Rem. & Bal., Sec. 7118.)
Wis. Art. 4, Sec. 1, of 1st Constitution, adopted Feb. 1, 1848. Rev. Stats.
1849, p. 248, ch. 34; Act Apr. 2, 1853, S. L. Ch. 72, p. 74.
Wyo. Act. Dec. 9, 1869; See Gen’l. Laws ist Sess. Terr. Assembly, p. 324.

. Act May 18, 1796 1 Stat. L. 468; Act. Mar. 3, 1803 (2 Stat. L., 235).
. U.S. v. The Daniel Ball, 10 Wall (U. 8.) 557; The Genesee Chief, 12 How. (U. 8.)

443.
But see U. S. v. Rio Grande Irrigation Co., 174 U.'S. 690,698; Wisconsin v. Du-
luth, 96 U. S. 379; Gilman v. Philadelphia, 3 Wall. 713.

. Ala. Lewis v. Coffee County, 77 Ala. 190, 54 Am. Rep. 55; Walker v. Allen,

72 Ala., 456.
Blackman v. Mauldin, 164 Ala. 337, 51 So. 23.
Calif. See American River Water Co. v. Amsden, 6 Cal. 443; Heckman v.
c Swett. 99 Cal. 303, 33 Pac. 1099.
Fla. Bucki v. Cone, 25 Fla. 1, 6 So. 160; Sullivan v. Jernigan, 21 Fla. 264.
Ga. Railroad Co. v. Sikes, 4 Ga. App. 7. 60 8. E. 868.
Idaho La Veine v. Lbr. Co., 17 Ida. 51., 104 Pac. 666.
Il. Healy v. Joliet Etc. R. Co., 2 Ill. App. 435; Hubbard v. Bell, 54 Ill.
110, 5 Am. Rep. 98.
Ky. Ireland v. Bowman 130 Ky. 153, 113 8S. W. 56.
Ford Lbr. Etc. Co. v. McQueen, 14 Ky. L. Rep. 521; Goodin v. Ken-
tucky Lbr. Co., 90 Ky. 625; 14 8S. W. 775, 12 Ky. L. Rep. 573; See
Murray v. Preston, 106 Ky. 561, 50 S. W. 1095, 90 Am. St. Rep. 232;
James v. Carter, 96 Ky. 378. Huff v. Kentucky Lumber Co. 45 S.W.84.
Me. Brooks v. Cedar Brook Etc., Imp Co., 82 Me. 17, 17 Am. St. Rep. 459;
Lancey v. Clifford, 54 Me. 487, 92 Am. Dec. 561; Davis v. Winslow
51 Me. 264, 81 Am. Dec. 584; Gerrish v. Brown, 51 Me. 256, 81 Am.
Dec. 569; Veazie v. Dwinell, 50 Me. 479; Brown v. Black, 43 Me.
443; Knox v. Chaloner, 42 Me. 150; Brown v. Chadbourne, 31
(Footnote 4 continued on next page)

212

THE FLOTATION OF TIMBER

that is capable of floating logs only during short periods of

Mass.
Mich.

Miss.

Nev.

IN:-O,

Ore.

Penn.

Tenn.

Wash.

W. Va.

U. 8.

(Footnote 4 concluded from preceding page)
Me. 9, 50 Am. Dec. 641; Wadsworth v. Smith, 11 Me. 278, 26 Am.
Dec. 525; Spring v. Russell, 7 Me. 273; Berry v. Carle, 3 Me. 269.

French v. Conn. River Lbr. Co., 145 Mass. 261.

McDonnell v. Rifle Boom Co., 71 Mich. 61; Butterfield v. Gilchrist,
53 Mich. 22; Thunder Bay River Booming Co. v. Speechly, 31 Mich.
336, 18 Am. Rep. 184; Middleton v. Flat River Booming Co. 27 Mich.
533; Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209. But see
Bellows v. Lumber Co. (Mich.) 85 N. W. 1103 (Driving hardwooa
may be unreasonable use)

Doucette v. Little Falls Imp. Co., 71 Minn. 206.

Cue v. Breland, 78 Miss.. 864, 29 So. 850.

McKinney v. Northcut, 114 Mo. App. 146, 89 S. W. 351.

Mandlebaum v. Russell, 4 Nev. 551.

Connecticut River Lbr. Co. v Olcott Falls Co., 65 N. H., 290, 21 Atl.
1090, 13 L. R. A. 826; Collins v. Howard, 65 N. H., 190, 18 Atl. 794;
Carter v. Thurston, 58 N. H., 104, 42 Am. Rep. 584; Thompson v.
Androscoggin River Imp. Co. 54 N. H. 545. Scott v. Wilson, 3 N. H.
321, 325.

Brewster v. Rogers 169 N. Y., 73, 62 N. E. 164, 58 L. R. A. 495, 42
App. Div. 343, 59 N. Y. Suppl. 32.

Pierrepont v. Loveless, 72 N. Y. 211; Morgan v. ‘King, 18 Barb. 277
35 N. Y., 454, 91 Am. Dec. 58; DeCamp v. Thompson, 16 N. Y.
App. Div. 528, 44 N. Y. Suppl. 1014; Canal Fund Com’r’s v. Kemp-
shall, 26 Wend. 404; Shaw v. Crawford, 10 Johns, 236.

See Curtis v. Keesler, 14 Barb. 511; Browne v. Schofield, 8 Barb.
239; Munson v. Hungerford, 6 Barb. 265; DeCamp v. Bullard (N. Y.)
54 N. E. 26.

Burke County v. Catawba Lbr. Co., 116 N. C., 731,, 21 8. E. 941, 47
Am. St. Rep. 829, 115 N. C. 590, 20 S. E. 707, 847.

Kamm v. Normand, 50 Ore. 9, 91 Pac. 448, 126 Am. St. Rep. 698, 11
L. R. A. N. 8. 290; Hunter v. Grande Ronde Lbr. Co., (1901) 65 Pac.
598; Hallock v. Suitor, 37 Ore. 9, 60 Pac. 384; Haines v. Hall, 17 Ore.
165, 20 Pac. 831, 3 L. R. A. 609; Shaw v. Oswego Iron Co.,10 Ore..
371, 45 Am. Rep. 146; Felger v. Robinson, 3 Ore. 455; Weise v. Smith
3 Ore. 445, 8 Am. Rep. 621. Cf. Hood River Lumbering Co. v. Wasco
County, 57 Pac. 1017 (Act. 1889 unconstitutional) -

White Deer Creek Imp. Co. v. Sassaman, 67 Pa. St. 415; Baker v. Lewis
33 Pa. St. 301, 75 Am. Dec. 598; Deddrick v. Wood, 15 Pa. St. 9.

Stuart v. Clark, 2 Swan 9, 58 Am. Dec. 49; But see Irwin v. Brown (1889)
12 S. W. 340; Stump v. McNairy, 5 Hump. 363, 42 Am. Dec. 437.

Shingle Co. v. Skagland, 77 Wash. 8, 137 Pac. 304. Lbr. Co. v. Power —

’ Co., 72 Wash. 631, 131 Pac. 220; State v. Super. Ct. 60 Wash.193,
110 Pac. 1017; Monroe Mill Co. v. Menzel, 35 Wash. 487, 77 Pac.
813, 102 Am. St. Rep. 905, 70 L. R. A. 272; ‘Wathine v. Dorris, 24
Wash. 636, 64 Pac. 840, 54 L. R. A. 199.

Gaston v. Mace, 33 W. Va. 14, 10 S. E. 60, 25 Am. St. Rae 848, 5
L. R. A, 392.

Bloomer v. Bloomer, 128 Wis. 297, 107 N. W. 974; in re Power Co.,
140 Wis. 245, 122 N. W. 801. Falls. Mfg. Co. v. Oconto River Imp.
Co., 87 Wis. 134, 58 N. W. 257 Stevens Point Room Co. v. Reilly,
44 Wis. 295;49 N. W. 978; Oison v. Merrill, 42 Wis. 203; See Sheldon
v. Rockwell, 9 Wis. 166, 76 Am. Dec. 265. Sellers v. Union Lum-
bering Co., 39 Wis. 525; Whisler v. Wilkinson, 22 Wis. 572. Cf.
Allaby v. Service Co. 135 Wis. 345, 116 N. W.4, 16L. R.A. N.
S. 420.

U. S. v. Marthinson, 58 Fed. 765; U. S. v. Burns, 54 Fed. 351; Heer-
man v. Beef Slough Mfg. Etc. Co. 1 Fed. 145, 8 Biss. 334; U. S. v.
Miss. River Boom Co., 1 McCrary, 601.

Canada: Rowe v. Titus, 6 N. Brunswick 326; Esson v. McMaster, 3 N. Bruns-

wick 501. Ward v. Grenville, 32 Can. 8. Ct., 510.
But see Nardini v. Reid, 6 Newfd. 134.

THE USE OF STREAMS 213

exceptionally high water, ! or only through the continuous
application of force by persons or devices on the bank ? or in
boats * is not a public highway. However, interception to
continuous navigation by rapids or falls does not destroy
the navigable character of the stream if it is actually capable
of navigation both below and above the obstruction, ‘ and
the character of a stream as a public highway for the trans-
portation of logs and other timber products will not be
affected by obstructions which arise from accident or the
intentional act of some one. * The fact that the stream has
been used ordinarily by only a limited number, or by cer-
tain classes of persons does not preclude the general public
from using it, ® but a stream is not subject to the public
easement when the stage of water is such as to make it in-
capable of floating logs.’ Except as provided by statute
a stream is not subject to the public easement, if it can be
made capable of floating logs only through artificial improve-
ment. ®

1. See Lewis v. Coffee County, 77 Ala. 190, 54 Am. Rep. 55; Rhodes vy. Otis, 33
Ala. 578, 73 Am. Dec. 439; Hubbard v. Bell, 54 Ill. 110, 5 Am. Rep. 98;
Irwin v. Brown (Tenn. 1889) 12 8S. W. 340. ;

2. Hooper v. Hobson, 57 Me. 273, 99 Am. Dec. 769; Treat v. Lord, 42 Me. 552,
66 Am. Dec. 298; Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641; Wads-
worth v. Smith, 11 Me. 278, 26 Am. Dec. 525; See Haines v Hall, 17 Ore.
165, 20 Pac. 831, 3 L. R. A. 699, (Injunction), Olson v. Merrill, 42 Wis. 213.

3. Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58.

4. The Montello, 20 Wall (U. 8.) 430; Spooner v. McConnell, 1 McLean (U. 8.)
337; Matter of State Reservation Comm'rs, 37 Hun (N. Y.) 537, 16 Abb. N.
Cas. (N. Y.) 159.

5. Treat v. Lord, 42 Me. 552, 66 Am. Dec. 298.

Shingle Co. v. Skagland, 77 Wash. 8, 137 Pac. 304.

6. Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209.

But compare Meyer v. Phillips, 97 N. Y., 485, 49 Am. Rep. 538; Haines v. Hall,
17 Ore. 165, and the citations under (1) above.

And see Rhodes y. Otis, 33 Ala. 578,.73 Am. Dec. 439-a, license to float logs
on a stream.

7. Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 18 Am. Rep. 184,
Mathews v. Mfg. Co., 35 Wash. 662, 77 Pac. 1046. .

8. Ky. Banks v. Frazier, 111 Ky. 909, 64 8S. W. 983, 23 Ky. L. Rep. 1197.

Me. Person v. Rolfe, 76 Me. 385; Holden v. Robinson Mfg. Co. 65 Me. 215;
Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525.
Mich. Koopman v. Blodgett, 70 Mich. 610, 14 Am. St. Rep. 527; Moore v.
Sanborne, 2 Mich. 519, 59 Am. Dec. 209.
N. H. Connecticut River Lbr. Co. v. Olcott Falls Co., 65 N. H. 290.
N. Y. DeCamp v. Thomson, 16 N. Y. App. Div. 528, 44 N. Y. Suppl. 1014;
Ten Eyck v. Warwick, 75 Hun. 562. And see DeCamp v. Dix 54
N. E, 63 (N. Y. law unconstitutional, stream too small.)
Ohio Jeremy v. Elwell, 3 O. Cir. Dec. 186, 5 O. Cir. Ct. 379.
Ore. Nutter v. Gallagher, 19 Ore. 375; Haines v. Hall, 17 Ore. 165, 20 Pac.
5 831, 3 L. R. A. 609.
(Footnote 8 continued on next page)

214 THE FLOTATION OF TIMBER

§147. The Use of and Injuries to Land Adjacent to
Streams. If the character of a stream is such that it is:
subject to a public easement for the driving or floating of
logs and rafts, one using the stream legitimately may go upon,
the banks to remove temporary obstructions from the
stream, ' force logs past an obstruction, * break log jams, *
remove stranded logs, ‘ secure a boom or raft temporarily, *
and do other acts reasonably necessary for the effective flo-
tation of timber products. * The right to use the banks is
limited to a necessary and reasonable use, 7 and any negli-
gence on the part of one using the stream is ordinarily con-
sidered the basis of liability for damages. * He will not be

(Footnote 8 concluded from preceding page) ‘
Wash. East Hoquiam Boom Etc. Logging Co. v. Nelson, 20 Wash. 142, 54
Pac. 1001.
For application of Canadian statutes regarding improved streams, See Cald-
well v. McLaren, 9 App. Cas. 392, 53 L. J. P. C. 33, 51 L. T. Rep: N.
S. 370, (overruling Boale v. Dickson, 13 U. C. C. P. 337); Mackey v.
Sherman, 8 Ont. 28; Whelan v. McLachlan, 16 U. C. C. P. 102.
Hunt v. Beck, 9 Ont. W. N. 187; Neely v. Peter, 4 Ont. L. Rep. 293
1 Ont. W. R. 499; McLaren v. Calswell, 8 Can. S. Ct. 435.
. Treat v. Lord, 42 Me. 552, 66 Am. Dec. 298. ore
See Carter v. Thurston, 58 N. H. 104, 42 Am. Rep. 584 (Right very limited)
. Hooper v. Hobson, 57 Me. 273, 99 Am. Dec. 769 (If necessary and no substantial
damage done.)
But see Haines v. Hall, 17 Ore. 165; Watkins v. Dorris, 24 Wash. 636, 64 Pac.
840, 54 L. R. A. 199.
4. Ford Lbr. Etc. Co. v. McQueen, 14 Ky. L. Rep. 521; Carter v. Thurston, 58
N. H. 104; 42 Am. Rep. 584; Sheldon v. Sherman, 42 Barb. (N. Y.) 368, 42
N. Y. Rep. 484. See Garth Lbr. & Shingle Co. v. Johnson, 151 Mich. 205,
209; Forster v. Juniata Bridge Co., 16 Pa. St. 393, 45 Am. Dec. 506.
5. Hayward v. Knapp, 23 Minn. 430; Weise v. Smith, 3 Ore. 445, 8 Am. Rep. 621;
Pursell v. Stover, 110 Pa. St. 43, 20 Atl. 403.
6. Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641; Moore v. Jackson, 2 Abb.
N. Cas. (N. Y.) 211; Downsdale v. Grays Harbor Boom Co., 36 Wash. 198,
78 Pac. 904: Cf. Pursell v. Stover, 110 Pa. 43, 20 Atl. 403; State v. Super Ct.
60 Wash. 193, 110 Pac. 1017.
7. Ford Lbr. Etc. Co. v. McQueen, 14 Ky. L. Rep. 521; Sheldon v. Sherman, 42
Barb. (N. Y.) 368. See Brown v. Kentfield, 50 Calif. 129; Campbell v. Dickie,
36 Nova Scotia 40.
8. Ala. Harola v. James, 86 Ala. 274, 3 L. R. A. 407. See Gulf Red Cedar Co.
v. Walker, 132 Ala. 553, 31 So. 374.
Ark. Henderson v. Lbr. Co. 94 Ark. 370, 127 S. W. 459, 28 L. R. A. N.S. 144,
¢139 S. W. 649.
Fla. R. Co. v. Yarbrough, 57 Fla. 101, 48 So. 634.
Ky. Thurmon v. Morrison, 14 B. Mon. 296.
Me. Howe v. Lbr. Co., 110 Me. 14, 85 Atl. 160.
Mich. White River Logging Co. v. Nelson, 45 Mich, 578, 8 N. W. 587, 909;
Grand Rapids Booming, Co. v. Jarvis, 30 Mich. 308.
Minn. Mandery vy. Boom Co., 105 Minn. 3, 116 N. W. 1027, 1035; Coyne v.
Miss. Etc. Booming Co., 72 Minn. 533, 75 N.W. 748; 71 Am. St. Rep.
508, 41 L. R. A. 494; Miller v. Chatterton, 46 Minn. 338, 48 N. W. 1109.
See Ramgren v. McDermott, 73 Minn. 368, 76 N. W. 47; Doucette v.
Imp. Etc. Co., 71 Minn. 206, 73 N. W. 847.
Breeland, 78 Miss. 864, 29 So. 850.
v. Lbr. Co., 187 Mo. App. 386, 173 S. W. 15.
F ootnote 8 continued on next page)

gah

INJURIES TO BANKS OF STREAMS 215

ATS

liable for damages caused by the logs through an unusual
and unexpected rise in the stream, if his conduct has been
that of a prudent man; but he will be liable if the sudden °
rise of water was customary at that season or the probability
of damage because of an unusually high stage of water might
have been reasonably anticipated, ” .
Liability will be incurred irrespective of negligence if an
effort is made to drive a stream at a time when the flow is"
insufficient to float the logs, * or if logs are boomed along —
the bank without an agreement with the riparian owner. 4
Moreover, damages are recoverable for any substantial in-
jury due to an entrance upon the shores to remove stranded
logs or to break jams, even though such injury be neces-
sarily incident to the operations. ® The liability of the one
using the stream may be reduced or entirely avoided by

proof of a lack of ordinarv care, “ or a contributory negli-

(Footnote $ concluded from preceding page)
N. Y. Brewster v. Rogers Co., 169 N. Y. 73, 62.N. E. 164, 58 L. R. A. 495,
42 App. Div. 343, 59 N. Y. Suppl. 32; Outterson v. Gould, 77 Hun.
429, 28 N. Y. Suppl. 798.
Ore. Hunter vy. Grande Ronde Lbr. Co., 39 Ore. 448, 65 Pac. 598. (Over-
_ vuling Haines v. Welch, 14 Ore. 319, 12 Pac. 502.)
Pa. Bald Eagle Boom Co. v. Sanderson, 81 1-2 Pa. St. 402.
Vt. Boutwell v. Realty Co., 94 Atl. 108.
Wash. See Peterson v. Arland, 79 Wash. 679, 141 Pac. 63; Johnson v. Lbr. Co.,
79 Wash. 520, 140 Pac. 577 (liability of several owners for jam;)
Watkins v. Dorris, 24 Wash. 636, 64 Pac. 840, 54 L. R. A. 199.
Wis. Field v. Apple River Log Driving Co., 67 Wis. 569, 31 N. W. 17 (injury
not trespass); Hackstack v. Keshena Imp. Co., 66 Wis. 439; Keator
Lbr. Co. v. St. Croix Boom Corp., 72 Wis. 62, 7 Am. St. Rep. 837.
Canada Dumont v. Fraser, 48 Can. S. Ct. 137; Ward v. Grenville Tp. 32 Can.
Sup. Ct. 510; Auger v. Cook, 39 U. C. Q. B. 537; Campbell v. Dickie,
36 Nova Scotia 40; Lowery v. Booth, 34 Ont. L. 204, 8 Ont. W. N.
529; Ireson v. Timber Co., 30 Ont, L. 209, 5 Ont. W. N. 577 (unrea-
sonable obstruction); Langstaff v. McRae, 22 Ont. 78.
See also Cockburn v. Lbr. Co., 30 Can.S8.Ct. 80 (arbitration of damages.)
1. Goodin v. Kentucky Lbr. Co., 90 Ky. 625, 14 S. W. 775, 12 Ky. L. Rep. 573;
Lawler v. Baring Boom Co., 56 Me. 443; Borchardt v. Wausau Boom .Co.,
54 Wis. 107, 41 Am. Rep. 12.
See Carter v. Thurston, 58 N. H. 104, 42 Am. Rep. 584. .-
2. Gulf Red Cedar Co. v. Walker, 132 Ala. 553, 31 So. 374.
3. Gwaltney v. Scottish Carolina Timber Etc. Co., 115 N. C. 579, 20 S. E. 465;
See Hoskins y. Archer, 6 Ky. L. Rep. 671; Munson v. Hungerford, 6 Barb.
(N. Y.) 265.
4. Lumber Co. v. Johnson, 151 Mich. 205, 115 N. W. 52; Lorman v. Benson, 8 Mich.
18, 77 Am. Dec. 435; (But see Canfield v. Erie, 1 Mich. N. P. 105;) Watkinson
v. McCoy, 23 Wash. 372, 63 Pac. 245; See McPheters v. Moose River Log
Driving Co., 78 Me. 329; Felger v. Robinson, 3 Ore 455. See Vt. Act Apr.
2, 1915 S. L. No. 140, p. 221.
5. Inspectors Assoc. v. Inspectors Assoc. 57 Fla. 399, 45 So. 603.
Hooper v. Hobson, 57 Me. 273, 99 Am. Dec. 769; Harrington v. Edwards, 17
Wis. 604, 86 Am. Dec. 768; See Gratwick Etc. Lbr. Co. v. Lewis, 66 Mich. 533.
De Camp v. Bullard (N. Y.) 54 N. E, 26. Campbell v. Dickie, 36 N. Scotia 40.
6. Harold v. Jones, 86 Ala. 274; Lilley v. Fletcher, 81 Ala. 234, 1 So. 273. Huff
v. Kentucky Lbr. Co. 45 S. W. 84.

216 THE FLOTATION OF TIMBER

gence ' on the part of the injured party. The same rules
obtain as to injuries from the overflowing of land because of
log jams, splash dams, or booms. Any negligence in the
construction of boom, lack of diligence in driving logs or
unnecessary delay in the breaking of a jam will give rise to
an action for damages, ? and liability will be incurred even
where due diligence is exercised if the frequent or continued
overflow of lands is the natural and logical result of the
operation of a boom.* The common law and statutory
rights may be modified by contract. *

In several states statutes provide for an assessment of
damages by disinterested parties; ° but it has been held that
such provisions do not preclude the determination of the
damage by other means, ® and that they are applicable
only to ordinary and necessary damages and not to those
resulting from negligence.’ It has also been held that the
remedy for damages was not limited to a seizure of logs as
provided by statute, but that an action at law for damages
might also be brought. *® The transfer of title in a boom
from one party to another carries with it such rights as have
been acquired from riparian owners for the maintenance of
the boom. * The general rules of law regarding the grant-
ing of an injunction, ' the proof of title, ! burden of proof, ”

1. Miller v. Sherry, 65 Wis., 129, 26 N. W., 612.
2. Mich. Witheral v. Muskegon Booming Co. 68 Mich. 48, 35 N. W. 758, 13 Am.
St. Rep. 325; Bauman v. Pere Marquette Boom Co., 66 Mich. 544, 33
N. W. 538; Anderson v. Thunder Bay River Boom Co., 61 Mich. 489,
28 N. W. 518; White River Log Etc. Co. v. Nelson, 45 Mich. 578, 8
N. W. 578, 909. -
Minn. Osborne v. Miss. Etc. River Boom Co., 95 Minn. 149, 103 N. W. 879;
Coyne v. Miss. Etc. Boom Co., 72 Minn. 533, 75 N. W. 748, 71 Am.
St. Rep. 508, 41 L. R. A. 494.
* Mont. Hopkins v. Butte Etc. Co., 16 Mont. 356, 40 Pac. 865.
N. H. George v. Fisk, 32 N. H. 32.
Wash. White v. Codd, 39 Wash. 14, 80 Pac. 836.
3. Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Hueston v. Miss. Etc. Boom
Co., 76 Minn. 251, 79 N. W. 92; Weaver v. Miss. Etc..Boom Co., 28 Minn.
534; See Pumpelly v. Green Bay Co., 13 Wall (U. S.) 181; Barrett v. Bangor,
70 Me. 335. Baumgartner v. Sturgeon R. Boom Co. (Mich.) 79 N. W. 566.
4. Bradley v. Tittabawassee Boom Co., 82 Mich. 9, 46 N. W. 24; Lacy v. Green,
84 Pa. St. 514.
5. Bald Eagle Boom Co. v. Sanderson, 81 1-2 Pa. St. 402.
6. Miller v. Chatterton, 46 Minn. 338, 48 N. W. 1109; Brewster v. Rogers Co.,
169 N. Y. 73, 62 N. E. 164, 58 L. R. A. 495, 42 App. Div. 343, 59 N. Y. Suppl.
32.
7. Mandlebaum yv. Russell, 4 Nev. 551.
8. Coe v. Hall, 41 Vt. 325. See Howe v. Lbr. Co. 110 Me. 14, 85 Atl. 160.
9. Hoskins v. Brown, 76 Me. 68; See Engel v. Ayer, 85 Me. 448, 27 Atl. 352.
10. Buchanan v. Grand River Etc. Log Running Co., 48 Mich. 364, 12 N. W. 490.
1I. Field v. Apple River Log Driving Co., 67 Wis. 569, 31 N. W. 17.
12. Anderson v. Thunder Bay River Boom Co., 61 Mich. 489, 28 N. W. 518.

. INJURIES TO BANKS OF STREAMS 217

admissibility and sufficiency of evidence, ' and province of
the jury, ? are applicable to actions of this kind.

§148. The Rights of Riparian Owner as to the Use
of Drivable Stream. A riparian owner may maintain a
boom ? or a dam ‘4 which does not interfere with the reason-
able use of the stream by others. The public right to the
use of a stream as a highway is primary and superior to the
right of the riparian owner to maintain a dam, ° but it is
not exclusive and is subject to such restrictions as are es-
sential to the reasonable enjoyment of the right of the
riparian owner. ® The maintenance of dams and the pro-
vision of sluiceways for the passage of logs is regulated by
statute in many American states.’7 Subject to the limita,

1. Karwick v. Pickands, 181 Mich. 169, 147 N. W. 605, Cf. 137 N. W. 219.

Coburn v. Muskegon Booming Co., 72 Mich. 134, 40 N.W. 198, Witheral v. Musk-
egon Booming Co., 68 Mich. 48, 35 N. W. 758, 13 Am. St. Rep. 325; Hopkins
v. Butte Etc. Co., 16 Mont. 356, 40 Pac. 865; Sewall’s Falls Bridge v. Fisk,
23 N. H., 171; Taylor v. Norfolk Etc. R. Co., 1381 N. C. 50, 42 S. E. 464; Gwalt-
ney v. Scottish Carolina Timber Etc. Co., 111 N. C. 547, 16 S. E. 692; Hunter
v. Grande Ronde Lbr. Co., 39 Ore. 448, 65 Pac. 598; Shaw v. Susquehanna
Boom Co., 125 Pa. St. 324, 17 Atl. 426; Edwards v. Wausau Boom Co., 67
Wis. 463, 30 N. W..716. Johnson v. Lbr. Co. 75 Wash. 539, 135 Pac. 217.

2. Anderson v. Thunder Bay River Boom Co., 61 Mich. 489, 28 N. W. 518; Outter-
son v. Guld, 77 Hun. (N. Y.) 429, 28 N. Y. Suppl. 798; Garvin v. Gates, 73
Wis. 514 (as to what constitutes ‘‘good driving water’’ as used in contract.)

See Lbr. Co. v. Henderson, 100 Ark. 53, 139 8S. W. 649; Sutherland v. Boom etc.,
Co. 73 Wash. 75, 131 Pac. 455.

3. Warner v. Lumber Etc. Co., 123 Ky. 103, 93 8, W. 650, 29 Ky. L. Rep. 527, 12
L. R. A..N. 8S. 667; Brig ‘‘City of Erie’ v. Canfield, 27 Mich. 479; Mill Ete.
Co. v. Johnson, 52 Ore. 547, 98 Pac. 132, 132 Am. St. Rep. 716; Boom Co.
v. Reilly, 44 Wis. 295; Brace v. Forwarding Co., 32 U. C. Q. B. 43.

Bui see Atlee v. Union Packet Co., 21 Wall. (U. S.) 389; Northwestern Packet
Co. vy. Atlee, 2 Dill (U. S.) 479; Moore v. Jackson, 2 Abb. N. Cas. (N. Y.)
211; Tanguay v. Price, 37 Can. 8S. Ct. 657. :

4. Middleton vy. Flat River Booming Co., 27 Mich. 533; See Collins v. Howard,
65 N. H. 190; Munson v. Hungerford, 6 Barb. (N. Y.) 265; Martin v. Boom
Co., 79 Wash. 393, 140 Pac. 355; A. C. Conn Co. v. Little Suamice Lbr. Mfg.
Co., 74 Wis. 652.

5. Foster v. Searsport Spool Etc. Co., 79 Me. 208, 11 Atl. 273; Pearson v. Rolfe.
76 Me. 380; see Stratton v. Currier 81 Me. 497, 17 Atl. 579, 3 L. R. A. 809;
Holyoke Water Power Co. v. Conn. Riv. Co., 52 Conn. 570; Lancey v. Clif-
ford, 54 Me. 487, 92 Am. Dec. 561.

6. Parks v. Morse, 52 Me. 260; Veazie v. Dwinel, 50 Me. 479; Buchanan v. Grand

‘ River Etc. Log Running Co., 48 Mich. 364, 12 N. W. 490; Crookston Water-
works Etc. Co. v. Sprague, 91 Minn. 461, 98 N. W. 347, 99 N. W. 420, 102
Am. St. Rep. 525, 64 L. R. A. 977; Kamm v. Normand, 50 Ore. 9, 91 Pac. 448,
126 Am. St. Rep. 698, 11 L. R. A. N. 8S. 290; Dumont v. Fraser, 48 S. OC. 137;
Conn. Co. v. Lbr Etc. Co.. 74 Wis. 652, 43 N. W. 660; Ward v. Grenville Tp...
32 Can. Sup. Ct. 510. Cf. James v. Rathbun Co., 11 Ont, L. R. 371, 6 Ont. W. R.
1005.

7. Ala. Act. Feb. 28, 1887, Sess. L. 1887, p. 182; Criminal Code 1907, Sec. 7863..

Dak. Act. Jan. 2, 1863, Laws of Dak. 1862-63, p. 238, ch. 47.
Idaho Act of Feh. 5, 1885, Laws of Idaho, 1885 p. 177 (See Rev. St. Lda. Terr,
1887, p. 830-836. Rev. Code 1908, sec. 872.)
Ky. Act Mar. 21, 1906; Same Ky. Stat. 1909, Ch. 38a.
(Footnote 7 continued on next page)

218 THE FLOTATION OF TIMBER

tion that no one shall be deprived of a substantial property
right without due compensation, such statutes will be sus-
tained by the courts. !

§149. Contracts for the Floating of Logs. The
usual rules of law are applicable to contracts for the driving
of logs.? There must be an unqualified acceptance of a
definite offer.* If a contract does not clearly provide that
performance shall be complete within a_ definite time, *
performance within a reasonable time will be considered a
sufficient compliance with the terms of the contract. °
Reasonable care must be exercised by the one driving the
logs. ® Release from a contract is not ordinarily effected
by a change in circumstances for which the other party is
not responsible, even though such change imposes an addi-
tional burden and responsibility on the one who is to do the

(Footnote 7 concluded from preceding page)

Minn. Act. Mar. 1, 1856; Act. July 28, 1858 (See Stat. Minn. 1849-58, p. 827)
Gen. St. Minn. 1913, Tiffany, Sec. 5433-5437.

Nev. Act. Mar. 3, 1866, Laws of Nev. 1866, p. 198 (Gen. &. Nev. 1885, Sec.
1065. .

N. Y. Act April 4, 1806, Ch. 139, Laws New York, W. & S. Albany, 1806,
Vol. 4, p. 541; Act. Mar. 31, 1807 Ch. 78, Vol. 5 p. 93; Act April 5,
1810, Ch. 180, Vol. 6 p. 74. ;

Pa. Act Mar. 23, 1803, Laws Pa. 1810, Vol. 4 p. 20, Ch. 2342.

8.C. Act of 1856, Stat. at L. Vol. 12, p. 517; Same Code 1912, Sec. 1410.

Va. Act Mar. 4, 1880, Sess Laws p. 172 (Code 1904, Sec. 3876)

Wyo. Act Dec. 9, 1869, Gen'l Laws ist Sess. Terr. Ass., p. 324.

1. Simons v. Munch, 107 Minn. 370, 120 N. W. 373; 121 N. W. 878; Power Co. v.
Boom Co. 43 Minn. 380, 45 N. W. 714; Mille Lac. Imp. Co. v. Bassett, 32 Minn.
375, 20 N. W. 363; Anderson v. Munch, 29 Minn. 414, 13 N. W. 192; Lamprey
v. Nelson 24 Minn. 304.

Denton v. State, 72 App. Div. 248, 76 N. Y. Suppl. 167; Morris v. King, 18 Barb.
(N. Y.) 277.

2. See Nav. Co. v. Salt etc. Co. 174 Mich. 1, 140 N. W. 565; Nav. Co. v. Filer,
(Mich.) 151 N. W. 1025; Blakely v. Lbr. Co. 121 Minn. 280, 141 N. W. 172;
Coleman v. Boom Co. 114 Minn. 443, 127 N. W. 192, 131 N. W. 641; 35 L.
R. A. 1109; McGuire v. Lbr. Co. 97 Minn. 293, 107 N. W. 130; Phalen y. Lbr.
Co. 136 Wis. 571, 118 N. W. 219; Ball v. McCaffrey, 20 Can. S. Ct. 319.

3. Seaton v. Pere Marquette Boom Co., 84 Mich. 178, 47 N. W. 560; Ames v. Pért
Huron Log Driving Etc. Co., 6 Mich. 266; Wausau Boom Co. v. Plummer,
35 Wis. 274: See Stewart v. Milliken, 30 Mich. 503; Lbr. Co. v. Boom Corp.
115 Minn. 296, 132 N.. W. 259; Boom Corp. v. Lbr. Co. 27 Ont. L. 131, 4 Ont.
W. N. 5, 22 Ont. W. R. 952.

4. Gainor v. Cheboygan River Boom Co., 86 Mich. 112, 48 N. W. 487; Darrah v.
Gow, 77 Mich. 16, 43 N. W. 851.

5. Bonifay v. Hassell, 100 Ala. 269, 14 So. 46; Francis v. Shearer, (Ky. 1891) 16
S. W. 365, 17 S. W. 165, 13 Ky. L. Rep. 283; Hopkins v. Sanford, 41 Mich.
243, 2 N. W. 39; Whalon v. Aldrich, 8 Minn. 346; Garvin v. Gates, 73 Wis.
513, 41 N. W. 621; Cohn v. Stewart, 41 Wis. 527.

6. Palmer v. Penobscot Lumbering Asso., 90 Me. 193; See Tingley v. Bellingham
Bay Boom Co., 5 Wash. 644. .

CONTRACTS FOR THE FLOATING OF LOGS 219

driving.' The contractor must be prepared to meet
ordinary contingencies. * However, the failure of water
has been held to excuse performance where the terms of the
contract did not specifically require an unconditional per-
formance. * The obligation assumed in an agreement to
drive certain logs is not affected by the failure of the other
party to furnish the whole amount of logs contemplated by
the contract, * and where a contractor had failed to drive
logs within the time agreed, a Michigan court refused to
take judicial notice of the alleged fact that the streams in
the northern peninsula of that state were not open on April
first of any year for the driving of logs. ° The compensa-
tion per thousand feet or other unit fixed by a contract is
recoverable only for the logs actually driven and delivered. °
Recovery at the same agreed rate can be had for the driving
of additional logs,’ or for extra expenses for which the
original contract contemplated additional compensation, *
but parol evidence of an agreement inconsistent with the
written contract will not be accepted. ° The measure of
damages for a failure to drive logs is the actual loss suffered
by the party owning the logs, ' including the profit which
he might have realized if the logs had been driven as agreed.

$150. Commingled Logs. At common law a party
who fails to properly drive his logs and thus obstructs a
stream to the injury of another desirous of using it is liable

1. Mississippi River Logging Co. v. Robson, 69 Fed. 773, 16 C. C. A. 400 (Affm’g
Robson v. Miss. Riv. Log. Co., 61 Fed. 893.)
Wav.-Co, v; Salt -etc..Co. 174 Mich. 1, 140: N. W: 565:

2. Haines v. Gibson, 115 Mich. 131; Garvin v. Gates, 73.Wis. 513; Godkin v. Mona-
han, 838 Fed. 116.

3. Clarksville Land Co. v. Harriman, 68 N. TH. 374, 44 Atl. 527; But see Keystone

bbr: & Mfze.Co. v. Dole, 43. Mich. 370.

. Boody v. Goddard, 57 Me. 602.

sakaines v. Gibson, 115: Mich,. 131.

Go Nay. Go: vi “Piléc™ (Mich)* 151 N. W.. 1025,
Gill v.. Jolinston Lbr, Co., 151. Pa. St. 534,25. Atl. 120. ‘See Gibson v: Trow
(Wis.) SIN. W. 411. (Payment to third party for delivery.) Noyes v. Marlott,
Loo ed: «od, wt Ce Cy As 409.

7. Meserve v. Lewiston Steam Mill Co., 64 Me. 438.

8. Davis v. Ladue, 58 Mich. 226, 24 N. W. 871: See Destrehan v. Louisiana Cypress
Lbr. Co:, 45 La. Ann. 920, 13 So. 230,40 Am. St. Rep. 365; Mississippi Rafting
Oo. vy. Ankeny, 1SMinn. 17.* Ebr. ‘Co. v. Hotard 142: hy. 346, 134 8S. W. 133.

9. Meckivs v. Newberry, 101 N. C. 17; See Johnson v. Cranage, 45 Mich. 14.

10. Parks v. Libby, 92 Me. 133, 42 Atl. 318; Whalon v. Aldrich, S Minn. 346; Palmer
v. Penobscot Lumbering Asso. 90 Me. 193; See Penobscot Lumbering Asso.
v. Bussell, 92 Me. 256.

Sie

220 THE FLOTATION OF TIMBER

for the damages suffered by the latter.' If logs are com-.

mingled in such a way that they cannot practically be sep-
arated until driven to a point farther down the stream,
either party may ordinarily collect a reasonable compensa-
tion for driving the logs of the other to a point of convenient
separation, provided such notice is given as to afford to the
other party a reasonable time to care for his own logs ? but

this principle will not be extended so as to authorize com-
pensation for unnecessary and voluntary services. * Where

an explicit contract is made between two parties for the
driving of logs the rights and duties of the parties will be en-
- forced in accordance with the terms of such contract, irre-
spective of common law rules or of statutory regulations of
the jurisdiction, provided the terms of the contract are not
subversive of public policy. +

§151. General Statutory Regulation of Log Driv-
ing. Ina few states there are laws prescribing the manner
in which logs shall be floated and providing for a forfeiture
of the logs or for other penalty if the logs are not floated in
compliance with the terms of the statutes.’ These acts
aim at a prevention of injury by loose and uncontrolled logs,
and have been sustained by the courts as_ constitutional. °
In many states statutes provide that one who is compelled
to break jams formed through the negligence of another

party using the stream, or to drive the logs of another in-

1. Bearce v. Dudley, 88 Me. 410, 34 Atl. 260; Bellant v. Brown, 78 Mich. 294, 44
N. W. 326; Miller v. Chatterton, 46 Minn. 338, 48 N. W. 1109, Auger v. Cook,
39 U. C. Q. B. 537.
. Hodson vy. Goodale, 22 Ore. 68,29 Pac. 70. -
. Doyle v. Pelton, 134 Mich. 398, 96 N. W. 483; Peters v. Gallagher, 37 Mich. 407.
. 4. Dow v. Huckins, 34 Me. 110; McDonald v. Boeing, 80 Mich. 415, 45 N. W. 362;
Beard v. Clarke, 35 Minn. 324, 29 N. W. 142; Walker v. Bean. 34 Minn. 427,
26 N. W. 232.
5. Ky. Act May 7, 1886, “(Gen'l Laws Ky. 1887, p. 495.)
Mass. Act Mar. 1, 1815. (Pub. & Gen'l Laws Mass., Boston, 1816. p. 462)
(See Rev. L. Mass. 1902, p. 815, Sec. 5.)
N. H. Act June 10, 1808 (Laws of N. H., Exeter, 1815, p. 339.)
Ohio Act Mar. 23, 1840 (Laws of Ohio, 1839-40, p. 95, Sec. 35, Canal Act.)
Pa. Act Mar. 20, 1812, Pamphlet Laws 1812, p. 136, ch. 91. Act Dec. 11, 1866,
Pamphlet Laws 1867, No. 1366.
Cf. Ala. Crim. Code, 1907, sec. 7868 (Act. Oct. 9, 1903, p. 536) and Col. Annota-
ted Stat.'1912, Mills, Sec. 3019 (Bonds against injury to bridges.)
6. Com. v. Asher Lbr. Co., 32 8S. W. 136, 17 Ky. L. Rep. 542; Johnson v. Com.,
20 S. W. 200, 14 Ky. L. Rep. 257; Com. v. Puckett, 92 Ky. 206, 17 8S. W. 353;
Evans v. Com., (Ky. 1888) 7 S. W. 925; French v. Connecticut R. Lbr. Co.,

© bo

145 Mass. 261; Harrigan v. Conn. R. Lbr. Co., 129 Mass. 580, 37 Am. Rep.

387; Barron v. Davis, 4 N. H. 338; Scott v. Wilson, 3 N. H. 321; Wendt v.
Craig, 67 Pa. St. 424; Craig v. Kline, 65 Pa. St. 399, 3 Am. Rep. 636.

STATUTORY REGULATION pad |

order to drive his own, shall be entitled to a reasonable com-
pensation for his expenditures.! These statutes are also
sustained by the courts.” This right to compensation
may include even a proportional share of the cost of artificial
means * and applies to various floatable timber products. 4
The fact that it has been customary not to require contribu-
tion for services thus rendered has been held not to affect
the liability ° and the statutes have been applied where the
logs were intermingled by agreement. ® Compensation will
not be enforced for the driving of logs that did not interfere
with the plaintiff’s drive,’ nor can recovery be had if the
intermingling was due to the fault of the plaintiff.* If
parties cooperate in the driving of logs, each will be entitled
to compensation for any service rendered beyond the amount
required to drive his own logs, provided such service was
necessarily rendered and there was not a contract releasing

1. Ala. Cf. Code of 1907, sec. 4818-21 (Act. Feb. 18, 1895, p. 992) boomage.
Ark. Digest of Statutes, 1904 Kirby, Sec. 4089 (Act Mar. 17, 1883) Sec. 6526

to boom companies.

Ga. Cf. Annotated Statutes, 1914, Park, sec. 1838, boomage.

Idaho Rey. Codes 1908, sec. 1504.

Iowa Code 1897, sec. 4402-4415 (General lien).

Me. Rev. St. 1903, p. 423, sec. 6 of Ch. 43.

Mich. Annotated Stat. 1914, Howell, p. 4137-43, 7378-80, 7397-98, 7481,

7509, 13843-13858. ;

Minn. Gen’l Stat. 1913. Tiffany, Sec. 7069.

Miss. Code of 1906, Sec. 4973-4974. Code 1902, Sec. 4408-4409.

Mo. Annotated Stat., 1906, Sec. 1496; Rev. Stat. 1909 Sec. 5449.

Mont. Revised Codes, 1907, Sec. 5816-5818 (Acts Mar. 7, 1895).

Ney. Gen’l St. 1885 sec. 1065. (from Act Mar. 3, 1866).

N.M. Annotated Stat. 1915, sec. 3373.

Ore. - Laws of 1910, Lord, sec. 7461-7476.

Vt. Public Stat. 1906, Sec. 2654-2656.

Wash. Codes & Stat. 1910, Rem. & Bal., see, 7123, to boom companions, sec.

1162, general.

Wis. Stat. of 1913, sec. 1740. - See act Mar. 5, 1869, Laws 1869 p. 76 Ch. 80.

2. Olive v. State, 86 Ala. 88, 5 So. 653, 4 L. R. A. 33; Sullivan v. Spotswood, 82

Ala. 163, 2 So. 716;

Crane Lbr. Co. v. Bellows, 117 Mich. 482; Wood v. Ayres, 39 Mich. 345, 33 Am.
Rep. 396; Backus Lbr. Co. v. Scanlon-Gipson Lbr. Co., 78 Minn. 438; East
Hoquiam Boom Etc. Co. v. Nelson, 20 Wash.:142; Wisconsin River Log Driv-
ing Asso. v. Comstock Lbr., 72 Wis. 464; Haywood v. Campbell, 72 Wis. 321;
Duluth Lbr. Co. v. St. Louis Boom Etc. Co., 17 Fed. 419.

3. Crane Lbr. Co. v. Bellows, 117 Mich. 482; Beard v. Clarke, 35 Minn. 324, 29
N. W. 142; Merriman v. Bowen, 33 Minn. 455, 23 N. W. 843.. Compare
Kroll v. Nester, 52 Mich. 70, 17 N. W. 700; Shaw v. Bradley, 59 Mich. 199.
(Changed by Statute).

Bearce v. Dudley, 88 Me. 410, 34 Atl. 260.

. Osborne v. Nelson Lbr. Co., 33 Minn. 285, 22 N. W. 540,

. Beard v. Clark, 35 Minn. 324; Walker v. Bean, 34 Minn. 427, 26 N. W. 232;
See Stewart v. Milliken, 30 Mich. 503; McDonald v. Boeing, 80 Mich. 415;
Hodson v. Goodale, 22 Ore. 68.

7. Bearce v. Dudley, 88 Me. 410, 34 Atl. 260; Butterfield v. Gilchrist, 53 Mich. 22.

8. Megquier v. Gilpatrick, 88 Me. 422, 34 Atl. 262; Peters v. Gallagher, 37 Mich. 407

aoe

222 THE FLOTATION OF TIMBER

the other party from liability for the service.' The one
who first places his logs in a stream is entitled to a reasonable
time for the completion of his drive and cannot be subjected
to additional expense by one who subsequently places his
logs in the stream.? Under some statutes it is necessary
to give notice to the owner that his logs are intermingled. *
Failure to care for the intermingled logs affords the basis for
statutory compensation. * The mere fact that the owner
of the intermingled logs has made adequate provision for
the ultimate driving of his logs will not relieve him from
liability to one who had no knowledge of such arrangement, °
unless it be shown that he was exercising reasonable dili-
gence in earing for his drive.*® The character,’ or the
time * of the intermingling is immaterial if it be established
that such intermingling occurred as to make a common drive
essential. One who thus undertakes to drive the logs of
another assumes the responsibility of an ordinary bailee for
the transportation of goods.° He must make as clean a
drive as is customary, ?° and deliver the logs at their proper
destination. " However, they may be driven past their
destination, if separation there is impracticable. % It is not
essential to the recovery of compensation for the driving of
intermingled logs that the one claiming such compensation
shall have been the owner of the logs which were lawfully
in his possession and for the driving of which he was re-

1. Lord v. Woodward, 42 Me. 497; Peters v. Gallagher, 37 Mich. 407; E. W. Backus
Lbr. Co. v. Scanlon-Gispon Lbr. Co., 78 Minn. 438, 81 N. W. 216.

. Megquier v. Gilpatrick, 88 Me. 422, 34 Atl. 262.

. Osborne y. Nelson Lbr., 33 Minn. 285, 22 N. W. 540.

. Hayward v. Campbell, 72 Wis. 321, 39 N. W. 540; See Ames v. Port Huron Log
Driving Etc. Co., 6 Mich. 266. Miller v. Chatterton, 46 Minn. 338, holding
abandonment must be negligent.

5. Foster v. Cushing, 35 Me. 60; See Megquier v. Gilpatrick, 88 Me. 422; Hayward v.
Campbell, 72 Wis. 321.

6. Butterfield v. Gilchrist, 63 Mich. 155, 29 N. W. 682, 53 Mich. 22, 18 N. W.
542; Gibson v. Trow, 105 Wis. 288; Boom Corp. v. Lbr. Co. 27 Ont. L. 131,
4 Ont. W. N. 5, 22 Ont. W. R. 952.

7. Anderson vy. Maloy, 32 Minn. 76, 19 N. W. 387.

8. Wisconsin River Log Driving Asso., v. Comstock Lbr. Co., 72 Wis. 464, 40 N.
W. 146; fF GeR, AA, 707.

9. Foster v. Cushing, 35 Me. 60; Beard y. Clark, 35 Minn. 324, 29 N. W. 142.

10. Weymouth v. Beatham, 92 Me. 525, 45 Atl. 519; Bearce v. Dudley, 88 Me. 410,
34 Atl. 260. But see Boyle v. Musser, 77 Minn. 153, 79 N. W., 664.

11. Bearce v. Dudley, 88 Me. 410, 34 Atl. 260; Doyle v. Pelton, 134 Mich. 398, 96
N. W. 483; Boyle v. Musser, 77 Minn. 153, 79 N. W. 664; Miller v. Chatter-
ton, 46 Minn. 338, 48 N. W. 1109; Osborne v. Nelson Lbr. Co., 33 Minn. 285;
22 N. W. 540.

12. Foster v. Cushing, 35 Me. 60; Beard v. Clarke, 35 Minn. 324, 29 N. W. 142.

m Wh

STATUTORY REGULATION 223

sponsible. ! However, no one but the actual owner of logs
can be held for the cost of driving them.? The proportion
of the whole drive which the intermingled logs constituted
will ordinarily be accepted as a basis for the determination
of a reasonable compensation by a prorating of the cost. °
The rules of procedure and evidence in such cases follow
general principles. *

§152. Log Driving and Booming Companies. About
the beginning of the nineteenth century the necessity of
special legislation to encourage the improvement of streams
and to regulate the driving of logs by companies or associa-
tions was recognized by the enactment of laws in several
states.° The early laws granted special privileges to
specific corporations, but later general laws were passed
under authority of which associations of this character might
be formed. * It has been held that a boom company may

1. Tibbets. v. Tibbets, 46 Me. 365; Wisconsin Log Driving Asso. v. Comstock
Lbr. Co. 72 Wis. 464, 40 N. W. 146, 1 L. R. A. 717; cf. Dwinel v. Fisk, 9 Me.
21 (Logs cut in trespass).

2. Marsh v. Flint, 27 Me. 475; Edson v. Gates, 44 Mich. 253, 6 N. W. 645.

But see, O’Brien v. Glasow, 72 Minn. 135, 75 N. W. 7. (Owner of mark eannot
escape on ground that mark was put on for security only). Compare, Boyle
v. Musser, 77 Minn. 153, 79 N. W. 664 (Mark of dissolved partnership used
by one of former members).

3. Bearce v. Dudley, 88 Me. 410, 34 Atl. 260; E. W. Backus Lbr. Co. v. Scanlon-
Gipson Lbr. Co., 78 Minn. 438, 81 N. W. 216; See Crane Lbr. Co. v. Bellows,
117 Mich. 482, 76 N. W. 67.

4, Marsh v. Flint, 27 Me. 475; Bellows v. Crane Lbr. Co., 131 Mich. 630, 92 N. W.
286; Bellows v. Crane Lbr. Co., 126 Mich. 476, 85 N. W. 1103; O’Brien v. Glas-
gow, 72 Minn. 135, 75 N. W. 7; Goff v. Brainerd, 58 Vt. 468, 5 Atl. 393; Norris
v. U. S., 44 Fed. 735; Cockburn v. Imperial Lbr. Co., 30 Can. Sup. Ct. 80
(Revs’g 26 Ont. App. 19).

Me. Act Feb. 11, 1832, Session Laws 1832, p. 6, Ch. 8.
5. Mass. Act of Mar. 11, 1805, incorporation Saco Boom Co, (Private & Spec.
St. Mass., Boston, 1805, Vol. 3, p. 522).
Compare Act May 16, 1883, S. L., p. 484, ch. 183. ;
N. Y. Act Mar. 24, 1801, Laws 1801, p. 74. Act April 4, 1806, Ch. 128. See
Laws of N. Y., Webster & Skinner, Albany, 1806; Vol. 4, p. 525.
6. Ark. Digest of Statutes, 1904, Kirby, Ch. 132, Secs. 6522-6544.
Calif. Act Mar. 3, 1881, Laws of 1881, p. 25, (Repealed 1901). See Gen. Law
1914. H. & D., p. 221.

Fla. Compare Compiled Laws 1914, sec. 2543.

Idaho Act Feb. 28, 1899, Laws 1899, p. 332 (Rev. Codes 1908, Secs. 872-873,
2830-32).

Iowa Compare Code 1897, sec. 2032, riparian owner may construct.

Me. Compare Rev. St. 1903, ch. 42, sec. 5, p. 419 (Companies on Saco liable

for obstruction).

Mass. Revised Laws 1902, p. 823, sec. 17, Harbor & Land Com’rs may license

booms in Connecticut River.

Mich. ° Act Feb. 4, 1864, Sess. L. Mich, 1864, p. 23, Act. 16; Act. Apr. 5, 1869,

Sess. L. 1869, p. 287, Act No. 149 (See Am’d’ts Apr. 17, 1871, p.
326; May 13, 1879, p. 181; Apr. 15, 1881, p. 75; Apr. 26, 1887, 8S.
: (Footnote 6 continued on next page)

224 THE FLOTATION OF TIMBER

enjoy the benefits of general acts regulating the driving of
logs and the collection of tolls, as well as of the special acts
regulating incorporated companies.!' There have been
numerous court decisions defining the status, powers and lia-
bilities of such companies and corporations. ? It has been
held that a boom includes not only the floating logs, spars,
or timbers used to confine other logs to a certain portion
of the surface of a body of water, * but also the piling and
other structures which hold the enclosing logs in place. *

(Footnote 6 concluded from preceding page) %
L. 1887, p. 98, No. 91, and Am’n'dt Apr. 4, 1889, Laws 1889, p. 49, Act.
42; Annotated, Stat. 1913, P. 7476-7504, and secs. 4143, 4163).
Minn. Act June 26, 1889. Sess. L. 1889, p. 218, Act No. 188. Cf. Act. Mar. 2,
1855, Stat. Minn. 1849-58, p. 826. ,
See Gen’! St. 1913, Tiffany, Secs. 6261-6267 and cf. 5478, side booms.
Mo. Annotated Statutes 1906, secs. 1492-1516. Rev. Stat. 1909, secs. 3465-
3488.
Nev. Act Mar. 3, 1866, Laws of 1866, p. 198, Ch. 99 (Gen. St. 1885, secs. 1064-
71). :
N.Mex. Annotated Statutes 1915, secs. 3372-3373.
N.Dak. Compare Compiled Laws 1913, sec. 3056. (General authority to any-
one provided no interference with navigation). See Rev. Code Dak.
Terr. 1877, ch. 32, p. 145.
Pa. Purdon’s Digest, 1903, Rev. by Stewart, pp. 2342, 2354-55.
S. Dak. Compare Rev. Penal Code, 1903, sec. 3196. (General authority to any-
one provided no interference with navigation).
Wash. Annot. Code 1910, Rem. & Bal., secs. 7110-7126; cf. secs. 7106-7109
(Tolls for use of logging road). 4378-4390.
W. Va. Chap. 121 of 1877 and amendments.See Code 1906, secs. 2498-2531;
Code of 1913, Secs. 3115-3148.
Wis. Statutes 1913, sec. 1777e.
Wyo. Compare Comp. Stat. 1910, Mullen, sec. 828, ch. 67.
See Watts v. Tittabawassee Boom Co., 52 Mich. 206; Anderson vy.
Thunder Bay River Boom Co., 61 Mich. 489.
1. Hall v. Tittabawassee Boom Co., 51 Mich. 377, 16 N. W. 770. But see Garth
Lbr. & Shingle Co. v. Johnson, 151 Mich. 205, 206.
2. Me. Sibley v. Penobscot Lumbering Assoc., 93 Me. 399, 45 Atl. 293; In re
Penobscot Lumbering Assoc., 93 Me. 391, 45 Atl. 290.
Mich. Ames y. Port Huron Log Driving Etc. Co., 6 Mich. 266.
Minn. Osborne v. Knife Falls Boom Corp., 32 Minn. 412, 21 N. W. 704, 50 Am.
Rep. 59u. :
Pa. Genesee Fork Imp. Co. v. Ives, 144 Pa. St. 114, 22 Atl. 887, 13 L. R. A.
427; Power’s Appeal, 23 Wkly Notes Cas. (Pa.) 485.
Wash. Nicomen Boom Co. v. North Shore Boom Etc. Co., 40 Wash. 315, 82
Pac. 412; Grays Harbor Boom Co. v. McAmmant, 21 Wash. 465,
58 Pac. 573; East Hoquiam Boom Etc. Co. v. Neeson, 20 Wash. 142,
54 Pac. 1001.
W. Va. Miller v. Hare (W. Va.) 28 S. E. 722 (Boom not a private nuisance).
U.S. Lindsay Etc. Co. v. Mullen, 176 U. 8S. 126, 20 S. Ct. 325, 44 L. Ed. 400;
Sands v. Manistee River Imp. Co., 123 U. 8S. 288, 8 S. Ct. 113, 31
L. Ed. 149; Duluth Lbr. Co. v. St. Louis Boom Etc. Co., 17 Fed.
419, 5 McCrary 382,
Can. Queddy River Driving & Boom Co. v Davidson, 10 Can. Sup. Ct. 222.
3. Clark v. Nelson Lbr. Co., 34 Minn. 289, 10 Am. & Eng. Corp. Cas. 399; Power's
Appeal, 125 Pa. St. 175, 187, 17 Atl. 254, 11 Am. St. Rep. 882; See Gasper v.
Heimbach, 59 Minn. 102, 60 N. W. 1080, 53 Minn. 414, 55 N. W. 559.
4. John Spry Lbr. Co. v. Steam Barge C. H. Green, 76 Mich. 320; See Rollins v"
Clay, 33 Me. 132, 138; Farrand v. Clarke, 63 Minn. 181, 65 N. W. 361.

LOG DRIVING AND BOOMING COMPANIES 225

Booms have been considered real estate 1 and are taxable
as such. ?

Since boom companies are considered to have a quasi
public character, * they may be authorized to condemn
real estate when essential to the performance of their func-
tions. * A legislature cannot authorize the flowage>® of
private lands or the use of the banks ® without compensa-
tion; nor can it authorize a boom company to assume con-
trol over the logs of those who do not desire the services of
the company, if such logs do not interfere with the legitimate
operations of the company.’ So far asis consistent with
the Federal constitution and laws enacted by congress, the
legislatures of the several American states may grant ex-
elusive rights for the driving and booming of logs in streams
flowing through or lying within a state, * and it has been
held that on a stream wholly within a state the legislature
may authorize boom companies to completely obstruct
navigation. °

1. Peoples Ice Co. v. Steamer Excelsior, 43 Mich. 336; Brig City of Erie v. Canfield,
27 Mich. 479.

2. Hall v. Benton, 69 Me. 346.

3. Heiberg v. Boom Co. 127 Minn. 8, 148 N. W. 517; Osborne v. Boom Corp. 32
Minn. 412, 21 N. W. 704, 50 Am. Rep. 590;

West Branch Boom vy. Penn. Joint Lbr. Etc. Co., 121 Pa. St. 158, 6 Am. St. Rep.
766; Cohn v. Wausau Boom Co. 47 Wis. 314; Duluth Lbr. Co. v. St. Louis
Boom Etc. Co., 17 Fed. 419, 5 McCrary 382; Lynch v. Richards, 38 N. Brunsw.
169.

4. Olive v. State, 86 Ala. 88; Lawler v. Baring Boom Co. 56 Me. 445; Benjamin v.
Manistee River imp. Co., 42 Mich. 628; Cotton v. Miss. Etc. Boom Co., 22
Minn. 372; North River Boom Co. v. Smith (Wash.) 45 Pac. 750.

5. Bradley v. Tittabawassee Boom Co., 82 Mich. 9; Grand Rapids Booming Co. v.
Jarvis, 30 Mich. 308; Middleton v. Flat River Booming Co., 27 Mich. 533;
Weaver v. Miss. Etc. Boom Co., 28 Minn. 534; Rogers v. Coal River Boom
Etc. Co. (W. Va. 1896) 23 S. E. 919.

6. Cohn v. Wausau Boom Co., 47 Wis. 314; See Morgan v. King, 35 N. Y. 454, 91
Am. Dec. 58; Weise v. Smith, 3 Ore. 445, 8 Am. Rep. 621.

7. Ames v. Port Huron Log Driving Etc. Co., 11 Mich. 139, 83 Am. Dec. 731;
Boom Corp. v. Lbr. Co. 27 Ont. L. 131, 4 Ont. W. N. 5, 22 Ont. W. R. 952.

8. Manistee River Imp. Co. v. Sands, 53 Mich. 593; Green v. Knife Falls Boom
Corp., 35 Minn. 155; Osborne v. Knife Falls Boom Corp., 32 Minn. 412, 21
N. W. 704, 50 Am. Rep. 590; Wisconsin R. Imp. Co. v. Manson, 43 Wis. 255,
28 Am. Rep. 542. ; .

But see Boom Corp. v. Lbr. Co. 162 Fed. 287, 89 C. C. A. 267 (Minn-Can. bound-
ary.)

9. Me. Lawler v. Baring Boom Co., 56 Me. 445; Treat v. Lord, 42 Me. 552, 66

Am. Dec. 298.

Mich. Atty. Gen'’l. v. Evart Booming Co., 34 Mich. 462.

Wis. Keator Lbr. Co. v. St. Croix Boom Corp., 72 Wis. 62, 7 Am. St. Rep.
837; Edwards v. Wausau Boom Co. 67 Wis. 463; Black River Imp.
Co. v. La Crosse Booming Etc. Co., 54 Wis. 659. 41 Am. Rep. 66;
cf. Enos. v. Hamilton, 24 Wis. 658.

U.S. Poundv. Turck, 95 U. S. 459; U. S. v. Bellingbam Bay Boom Co., 72
Fed. 585; U. S. v. Beef Slough Mfg. Co., 8 Biss. 421; Heerman v. Beef
Slough Mfg. Co., 1 Fed. 145, 8 Biss. 335.

226. THE FLOTATION OF TIMBER

§153. The Collection of Tolls by Driving and Boom-

ing Companies. Both the special acts and the general

acts regulating the driving and booming of logs by associa-
tions and corporations provide for the collection of tolls to
reimburse the initial and subsequent expenses of improving
the stream and the cost of operation, together with what is
considered a reasonable profit.1 When the legislature
merely fixes a maximum toll, the question of what is a
reasonable charge is a proper one fora jury.” The courts
have generally construed acts of this- character liberally
enough to authorize all acts necessary to a practicable and
profitable operation by a company; * yet the grantee must
be determined with sufficient certainty * and an act pro-
viding for a toll in the form of a public tax for special pur-
poses was held unconstitutional in North Carolina on the

ground that some of those taxed were deriving no benefit

from the improvement. °*

While the collection of a toll is dependent upon the ful-
fillment of the obligations of the company or corporation as
to the improvement of the stream or the care of the logs
during the drive; * a Pennsylvania court has held that one
using a stream for log driving could not escape the payment
of tolls to a regularly organized stream improvement com-

1. Ala. Cf. Galloway v.-Henderson, 136 Ala. 318, 34 So. 957; Turne: v. Mobile,
135 Ala. 128, 33 So. 132 (Lien for boomage).
Me. Machias Boom v. Holway, 89 Me. 236, 36 Atl. 378; Penobscot Boom Corp.
v. Fenobscot Lumbering Assoc., 61 Me. 533.
Mich. Hall v. Tittabawassee Boom Co., 51 Mich. 377, 16 N. W. 770; Pere
Marquette Boom Co. v. Adams, 44 Mich. 403, 6 N. W. 857; Benjamin
v. Manistee River Imp. Co., 42 Mich. 628.
Pa. Genesee Fork Imp. Co. v. Ives, 144 Pa. St. 114, 22 Atl. 887, 13 L. R. A.
427. See Boom v. Dodge, 31 Pa. 285 (St. not retroactive).
Wis. Falls Mfg. Co. v. Oconto Riv. Imp. Co., 87 Wis. 134; Wisconsin Log
= Driv. Assoc. v. Comstock Lbr. Co., 72 Wis. 464; Wausau Boem Co.
v. Plummei, 49 Wis. 115, 5 N. W. 26; Wisconsin R. Imp. Co. v. Mason
43 Wis. 255, 28 Am. Rep. 542. .
Can. See South Bay Boom Co. v. Jewett, 10 N. Brunsw. 267.
For definition of “raftage’’ and “‘boomage,” see Bangor Boom Corp.
v. Whitney, 29 Me. 123; Farrand v. Clark, 63 Minn. 181, 65 N. W.
361; Moss Point Lbr. Co. v. Thompson, 83 Miss. 499, 35 So. 828.
2. Sturgeon River Boom Co. v. Nester, 55 Mich. 113, 20 N. W. 815. See Boom
Co. v. Lbr. Co. 146 Wis. 559, 132 N. W. 1118 (Discrimination in rate).

3. Bassett v. Carleton, 32 Me. 553, 54 Am. Dec. 605; Androscoggin River v. Haskell
7 Me. 474; Northwestern Imp. Etc. Co. v. O'Brien, 75 Minn. 335, 77 N. W.
989.

. Sellers v. Union Lumbering Co., 39 Wis. 525.

. Hutton v. Webb, 124 N. C. 749, 33 S. E. 171; 126 N. C. 897, 36 S. E. 341.

. Dam Co. v. Clothing Co. 102 Me. 257, 66 Atl. 537; Swift River Etc. Imp. Co.
v. Brown, 77 Me. 40; Susquehanna Boom Co. v. Dubois, 58 Pa. St. 182. See
Dam Co. v. Excelsior Co. 105 Me. 249, 74 Atl. 115.

Oo em

TOLLS FOR THE DRIVING OF LOGS 227

pany, on the ground that few improvements had been made
and that he could have driven his logs without the help of
such improvements.! The tolls cannot be collected if the
improvements are not maintained in fairly effective condi-
tion, ? nor if they are made for some other purpose than
that of preparing the stream for log driving.* It has also
been held that the collection of tolls was dependent upon
the establishment of an agreement where there was no
statute fixing the rates.* However, the required agree-
ment may be inferred from the conduct of the parties and the
circumstances attending the driving. The state legislature
has the power to fix the rate of compensation, > but where
the state has not prescribed the rate, the court and jury will
determine a reasonable rate, °if the rate has not been fixed
by contract.’ <A driving or booming company ordinarily
has a lien on the logs for the toll charges. * The contract
must be substantially fulfilled before the lien may be en-
forced. ° As in other cases in which a lien is given by
statute, the lien must be enforced in strict accordance with
the requirements of the statute. ?° Such a lien may be
waived either expressly or by implication." A booming

1. Genesee Fork Imp. Co. v. Ives, 114 Pa. St. 114, 22 Atl. 887, 13 L. R. A. 427.

2. St. Louis River Dalles Imp. Co. v. Nelson Lbr. Co., 51 Minn. 10, 52 N. W. 976;
Lehigh Coal Etc. Co. v. Brown, 100 Pa. St. 338.

3. Matter of Little Bob River, 23 Ont. App. 177. Cf. Franck v. Lbr. Co. 67 Wash.
553, 122 Pac. 7; Mackey v. Sherman, 8 Ont. 28.

4. Ocqueoc Imp. Co. v. Mosher, 101 Mich. 473, 59 N. W. 664; Coffin v. Robinson,
106 Me. 54, 76 Atl. 949; Cf. Mfg. Co. v. Lbr. Co. 12 Ont. L. 163, 8 Ont. W. R. 35.

5. Machias Boom vy. Sullivan, 85 Me. 343; Side Booms v. Haskell, 7 Me. 474; West
Branch Lumbermen’s Exch. v. Fisher, 150 Pa. St. 475; See Merritt v. Knife
Falls Boom Corp. 34 Minn. 245. Boom Co. v.. Lbr. Co., 146 Wis. 559,
132 N. W. 118; Lbr. Co. v. Boom Co. 76 Wis. 76, 45 N. W. 18.

6. Pere Marquette Boom Co. v. Adams, 44 Mich. 403; Underwood Lbr. Co. v.
Pelican Boom Co., 76 Wis. 76; Wausau Boom Co. v. Plummer, 49 Wis. 115.

7. Haughton v. Busch, 101 Mich. 267; Keystone Lbr. Co. v. Dole, 43 Mich. 374;
Ames v. Port Huron Log Driving Etc. Co., 6 Mich. 266; Penobscot Boom Corp.
v. Penobscot Lumbering Assoc., 61 Me. 533; Gill v. Johnston Lbr. Co., 151
P. A. St. 534; Weatherby v. Meikeljohn, 56 Wis. 78; Sellers v. Union Lumber-
ing Co., 39 Wis. 525.

_8. Hunter v. Perry, 33 Me. 159; Kroll v. Nester, 52 Mich. 70; Johnson v. Cranage,
45 Mich. 14; Robson v. Miss. R. Logging Co., 61 Fed. 893.

9. Lewiston Steam Mill Co. v. Richardson Lake Dam Co., 77 Me. 337; Haughton
v. Busch, 101 Mich. 267; compare Swift River Etc. Imp. Co. v. Brown, 77 Me.
40; St. Louis River Dalles Imp. Co. v. Nelson Lbr. Co., 51 Minn. 10.

10. Clark v. Adams, 33 Mich. 159; Chapman vy. Keystone Lbr. Etc. Co., 20 Mich.
358; Griffin v. Chadbourne, 32 Minn. 126; Overbeck v. Calligan, 6 Wash.
342; Tewksbury v. Bronson, 48 Wis. 581.

‘1. Tyler v. Blodgett Etc. Lbr. Co., 78 Mich. 81; Au Sable River Boom Co. v. San-
born, 36 Mich. 358; Hutchins v. Olcutt, 4 Vt. 549, 24 Am. Dec. 634. But see
Roberts v. Wilcoxson, 36 Ark. 355; Prentiss v. Garland, 67 Me. 345; Haughton
v. Busch, 101 Mich. 267.

228 THE FLOTATION OF TIMBER

company may be required by law to survey all logs in its
boom before enforcing the collection of tolls,’ but an
actual measurement or scaling of all logsis not necessary. ?
Defects in the boom which did not affect the particular lot
of logs for which collection of toll is sought cannot be urged
as a defense against the liability for such tolls. *

Some laws specifically authorize stream improvement
companies to drive and boom logs which interfere with their
operations ‘ and afford a lien for the customary tolls *
irrespective of any agreement for the performance of such
services.® However, toll cannot be collected for the
driving of logs which do not interfere with the operations of
the company,’ or for the driving of which the company
cannot be held to assume responsibility, * especially if the
company is notified that its assistance is not desired. * The
right to collect tolls where no contract exists is dependent
upon a public grant or license. 1° The statutes providing
for the incorporation of log driving and booming companies
often authorize the stoppage of the drive on the logs of a
delinquent patron, but such stoppage is not always practic-
able and an action will lie in favor of the company for the
recovery of a toll on the logs driven." As indicated above

1. Penobscot Boom Corp. v. Lamson, 16 Me. 224; 33 Am. Dec. 656; Androscoggin
River Etc. v. Haskell, 7 Me. 474.
. Wausau Boom Co. v. Plumer, 49 Wis. 115, 5 N. W. 26.
. Penobscot Boom Corp. v. Wadleigh, 16 Me. 235; Vsti sate River Side Booms
Co. v. Weld, 6 Me. 105.

4. McDonald v. Boeing, 80 Mich. 416; Sturgeon River Boom Co. v. Nester, 55
Mich. 113; Beard v. Clarke, 35 Minn. 324; Green v. Knife Falls Boom Corp.,
35 Minn. 155; Walker v. Beam, 34 Minn. 427; Merriman v. Bowen, 33 Minn.
455; Anderson v. Maloy, 32 Minn. 76; Hodson v. Goodale, 22 Ore. 419. See
Cockburn v. Lbr. Co. 30 Can. Sup. Ct. 80 (Revs’g Ont. App. 19) (May resort
to arbitration instead of breaking jam).

5. Kroll v. Nester, 52 Mich. 70; Hall v. Tittabawassee Boom Co. 51 Mich. 377;
Miller v. Chatterton, 46 Mich. 338; Clark v. Adams, 33 Mich. 159; Chapman
v. Keystone Lbr. Etc. Co., 20 Mich. 358; Chesley v. DeGraff, 35 Minn. 415;
Osborne vy. Nelson Lbr. Co., 33 Minn. 285; Wisconsin River Log Driving
Assoc. v. Comstock Lbr. Co., 72 Wis. 464.

6. St Louis Dalles imp. Co. v. Nelson Lbr. Co., 43 Minn. 130, 44 N. W. 1080;
East Hoquiam Boom Etc. Co. v. Neeson, 20 Wash. 142, 54 Pac. 1001; Duluth
Lbr. Co. v. St. Louis Boom Etc. Co., 17 Fed. 419, 5 McCrary 382.

(e Peters v. Gallagher, 37 Mich. 407. See Lbr. Co. v. Boom Corp. 115 Minn. 296,
13 N. W. 259.

8. Chase v. Dwinal, 7 Me. 134, 20 Am. Dec. 352.

9. Washougal River Imp. Co. v. Skamania Logging Co., 23 Wash. 89, 62 Pac.
450; Gray’s Harbor Boom Co. v. ohare gs 21 Wash. 465, 58 Pac. 573.

10. Lamprey v. Nelson, 24 Minn. 304.

11. Bear Camp River Co. v. Woodman, 2 Me. 404; West Branch Logging Co. v.
Strong, 196 Pa. St. 51, 46 Atl. 290. Cf. Mfg. Co. v. Lbr. Co. 12 Ont. L. Rep
163, 8 Ont. W. R. 35; Re. Mfg. Co 9 Ont. W. R. 99.

a]

TOLLS FOR THE DREVING OF LOGS 229

a sale of a part or all of the logs to satisfy a claim for tolls
must be made in strict accordance with all material re-
quirements of the statute authorizing a lien,’ but unim-
portant irregularities will not invalidate a sale. ”

§154. The Liability of Driving and Booming Com-
panies. The specific charter or the general statute author-
izing the operations of such companies ordinarily define in
more or less comprehensive form the duties to be performed
and the liabilities to be assumed by them.* The statutes
often define what logs are to be driven,‘ the time when
they must be driven ° and the manner in which they are
to be sorted and delivered. ® If the charter provides that
the company may drive all logs and timber in a certain
stream, the company assumes full liability for all logs if it
undertakes to carry out the full privilege conferred by the
charter.’ A driving or booming company is not liable asa
common earrier, ® but is liable for any loss due to a lack
of reasonable care in the improvement of the stream or in
subsequent operations. ® There is a division of opinion
as to whether the burden of proving ordinary care must be
assumed by a log driving or booming company. ” <A com-
pany cannot be held liable if it be shown that ordinary dili-
gence was used or that the loss was due to unavoidable cir-.

1. Bennett’s Branch Imp. Co. Appeal, 65 Pa. St. 242.

2. Hunter v. Perry, 33. Me. 159. See also Kennebec Log Driving Co. v. Burrill,
18 Me. 314.

3. Mississippi Etc. Boom Co. v. Prince, 34 Minn. 79, 24 N. W. 361; West Branch
Boom Co, v. Dodge, 31 Pa. St. 285.

Lynch vy. Richards, 38 N. Brunsw. 242. °

4. Patterson v. Penobscot Log Driving Co., 71 Me. 44; St. Louis Dalles Imp. Co.

v. Nelson Lbr. Co. 43 Minn. 130, 44 N. W. 1080.
Murray v. Boom Co. 75 Wash. 605, 137 Pac. 130.

5. Patterson v. Penobscot Log Driving Co., 71 Me. 44; See Bonifay v. Hassell,
100 Ala. 269.

6. Machias Boom v. Sullivan, 87 Me. 506, 33 Atl. 13.

7. Weymouth v. Penobscot Log Driving Co., 71 Me. 29; But see West Branch
Boom Co. v. Pennsylvania Joint Lbr. Etc. Co., 121 Pa. St. 143, 15 Atl. 509,
6 Am. St. Rep. 766.

8. Mann v. White River Log Etc. Co., 46 Mich. 38, 8 N. W. 550, 41 Am. St. Rep.
141; Chesley v. Mississippi Etc. Boom Co., 39 Minn. 83, 38 N. W. 769.

9. Harold v: Jones, 86 Ala. 274;‘Sullivan vy. Jernigan, 21 Fla. 276; Goodin v. Ky.
Lbr. Co., 90 Ky. 625, 12 Ky. L. Rep. 573; Palmer yv. Penobscot Lumbering
Assoc., 90 Me. 193, 38 Atl. 108; Holway v. Machias Boom, 90 Me. 125; 37
Atl. 882; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573;: Foster v. Cushing,
35 Me. 60; Weld v. Androscoggin R. Side Booms, 6 Me. 93; Hebard v. Shaw,
123 Mich. 514; 82 N. W. 250; Hopkins v. Butte Etc. Com’l Co., 13 Mont.
223; Tingley v. Bellingham Bay Boom Co., 5 Wash. 644, 32 Pac. 737, 33 Pac.
1055; Crane v. Fry, 126 Fed. 278, 61 C. C. A. 260.

10. Must assume: Chesley v. Mississippi Etc. Boom Co., 39 Minn. 83, 38 N. W.
769. Contra: Melendy v. Ames, 62 Vt. 14, 20 Atl. 161.

230 THE FLOTATION OF TIMBER

cumstances.! Any negligent or unnecessary obstruction
of the stream by a boom, or improvement works, ? or any
unnecessary detention or interference with logs for the
driving of which the company is not responsible, * will
render the company liable in damages to the party injured.
This liability is subject to the right of a reasonable detention
for the purpose of sorting from the intermingled logs those -
for which the company is responsible.* Boom companies
are not liable for damages resulting from the manner in
which logs are driven or boomed by a contractor, if the in-
jury was not proximately due to some requirement in the
contract as to the time or manner of fulfillment. *® A char-
tered boom company ordinarily has no paramount right of.
use in a stream but only a concurrent right which is limited
by the rights of riparian owners,® mill owners,’ and
others using the stream for navigation purposes.* How-

1. Penobscot Boom Corp. v. Baker, 16 Me. 233; Brown v. Susquehanna m Co.,
109 Pa. St. 57, 1 Atl. 156; 58 Am. Rep. 708; Leigh v. Holt, 5 Biss. (U. S.) 338.
See Lbr. Co. v. Boom Corp. 72 Wis. 62, 38 N. W. 529, 7 Am. St. Rep. 837.

2. Sullivan v. Jernigan, 21 Fla. 264; Watts v. Tittabawassee Boom Co., 52 Mich.
203, 17 N. W. 809; Pickens v. Coal River Boom Etc. Co., 51 W. Va. 445, 41
S. E. 400, 90 Am. St. Rep. 819. See U.S. v. Bellingham Bay Boom Co., 176
U. S. 211, 20 Sup. Ct. 343 (Trip in boom not free passage, injunction, harbor
act).

3. McPheters v. Moose River Log Driving Co., 78 Me. 329 (Damages include
wages and board of men, etc.); Ames v. Port Huron Log Driving Etc. Co.,
6 Mich. 266; West Branch Boom Co. v. Dodge, 31 Pa. St. 285; Mason v.
Boom Co. 16 Fed. Cas. Mo. 9, 232, 3 Wall. Jr. 252.

See also Lbr. Co. v. Dam Co. 115 Minn. 484, 132 N. W. 1126; Lawber v. Wells,
13 How. Pr. (N. Y.) 454; Murray v. Boom Co. 75 Wash. 605, 137 Pac. 130;
Shields v. Lbr. Co. 48 Wash. 679, 94 Pac. 644.

4. West Branch Boom Co. vy. Penn. Joint Lbr. Co., 121 Pa. St. 143, 15 Atl. 509,
6 Am. St. Rep. 766; Edwards v. Wausau Boom Co., 67 Wis: 463, 30 N. W. 716;
Nester v. Diamond Match Co. 105 Fed. 567, 44 C. C. A. 606, 52 L. R. A. 950;
See also Morgan vy. King. 18 Barb. (N. Y.) 277; Powers’ Appeal. 125 Pa. St.
175, 17 Atl. 254, 11 Am. St. Rep. 882, 23 Wkly Notes Cas. (Pa.) 485. —

5. McDonnell v. Rifle Boom Co., 71 Mich. 61; Moore v. Sanborne, 2 Mich. 519,
59 Am. Dec. 209; Pierpont v. Loveless, 72 N. Y. 211; Bearrs v. Sherman. 56
Wis. 55. ”

6. Plummer vy. Penobscot Lbr. Asso., 67 Me. 363; White River Logging Co. v. Nel-
son, 45 Mich. 578; Grand Rapids Boom Co. v. Jarvis, 30 Mich. 308; Bald
Eagle Boom Co. y. Sanderson, 811/ Pa. St. 402; Hackstack v. Keshena Imp.
Co., 66 Wis. 439.

7. Buchanan vy. Grand River Etc. Log Running Co., 48 Mich. 364; Att'y Gen'l
v. Evart Booming Co., 34 Mich. 462; Thunder Bay Booming Co. v. Speechly,
31 Mich. 336, 18 Am. Rep. 184; Middleton v. Flat River Booming Co., 27 Mich.
533. See Pearson v. Rolfe, 76 Me. 380; Koopman v. Blodgett, 70 Me. 610;
Kroll v. Nester, 52 Mich. 70; Beard v. Clarke, 35 Minn. 324; Merriman v.
Bowen, 33 Minn. 455; Volk v. Eldred, 23 Wis. 410.

8. See references under (7) and also Brown v. Kentfield, 50 Cal. 129; Stevens
Point Boom Co. v. Reilly, 46 Wis. 237, 44 Wis. 295; Harrington v. Edwards,
17 Wis. 586, 84 Am. Dec. 768; Atlee v. Union Packet Co., 21 Wall. (U. 8.)
389; Beliveau v. Levasseur, 1 Revue Legale (Quebec) 720.

LIABILITY OF LOG DRIVING COMPANIES 231

ever, the company will not be liable for damages to riparian
owners or others if it can show the exercise of reasonable
precaution against injury to others.' A driving or boom-
ing company will ordinarily be liable for damages caused a
riparian owner through the raising of the water by dams
at a time when the natural flow of the stream would not be
sufficient to float logs, ? but special privileges of this char-
acter may be granted to a company by the legislature. *

§155. Scattered and Stranded Logs. Under the
common law the bed of a non-navigable stream is owned by
the riparian owners on each side to the middle thread of the
stream. From efforts of courts in America to follow the
principles of the law as established in England and at the
same time conform to the reasonable requirements of
changed conditions great confusion and irreconcilable con-
flict of decisions have arisen. Some courts have held that
those owning land adjoining non-tidal navigable streams
owned the bed of the stream to the middle thread, some
that the riparian owner controlled the land to the low water
mark, and others that the boundary to the lands of riparian
proprietors was at the high water mark. By high water
mark is here meant, not the highest point reached by the
water in a time of freshet, but the elevation at which the
water stands for a period of the year sufficient to prevent
the growth of perennial vegetation. Some decisions have
held that the line marking the ordinary stage of water
should constitute the boundary of riparian owners. The

7

1. Harold v. Jones, 86 Ala. 274 5 So. 438, 3 L. R. A. 406; White River Log Etc.
Co. v. Nelson, 45 Mich. 578; Haines v. Welch, 14 Ore. 319; Heator Lbr. Co.
v. St. Croix Boom Corp., 72 Wis. 62, 7 Am. St. Rep. 837; Field v. Apple River
Log Driving Co., 67 Wis. 569 (Injury not trespass).

But see, Baumgartner v. Sturgeon River Boom Co. (Mich.) 79 N. W. 566 (Hold-
ing that it was unnecessary to show negligence on the part of the boom com-
pany, if damage due to raising of water by boom, nor was it necessary to plead
no contributory negligence on part of plainti:f.)

And see Bowers v. Miss. & Rum R. Boom Co. (Minn.) 81 N. W. 298. (Boom
company liable for injury though piling not on Bowers’ land, and Bowers given
successive actions for the continuing injuries).

2. Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, 18 Am. Rep. 184;
Middleton v. Flat River Booming Co., 27 Mich. 533; See Beard v. Clarke
35 Minn. 325; Merriman v. Bowen, 33 Minn. 455; Hackstack v. Keshena
Imp. Co., 66 Wis. 439.

.3. Stevens Point Boom Co. v. Reilly, 44 Wis. 295, 46 Wis. 237, 49 N. W. 978

232 THE FLOTATION OF TIMBER

high water mark rule is undoubtedly the most satisfactory. ?
The common law has been specifically modified by statute
in Maine and Massachusetts so as to extend the title of
riparian proprietors to low water mark even on tidal waters.’
A riparian owner may rightfully take and use drift stuff
which lodges upon the shores adjacent to his land, whether
the stream be tidal or only navigable in fact; but material
which has merely escaped from the possession or control of
its owner and has not been abandoned is not subject. to

appropriation by a riparian owner as drift stuff.* Under -

the common law a riparian owner cannot legally appro-
priate logs, lumber or other timber products stranded upon
the banks of a lake or stream but not abandoned by the
owner. * In some American jurisdictions it has been held
that an owner of personal property that has been unavoid-
ably washed upon shores owned by another has a common
law right to remove the same, while in other American
states such entry will be held to constitute trespass.° Of
course the right of removal may be acquired by contract. 6

§156. Statutory Regulation of the Disposal of Floated
Timber over which the Owner has Lost Control. The
necessity of statutory regulation as to the disposal of scat-
tered or stranded timber became apparent early in the de-
velopment of the lumber industry in New England. An
act passed by the General Assembly of Connecticut on May

14, 1752, contained comprehensive provisions as to the

course to be pursued regarding timber products stranded
along the Connecticut River, prescribed rates of compensa-

1. Shively v. Bowlby, 152 U.S. 1: Barney v. Keokuk, 94 U. S. 324. For con-
flicting citations see Am. & Eng, Enc. of Law, 2d Ed., Vol. 4, pp. 823-828;
Cyc. of Law & Proc., Ist Ed., Vol. 5, pp. 894-897. See also D. S. v. Roth,
2 Alaska 257.

2. See citations in Am. & Eng. Ency. of Law, 2d Ed., Vol. 4, p. 820; also Vol. 21,
Dp. 437; Cyc. of Law & Proc., Vol. 5, 893.

38. Lbr. Co. v. Fix. (Ark.) 126, S. W. 287; Norman v. Lbr. Co. 22 Ida. 711, 128
Pac. 85; Lbr. Co. v. Stout, 134 La. 987, 64 So. 881; Bennett v. Pulpweod Co.
181 Mich. 33, 147 N. W. 490; Timber Co. y. Lbr. Co. 117 Minn. 355, 135 N.W.
1132 See Watson v. Knowles, 13 R. I. 639, 641; Barker v. Bates, 13 Pick. (Mass.)
255; Creagh v. Bass, (Ala.) 67 So. 288; Voisin v. Lbr. Co. 131 La. 775, 60 So.
241.

4. West Branch Lumbermen’s Exch. v. McCormick Estate, 1 Pa. Dist. 542; com-
pare Eastman v. Harris, 4 La. Ann. 193; Deadrick v. Oulds, 86 Tenn. 14,
6 Am. St. Rep. 812: Whitman v. Lifting Co. 152 Mich. 645, 116 N. W. 614,
20 L. R. A. N. S. 984.

5. Cyclopedia of Law & Proc., Ist Ed., Vol. 38; p. 1057.

6. Bradley v. Tittabawassee Boom Co., 82 Mich. 9, 46 N. W. 24. See Tome v.
Dubois, 6 Wall. 548 (Sawing of logs after notice by owner not to saw any more.)

ea

a

TIMBER LOST OR ESTRAY 233

tion for the salvage of such products, and provided for a
forfeiture if the owner did not claim the property and dis-
charge the lien within six months after the timber was taken
up.! Similar acts were enacted in Massachusetts, on
April 28, 1781, ? in Vermont, on October 27, 1787,* in
New Hampshire, on January 4, 1792,+ in New York, on
April 9, 1804, ° in Pennsylvania, on March 20, 1812, ® and
in various other states at subsequent periods.’ There are

1. Colonial Records of Conn., Vol. X (1751-1757) p. 101. See also Act Oct. 1771,
Colonial Records of Conn., Vol. XIII (1768-1772), p. 514, and Act Oct. 1785,
Acts and Laws, State of Conn., Hartford, 1786, p. 334.

2. Laws of Com. Mass. (1780-1807) Boston, 1807 Vol. 1, p. 53, Gen. Laws, Mass. Bos-
ton, 1823, Vol. I, p. 44, ch. 31. See other acts, Feb. 22, 1794, (Laws 1793,
ch. 42), June 16, 1801, June 20, 1804, Mar. 14, 1805, Feb. 28, 1807, (Laws Com.
Mass., 1807, Vol. 2, p. 610; Vol. 3, pp. 25, 237, 266, 399; Gen. Laws Mass.
1823, Vol. 1, p. 434; Vol. 2, pp. 47, 99, 110, 170); Laws 1814, ch. 50; Feb. 16
1816. (Pub. & Gen. L. 1816, Vol. 4, p. 524); Feb. 9, 1818, Feb. 17, 1819, (Gen.
Laws 1823, Vol. 2, pp. 430, 484); Rev. St. Boston 1836, pp. 389, 896; Laws 1841,
ch. 26; Laws 1852, ch. 312 (Gen. St. Boston 1866, p. 424; act May 27, 1882,
S. L. Ch. 274, p. 235; act May 16, 1883, S. L. ch. 183, p. 484.)

3. Statutes of Vermont, Bennington, Vt., 1791, p. 182; cf. Act Nov. 4, 1800, Sess.
Laws of 1800, p. 25; Act Nov. 5, 1801, S. L. p. 28; Act Nov. 29, 1840, S. L.
p. 58; Act Nov. 13, 1849, S. L. No. 24; Act Nov. 25, 1858, S. L. No. 57.

4. Laws of N. H., Portsmouth, 1797, p. 366; cf. Act Dec. 28, 1805; Laws of N. H.,
Exeter, 1815, p. 397, and Act June 10, 1808, p. 399, same volume. Cf. Act
Feb. 15, 1791, Laws N. H. 1797, p. 288; Laws 1815, p. 179, Laws 1830, Hop-
kinton, p. 81; Act July 7, 1826, Laws 1830, p. 440; Rev. St. 1843, p. 259.

5. Laws of New York, Webster & Skinner, Vol. 3, (1802-1804) p. 640. Cf. Apr.
7, 1806, Ch. 171 (Web. & S., Vol. 4, p. 621); Act June 19, 1812, Ch. 215 (Web.
& S. Vol. 6, p. 567); Act. Mar. 19, 1813, p. 166 (Repealed Dec. 1¢, 1828, Rev.
St. 3d Ed. Albany, 1848, Vol. 3, p. 161). Cf. Laws of 1892, Vol. 2, p. 2254,
sec. 136.

6. Session Laws of Penn., 1812, p. 136, ch. 91; Act. Apr. 20, 1853, P. L. Ch. 361,
Pp. 646, sec. 8; Act May 8, 1855, P. L. No. 548, p. 529; Act Apr. 10, 1862, P.
L, No. 393, p. 383. Cf. Act Mar. 6, 1849, Pamph. L. 1849, p. 138, ch. 119.

7. Ala.
Ark.
Calif.
Colo.

Dak.
Fla.

Md.

Act Feb. 17, 1885, Laws of 1884-5, p. 165.

Act Feb. 14, 1872. (Codes & Stats., 1876, Hittell, sec. 2389-2393.)
Act Feb. 3, 1872, Laws of 1872, p. 134 (See Gen. Laws Colo. 1877, p.
* 643).

Act June 6, 1863, Laws 1862-63, p. 239, ch. 48.

Act Feb. 10, 1834, Acts of Fla. prior to 1840 (Tallahassee 1839, Duvall,
p. 250.)' Act Jan. 8, 1853, Laws 1852, p. 84, ch. 507.

Act Dec. 5, 1799, Laws of Ga., Vol. 1, p. 346 (See Digest Laws of Ga.,
1822, Prince, p. 483).

Act Feb. 5, 1885, Laws of 1885, p. 177; See also act Feb. 29, 1899, Laws
of ’99, p. 332.

Act Mar. 11, 1901, Laws 1901, Ch. 221.

Laws of 1869, ch. 85; Laws 1873, ch. 127.

Act Mar. 22, 1873, Gen. St. Ky. 1873, p. 795. (Later acts in Gen'l
St. Ky., Louisville, 1887, pp. 489-495). Acts Jan. 28, Mar. 11, and
Mar. 13, 1890, Laws 1890, pp. 117, 604, and 630, respectively. °

Act 34 of Laws of 1888, and Act 104 of 1892 (Wolff’s Rev. L. 1908, p.
342).

Act Mar. 16, 1821, Laws of Me., Brunswick, 1821, Vol. 2, p. 749. Acts
Feb. 9, 1822, and Apr. 1, 1831, Gen. Laws 1831, Vol. 3, pp. 24 and 409;
act Feb. 20, 1839, p. 528.

Act Apr. 7, 1870, Laws of 1870, p. 419, ch. 229; See Act Apr. 1, 1872,
L. of '72, p. 430, ch. 258.

(Footnote 7 continued on next page)

234

THE FLOTATION OF TIMBER

now statutes in nearly all American states regulating the
manner in which timber shall be floated, prescribing the
procedure to be followed by those taking up floating or
stranded timber belonging to another, and fixing penalties.
for the appropriation of the same. !

Mich.

(Footnote 7 concluded from preceding page)

Rev. Stat. 1838, ch. 10, p. 215; Rev. St. 1845, p. 195, ch. 46; Comp. L..
1857, sec. 1599-1602; Act Mur. 16, 1861, p. 557; No. 263; Act Mar.
20, 1863, p. 374, No. 221; Act May 20, 1879, p. 83, No. 85. See also.
Act June 7, 1905 S. L., No. 189; Act May 22, 1907, S. L., No. 104. —

Act Mar. 3, 1854, Act Aug. 9, 1858, Stats. of Minn. 1849-58, p. 825-
ch. 122. Of. p. 2358, ch. 12. see: 36 tH cis,

Act Feb. 28, 1882, Laws of 1882, p. 87; see also Act Mar. 9, 1882, L. of —
"82, p. 144. Cf. Rev. Code, 1857, p. 192, Sec. 8 and 9.

Act Mar. 3, 1866, Session Laws, p. 198.

Act Mar. 8, 1848, Laws of 1848, p. 184; act Mar. 17, 1855, Laws of 1855,.
p. 322, ch. 120. Act Mar. 20, 1857, Laws 1857, p. 365.

Session Laws 1907, Ch. 47, p. 68.

Act Feb. 10, 1855, Laws of 1854-55, p. 101, ch. 45. 8S. L. 1909, Ch. 52.

Act June 1, 1883, Session Laws, Vol. 80, p. 195.

Act Feb. 20, 1891, Session Laws 1891, p. 84.

Act Dec. 20, 1853, Statutes of S. C. (1850-61), Vol.-12, p. 294, Act 4433.

Act Mar. 28, 1883, S. L. Ch. 152; Act Apr. 6, 1901 S. L. Ch. 29; Act.
Apr. 20, 1901, Ch. 54.

Act Apr. 7, 1879, Laws of 1879, ch. 72.

Laws of 1881-2 p. 366, p. 378; Laws of 1893-4, p. 375, p. 462, p. 513;
Laws 1902-3, p. 897.

Act Dec. 1, 1881, Laws of 1881, p. 38; Act Nov. 28, 1883, p. 6G; Act.
Mar. 28, 1890, Laws of 1889-90, p. 110; Act Mar. 2, 1891, Laws 1891,
p. 121, Sec. 8.

Act Mar. 27, 1882, Laws of 1882, p. 338, ch. 119.

Rev. St. 1849, p. 249, ch. 35; Act Apr. 3, 1854, Laws of 1854, p. 141,
ch. 99; Act Mar. 29, 1855, p. 56, ch. 60; Act Mar. 28, 1856, p. 50, ch.
48; Act Mar. 20, 1858, p. 33, ch. 31.

Act Dec. 9, 1869, Gen. Laws ist Sess. Ter. Ass., p. 324.

Criminal Code 1907, Sec. 7331-7333 aad 7863-7868.

Penal Code 1913, Sec. 360 (altering marks).

Digest of Statutes, 1904, Kirby, Sec. 4075-4107, 8009.

Penal Code, 1915, Deering, Sec. 356, p. 154 (Acts of Feb. 14, 1872).

Annotated Statutes, 1912, Mills, Sec. 3019 (Act. Feb. 3, 1872).

Compiled Laws, 1914, Sec. 1256-1260, 2541-2554 and 3708-3709.

Annotated Codes, 1914, Park. Political Code, Sec. 1837; Penal Code, ~
Sec. 224-225, and 776.

Revised Codes, 1908, Secs. 867-873, and 1494-1515.

Annotated Stat. 1914, Burns, Sec. 7186-7201 (Act of Mar. 11, 1901
Sess. L. 1901, p. 506).

Annotated Code, 1897, Secs. 2371-2381, and 4834-4839.

General Statutes, 1909, Dassler, Sec. 6607-6610, 7373-7376 (ch. 85 of
1869 & ch. 127 of 1873.)

General Statutes, 1915, Carroll, Sec. 1409 (From Act of Mar. 23, 1900).

Revised Laws, 1904, Wolff, p. 342 (Act 34 of 1888 and Act 104 of 1892),

Revised Statutes, 1903, ch. 43, pp. 422-423.

Code of Public Civil Law, 1911, Bagby, p. 959-960, Sec. 13-20.

Revised Laws, 1902, Vol. 1, ch. 93, sec. 1-7, pp. 814-815.

Annotated Statutes, 1914, Howell, Sec. 4137-4164, and 7401 et. seq.,
Cf. See. 14652-14654.

General Statutes, 1913, Tiffemy. Sec. 5453 and 5479.

Codes of 1906, Civil, Sec. 4973-4974 (Law of 1882) Penal Sec. 1224.

Annotated Statutes, 1906, Sec. 1492-1515, 4573 and 9717-9130. Cf.
Rey. Stat. 1909, Sec. 10774, (Lumber not subject to). :

(Footnote 1 continued on next page)
\ ‘

TIMBER LOST OR ESTRAY 235.

In the construction of laws of this nature it has been held
that provisions as to the salvage of floating logs did not
authorize compensation for the work bestowed on stranded
logs, 1 that the title of the original owner is wholly lost if
the logs are not claimed within the time limit named in the
statute, ? and that provisions as to forfeiture do not in-
volve a violation of constitutional prohibition against the
taking of private property without compensation and due
process of law. * Provisions in such statutes for the dis-
posal of logs upon which the marks have become obliterated,
and known as prize * logs, have also been maintained. 4
Some of the laws have provided for a pro rata division of

(Footnote 1 concluded from preceding page)

Mont. Revised Codes, 1907. Sec. 8458.

Neb. Revised Statutes, 1913, Sec. 6691-6699 (Acts of 1883, p. 285).

Nev. Cf. Rev. Laws, 1912, Sec. 1440. Act Mar. 3, 1866, Laws of .1866, p.
198.

N. H. Public Statutes, 1901, Ch. 146, p. 466, Ch. 244, Sec. 2, p. 758.

N. J Compiled Statutes 1709-1910, Vol. 2, p. 1789, sec. 139; Vol. 4, p. 5397
sec. 7-11

N.M. Annotated Statutes, 1915, sec. 3371-3377.

N. Y. Consolidated Laws, 1909, Birdseye, Cum. & Gil., Vol. 5, p. 6128-6129;
Vol. 3, p. 3985, sec. 136U of Penal Law.

N.C Revised Laws 1908, Pell, Sec. 3023-3025, and 3853-3856. Suppl. 1911
to Pell’s Revisal, Vol. 3, Sec. 3689. b

D. Compiled Laws , 1913, secs. 3056, 9724, 10243 and 10244.

Ohio Annotated Gen’l Code, 1912, Page & Adams, sec 6228-6240; sec. 12460,.
12509.

Okla. Revised Laws, 1910.

Ore. Laws, 1910, Lord, Sec. 5074-87.

Penn. Purdon’s Digest, 1905, Stewart, pp. 2342-2356.

S.C. Or. Code of 1912, sec. 256. Cf. sec. 235 (rafting without light).

8. D. Revised Political Code, 1903, sec. 3196, Penal Code, sec. 432, 760 &
761.

Tenn. Code of 1896, Shannon, Secs. 1823, 1824; Suppl, 1903, pp. 621-624.

Tex. Revised Civil Statutes, 1911, sec. 7727-7730; Penal Code, 1911, White,

secs. 832-837.
Utah Compiled Laws 1912, sec. 4451 and 4473.
Vt. Public Statutes, 1906, Lord and Darling, sec. 4087-4092; 4231-36; 5702.
» Va. Code 1904, secs. 1906b and 1906c. Cf. sec. 1344-45 and 7091-7126.

Wash. Codes & Statutes, 1910, Remington & Ballinger, secs. 2594-2595,
W. Va. Code 1913, Hogg, secs. 3586-3593, 5215 and 5231. —

Wis. Statutes 1913, secs. 1600, 1600a, 1600b, and 4449-4452.

Wyo. - Compiled Statutes, 1910, Mullen, secs. 828, 5874, 5877-80, 5889.

1. West Branch Lumbermen’s Exchange v. Fisher, 150 Pa. St. 475, 24 Atl. 735
Aff’m’g 11 Pa. Co. Ct. 328; Etter vy. Edwards, 4 Watts (Pa.) 63; West Branch
Lumbermen’s Exchange v. McCormick, 1 Pa. Dist. 542; Craig v. Kline, 2
Leg. Gaz. (Pa.) $1. See Wilson v. Wentworth, 25 N. H. 245.

2. Scott v. Wilson, 3 N. H. 321; See Wilson v. Wentworth, 25 N. H. 245; West
Branch Lumbermen’s Exch. v. Lutz, 2 Pa. Super. Ct. 91, 38 Wkly Notes Cas.
434.

3. Henry v. Roberts, 50 Fed. 902; But see Ames v. Port Huron Log Driving Assoc.,
11 Mich. 139, 83 Am, Dec. 731.

4. Kennebec Log Driving Co. v. Burrill, 18 Me. 314. ;

236 THE FLOTATION OF TIMBER

prize logs among those using the stream‘ and others for
the use of the proceeds therefrom for some public pur-
pose.” Laws regarding the disposal of floating timber
taken up by another than the owner ordinarily provide for
a special notice to the owner, * a public advertisement, +
or a filing of a description of the property taken up with a
specified town or county official. ° Proceedings to enforce
forfeiture must generally be instituted before the title of the
owner is divested; ° and if the owner gains possession before
such proceedings are started, forfeiture eannot be enforced. *

§157. The Conversion of Floating or Stranded Logs.
One who unlawfully converts to his own use the logs of
another, whether floating or stranded, is liable for con-
version. * The measure of damages in such cases will be

1. Dig. of St. Ark., 1904, Kirby, Sec. 4088 (See act Mar. 17, 1883, S. L. 83, p. 140).
Idaho Rev. Code, 1908, sec. 1504; Wisconsin Statutes, 1913, sec. 1740.
2. For school fund Act of Feb. 10, 1834, Laws of Fla. pub. 1839, p. 250; Comp. L.
1914, sec. 2547 and 2554; Codes & Stat. of Calif, 1876, sec. 2393.
To improve river:
Me. Act Feb. 22, 1825, Laws of Me., Portland, 1831, Vol. 3, p. 133, sec. 2.
Mass. Act. Feb. 28, 1807, See Gen. Law of Mass., Boston, 1823, Vol. 2, Ch.
118, p. 170; Laws Com. Mass. 1807, Vol. 3, p. 399. Act Mar. 4,
1808, Public & Gen. Laws, Mass., Boston, 1816, Vol. 4, p. 23. Act
Mar. 2, 1816, Public & Gen. Laws, Vol. 4, p. 499.

3. Act Mer. 3, 1866, L. of Nev. ’66, p. 198 (Gen. L. 1885, sec. 1065) See Sullivan
v. Woolridge, 107 Ark. 256, 154 S. W. 508.

4. Act Feb. 22, 1794, Gen. Laws of Mass., Boston, 1823, Vol. 1, p. 434, ch. 42.
Pub. St. N. H., 1901, Chase, ch. 146, p. 466; Laws of Pa. for 1849, p. 138, act
Mar. 6, 1849.

Wendt v. Craig, 67 Pa. St. 424; Craig v. Kline, 65 Pa. St. 399.

5. Pub. St. N. H., 1901, Chase, ch. 146, p. 466 (See act Jan. 4, 1792, in laws of N. H.
Portsmouth, 1797, p. 366.); act Mar. 20, 1812, 8. LL. Pa. p 136, ch 91: act Nov.
5, 1801, S. L. Vt. p 28; Seagrist v. Clement, 6 Pa. Co. Ct. 671; Hysicke v.
Smith, 26 Pa. St. 499.

6. Log Owner’s Booming Co. v. Hubbell, 135 Mich. 65, 97 N. W. 157, 4 L. R. A.
N. 8. 573.

7. Barron v. Davis, 4 N. H. 338.

8. Ala. See Creagh v. Bass, 67 So. 288; Lbr. Co. v. Austin, 162 Ala. 110, 49

So. 875. :
Ark. Lbr. Co. v. Fix. 126 S. W. 287.
Ida. Norman v. Lbr. Co., 22 Ida. 711, 128 Pac. 85.
Ky. Tie Co. v. Myers, 116 8S. W. 255; cf. Day v. Asher Lbr. Co. 141 Ky.
468, 132 S. W. 1035.
La. * Lbr. Co. v. Stout, 134 La. 987, 64 So. 881 (sunken logs); Voisin v. Lbr.
' Co., 131 La. 775, 66 So. 241; Eastman v. Harris, 4 La. Ann. 193.
Me. Martin v. Mason, 78 Me. 452; Moulton v. Witherall, 52 Me. 237.
Mich. Bennett v. Pulpwood Co., 181 Mich. 33, 147 N. W. 490; Seymour vy.
Bruske, 140 Mich. 244, 103 N. W. 613, 104 N. W. 691; Bellows v.
Crane Lbr. Co., 129 Mich. 560, 89 N. W. 367; Kimberly v. Guilford,
34 Mich. 259.
Minn. Timber Co. v. Lbr. Co., 117 Minn. 355, 135 N. W. 1132 (Unmarked logs
being driven by third party); Williams v. Monks, 108 Minn. 256,
122 N. W. 5; Breault v. Merrill Etc. Lbr. Co., 72 Minn. 143, 75 N. W.
(Footnote 8 continued on next page)

CONVERSION OF FLOATED TIMBER 237

the value of the logs at thé nearest convenient market, less
the cost of transportation to such market.! If an owner
of logs fraudulently mingles the unmarked or similarly
marked logs of another with his own, or intermingles the’
lumber sawn from the logs of another with that sawn from
his own in such manner that the ownership of the identical
logs or lumber cannot be determined, the logs or lumber be-
longing to the guilty party may be forfeited to the innocent
party under the doctrine of confusion of goods.? How-
ever, because of the aversion of the courts to forfeitures,
where no fraudulent intention is manifest the party wronged
will ordinarily be accorded the possession of the confused
goods, but the party at fault will be entitled to recover such
portion, or the value thereof, as he can clearly prove to be-
long to him.* As a means of avoiding disputes as to the
ownership of logs and to aid in the prevention of theft of
timber products, many states have enacted laws which pro-
vide for the adoption of a distinguishing mark by each per-
son, firm or corporation placing logs or other timber pro-
ducts in a certain stream or its tributaries. These statutes
ordinarily provide for the recordation of the adopted mark

(Footnote 8 concluded from preceding page)
122; Libby v. Johnson, 37 Minn. 22C; Clark v. Nelson Lbr. Go., 34
Minn. 289.
Vt. Hassan v. Lbr. Co., 82 Vt. 444, 74 Atl. 197.
Wash. Boom Co. v. Boom Co., 52 Wash. 564, 101 Pac. 48.
Wis. Arpin v. Burch, 68 Wis. 619, 32 N. W. 681.
U.8. Tome-v. Dubois, 6 Wall, 548.
Can. Smith v. Baechler, 18 Out. 293.
’ 1. Hodson v. Goodale, 22 Ore. 68, 29 Pac. 70. See Stillwell v. Paepke-Leicht Lbr.
Co., 73 Ark. 432, 84 8S. W. 483, 108 Am. St. Rep. 42; Snyder v. East Bay Lbr.
Co., 185 Mich. 31, 97 N. W. 49; Miles v. North Pac. Lbr. Co., 38 Ore. 556,
64 Pac. 303; Walker v. Duncan, 68 Wis. 624, 32 N. W. 689. Of. Lbr. Co. v.
Wagner (Ky.) 119 S. W. 197 (Prevention of sale by wrongfully marking logs.)
2. Wingate v. Smith, 20 Me. 287; Ryder v. Hathaway, 21 Pick. (Mass.) 298; Root
v. Bonnema, 22 Wis. 539; Jenkins v. Steanka, 19 Wis. 126, 88 Am. Dec. 675.
3. Idaho Norman v. Lbr. Co., 22 Ilda. 711, 128 Pac. 85.
Ky. Day v. Asher, 141 Ky. 468, 132 S. W. 1035.
Me. Dillingham vy. Smith, 30 Me. 370. Cf. Bryant v. Ware, 30 Me 295;
Hesseltine v. Stockwell, 30 Me. 237, 50 Am. Dec. 627.
Mass. See Ryder v. Hathaway, 21 Pick. 298.
Mich. Keweenaw Asso., Ltd. v. O'Neil, 120 Mich. 270, 79 N. W. 183; Crane
Lbr. Co. v. Bellows (Mich.), 74 N. W. 481; foster v. Warner,'49 Mich.
641, 14 N. W. 673 (No forfeiture to advantage of third party—shingles. )
Miss. Blodgett -v. Seals, 78 Miss. 522, 29 So. 852.
N. Y. Nowlen v. Colt, 6 Hill (N. Y.) 461, 41 Am. Dec. 756 (Wood pieced
mixed by flood, held tenants in common.)
U.S. Norris v. U. S., 44 Fed. 735.

238 THE FLOTATION OF TIMBER

at the office of a town, county, or state official.!' The
later laws of this nature provide also for the recording of
each transfer of title in marked logs and impose a distinct
legal disadvantage upon one who claims to own logs that
are not marked or that bear an unrecorded mark.? It has
been held that the requirements of such a law as to the
recordation of a conveyance referred to the transfer of the
marked logs and not to the transfer of the mark itself; *
and that laws of this character were not applicable to trans-
fers of standing timber.‘ Provisions in such laws that
no sale or transfer of logs shall be legal unless properly re-
corded will not be construed so as to defeat the rights of the
real owner to the advantage of a mere stranger or tres-
passer, ° nor will they be held to apply to logs on the land
and in the actual possession of the true owner.* 'The mere
fact that one claiming logs has recorded the mark thereon
is prima facie evidence of the ownership of the logs.7 Evi-
dence as to an unrecorded mark is admissible, * but parol
evidence in explanation of a mark has been held inadmis-
sible. °

§158. Criminal Interference with Floating Timber.
In most states the careless or fraudulent obliteration or
modification of the marks on floating or stranded timber

1. See Statutes under Note 1, page 234. See also Murray v. Boyd, 165 Ky. 625,
177 S. W. 468; Burris v. Stepp, 162 Ky. 269, 172 S. W. 526; Bennett v. Co.,
133 Ky. 452, 118 S. W. 332; Whitman v. Lifting Etc. Co., 152 Mich. 645,
116 N. W. 614, 20 L. R. A. N. S. 984; Weiler v. Coleman, 71 Pa. St. 346;
Smith v. Haines, 7 Phila. (Pa.) 188; Cook v. Van Horne, 76 Wis. 520. ,

See Astell v. McCuish, 119 Minn. 61, 124 N. W. 453, for interpretation of statute

providing that unmarked floating logs become property of one placing recorded
mark on them.

2. Cook v. Van Horne, 76 Wis. 520, 44 N. W. 767; See Iowa Code 1897, sec. 4836
Fla. Comp. L., 1914, Sec. 2548. (Mark on logs evidence of ownership).

3. McCutchin v. Platt, 22 Wis. 561. :

4. Wing v. Thompson, 78 Wis. 256; Bunn v. Valley Lbr. Co. 51 Wis. 376; Cadle
v. McLean, 48 Wis. 634.

5. Gaslin v. Bridgman, 26 Minn. 442, 4 N. W. 1111; Lovejoy v. Itasca Lbr. Co
46 Minn. 216.

6. Lbr. Co. v. Dam Co. 115 Minn. 484, 132 N. W. 1126; Stanchfield v. Sartell, 35
Minn. 429, 29 N. W. 145; Plummer v. Mold, 14 Minn. 532. ;

Cf. Timber Co. v. Lbr. Co. 117 Minn. 355, 135 N. W. 1132, (Unmarked logs being

driven by another not abandoned.).

7. Watson v. Tie Co. 148 Mich. 675, 116 N. W. 614, 20 L. R. A. N. S. 984; Sey-
mour v. Bruske, 140 Mich. 244, 103 N. W. 613, 104 N. W. 691; Fox v. Ellison,
43 Mich. 41, 44 N. W. 671; Weiler v. Coleman, 71 Pa. St. 346; Long v. David-
son, 77 Wis. 509, 46 N. W. 805.

8. St. Paul Boom Co. v Kemp, 125 Wis. 138, 103 N. W. 259.

9. Stuart v. Morrison, 67 Me. 549.

(

CRIMINAL INTERFERENCE WITH FLOATED TIMBER 239

has been made a specific misdemeanor or a felony, * and the
taking of such logs with fraudulent intent has been declared
by statute in several states to constitute larceny.* The

1. Ala.
Ariz.
Ark.
Calif.
Colo.
Conn.
Fila.
Ga.
Idaho
Ind.
lowa
Ky.

ia

Mich.
Minn.

gs
8

Mont.

AZZ
m 3

A222
DOMES

er
°

2eOO
a’ $

rrr
RED

Utah

<j
Sf

<j
©

Wash.
W. Va.
Wis.
Wyo.
2._ Fla.
lowa
Ky.
Me.

Mass.
Mich.
Minn.
Neb.

Ne Bik

N. M.

Criminal Code 1907, sec. 7333.
Penal Code 1913, sec. 360.

Penal Code 1915, Deering, p. 154, sec. 356 (Act Feb. 14, 1872.)

Compiled Laws, 1914, sec. 3294-3295, and 3386. Cf. sec. 2542.

Penal Code 1908, sec. 7060. .

Annotated Stats., 1914, Burns, sec. 7196.

Annotated Code, 1897, sec. 44834 larceny.)

Statutes 1915, Carroll, sec. 1409, par. 11 (felony); Act May 7, 1886,
Gen’l Stat. of Ky., 1887, p. 495.

Rey. Laws, 1904, Wolff, p. 342; Act 104.o0f 1892.

Code 1911, Art. 34, Sec. 19 and 20 (Act. Apr. 1, 1872, S. L. 430.)

Rev. Laws 1902, p. 814, sec. 2-4.

Annotated Stat. 1913, Howell, 2nd Bd., par. 4154, p. 1766.

Gen. St.’ Tiffany, 1913, 5473 & 5475.

Annotated Code 1906, Sec. 1056, (Act Mar. 9, 1882, S. L. p. 144.)

Annotated Statutes, Mo., 1906, sec. 1511.

Revised Codes, 1907, sec. 8458.

Rey. St. 1912, sec. 1440 (See Gen. St. 1885, sec. 1068, Laws of ’66 and
75.)

Public Statutes, 1901, Chase, p. 467, ch. 146, sec. 11; See acts Feb. 15
1791, and July 7, 1826.

Annotated Stats., 1915, sec. 3376.

Consolidated Laws, Bird. Cum. & Gil. 1909, Penal Laws, sec. 1360.
Rev. L., 1908, Pell, sec. 3855.

Comp. L. 1913, sec. 9724.

Annotated Code, 1912, Page & Adams, sec. 12509 and 13157.

Laws of Oregon, 1910, Lord, sec. 5086 (from Laws 1891, p. 84).
Purdon’s Digest, 1903, Stewart, p. 2356, sec. 56.

Rev. Code 1903, sec. 432.

Supp’l. to Shannon Code, 1903, p. 620.

Rev. Crim. Stat. 1911, Art. 1301.

Compiled Laws 1912, sec. 4473.

Public Statutes 1906, sec. 5842-5843. See Act Mar. 4, 1797, R. L.
1824, p. 280.

Cede 1904, sec. 1346, secs. 1906-b and 1906-c.

Ccdes & Stats., 1910, Rem. & Ballinger, sec. 7097 (misdemeanor). -

Code 1913, Hogg, sec. 3589, 3590. Cf. 3136.

Wis. St. 1913, sec. 4452 (Act. Mar. 29, 1855, L. 1855, p. 59, ch. 66).

Comp. St., 1910, Mullen, sec. 5880 (misdemeanor).

Act of Feb. 10, 1834; Acts of Fla. Prior to 1840, by Duvall, 25v.

Annotated Code 1897, sec. 4834-4835.

Statutes 1915, Carroll, sec. 1409, par. 12 (felony). Act Apr. 3, 1886.

Rev. St. 1903, p. 422, ch. 48, sec. 2. Act Feb. 20, 1839, Laws 1839,
p. 528, ch. 370.

Laws of 1854, ch. 339 (Gen. St. 1859, p. 424). See Rev. L. 1902, p. 815,
sec. 7. (Not larceny).

Cf. Annotated Stat. 1913, Howell, 2nd Ed. par. 4155, p. 1767. (mis-
demeanor).

Gen. St. 1913, Tiffuny, sec. 5473-5475.

Rev. Stat. 1913, sec. 6699.

Pub. St. 1901, Chase, ch. 146, sec. 12. Act July 7, 1826, L. N. H. 1830
Hopkinton, p. 440.

Annotated Stat. 1915, sec. 3377.

(Footnote 2 continued on next page)

‘240 are - THE FLOTATION OF TIMBER

‘words of these acts, like other criminal statutes, will be
strictly construed. Thus statutes prohibiting the taking
of logs from the banks of a stream will not be construed to
cover the taking of logs lying at a considerable distance
from the stream,! and the pleadings, proof and verdict
must conform strictly to the requirements of the law. ?
Under these acts the possession of logs on which the marks
have been obliterated or altered ordinarily raises a presump-
tion of guilt which must be overcome by the defendant, *
and a purchaser of logs with notice of an unlawful taking
will be subject.to the penalties of the law.‘ In many —
states the cutting loose of rafts or booms, * or the driving
of a nail or other hard substance into a sawlog has been
declared a misdemeanor or a felony.* However, either
the cutting loose of timber or the malicious driving of nails
into logs would doubtless be actionable at common law. ?

(Footnote 2 concluded from preceding page)
N.C. Rev. Laws 1908, Pell, sec. 3853. Act Feb. 10, 1855, Laws 1854-1855,
autor:
Ohio Annotated Stat. 1910, Page & Adams: sec. 12509.
Ore. Laws 1910, Lord, sec. 5/87.
_ W.Va. Code of 1913, Hogg, sec. 3590 & 5231. Act Mar. 29, 1882, Laws of 1882,
: p. 478.
Wis. Statutes, 1913, sec. 4448, 4449, 4449a. See Act Mar. 29, 1855, S. L.,
p. 59, ch. 60. And compare Acts Apr. 12, 1866, S. L., p. 180, ch.
' 134, and Apr. 11, 1867, S. L., p. 159, ch. 161.
1. State v: Adams, 16 Me. 67; Parkhurst v. Staples, 91 Wis. 196, 64 N. W. 882.
See Bradley v. Tittabawassee Boom Co., 82 Mich. 9.
2. State.v. Loomis, 129 Iowa, 141, 105 N. W. 397; Frost v. Rowse, 2 Me. 130;
Little v. Thompson, 2 Me. 228; State v. Fackler, 91 Wis. 418, 64
N. W. 1029. Cf. State v. Dean, 49 Iowa 73; State v. Taylor, 25 Lowa 273
Bennett v. Com. 133 Ky. 452, 118 S. W. 332; State v..Gainey, 135 La. 459
65 So. 609; State v. Smith, 119 Tenn. 521, 105 S. W. 68; Farquharson v. Oil
: ; Co. 30 Can. 8. Ct. 188.
. State v. Loomis, 129 Iowa 141; 105 N. W. 397.
. Howes v. Shed, 3 Me. 202.
. Ala. ‘Criminal Code, 1907, sec. 7331 (See act Feb. 17, 1885, “Laws of 1884-5
p. 165.)
“‘lowa Code 1897, sec. 4824.
La. La. Rev. Laws, 1904, p. 342. (S. L. 1888, No. 34 p. 26.)
Me. Rev. St. 1903, p. 946, sec. 10 cf. ch. 128.
Md: Revised Stat. 1903, p. 946, sec. 10.
Mich. Annotated Stat., 1913, Howell; Sec. 4141.
Mont. Penal Code 1907, Sec. 8756. Acts 1st Terr. Ass., 1864, p. 214, sec. 146.
Wash. Code of Terr. Wash. 1881, sec. 843, p. 1681.
W. Va. Code of 1913, Hogg, sec. 5215 (felony).
_ Wis. Statutes 1915, sec. 4453.
"6. Calif. Penal Code 1808, Kerr, sec. 593a, p. 569 (felony) Gen. L. 1914, H. & D.,
p. 939 (see act Feb. 9, 1876, Law of 1875-6, p. 32).
Me. Rev. St. 1903, p. 945, sec. 9, ch. 128.
Mich. Annotated Stat., 1913, Howell, sec. 14651.
Vt. Public Stat. 1946, sec. 5844 (Act. Nov. 26, 1878, Laws of 1878, p. 42
No. 28).
Wis. Statutes 1913, sec. 4451, (felony).
7. Ballant v. Brown, 78 Mich. 294; Auger v. Cook, 39 U. C. Q. B. 537.

Ot PR

CHAPTER XV

STANDING TIMBER AS INCLUDED IN A MORT-_
GAGE

§159. The Legal Effect of a Realty Mortgage. At
common law a mortgage of real estate was in effect a con-
veyance of the realty to the creditor. .This conveyance was
subject to defeasance upon the fulfillment of the obligation
of the mortgagor to the mortgagee, and immediately upon
the payment of the debt the title to the land reverted to the
mortgagor. However, the common law has not found
favor with American courts and legislatures and in most:

_. American jurisdictions a mortgage on real estate is merely

a lien on the realty for the payment of the debt secured by
the mortgage. Under a mortgage of this character the title
to the property does not pass until the mortgage is fore-
closed, but upon foreclosure the title, for many purposes,
relates back to the time when the mortgage was originally
executed. !

A mortgage on land covers the growing timber standing
upon the land, ? unless such timber is excepted by the terms
of the mortgage or it has been constructively severed prior
to the giving of the mortgage and the mortgagee had notice
of such severance. * Standing timber may be mortgaged
separate from the land, but such a mortgage has been held
to be a mortgage of realty. 4

Under the common law theory of a mortgage which held
the legal title vested in the mortgagee until the debt was dis-
charged and which still prevails in some American States,

1. Batterman v. Albright, 122 N. Y. 484, 25 N. E. 856, 19 Am. St. Rep. 510, 11
L. R. A. 800; Hamilton v. Austin, 36 Hun. (N. Y.) 138.

2.. Maples v. Millon, 31 Conn. 598, Adams v. Beadle, 47 Iowa 439, 29 Am. Rep.
487; Hutchings v. King, 1 Wall. (U. S.) 53, 17 L. Ed. 544; In re Bruce 4 Fed.
Cas. No. 2045, 9 Ben. 236.

3. Moisant v. McPhee, 92 Cal. 76, 28 Pac. 46; Mercantile Trust Co. v. Southern
States Land etc. Co., 86 Fed. 711, 30 C. C. A. 349.

4, Williams v. Hyde, 98 Mich. 152, 57 N. W. 98.

241

242 MORTGAGE OF STANDING TIMBER

a mortgagee can stop waste by the mortgagor in the way of
cutting timber even when the cutting is not such as to im-
peril the security of the mortgage.! When the debt se-
cured by a mortgage is paid the lien of the mortgage is dis-
charged and the title to timber on the land both standing
and severed reverts to the mortgagor or his vendee.? For
trespass committed by a stranger before default the mort-
gagor can maintain an action in his own name, * except that
some cases hold he has no action after the mortgagee takes
possession. 4

§160. A Mortgagee may Protect Interest in Timber
when Mortgagor is in Possession of Land. Under the
theory generally adopted in American States as to the legal
effect of a mortgage a mortgagor who is in possession of the
land prior to default or foreclosure may cut timber from the
premises for either use or sale in accordance with the ordin-
ary use and enjoyment of the estate, ° but this cutting must
not be so extensive as to substantially impair the security
of the mortgage.® If the security’ of the mortgage is
threatened the mortgagee may obtain an injunction re-
straining the mortgagor from cutting timber.’ Injunction

1. Byrom v. Chapin, 113 Mass. 308; Gooding v. Shea, 103 Mass. 360, 4 Am. Rep.
563: See King v. Bangs, 120 Mass. 514; Leavitt v. Eastman, 77 Me. 117.
Cole v. Stewart 11 Cush. (Mass. 181.)

2. Barron v. Paulling, 38 Ala. 292; Hutchins v. King, 1 Wall. (U. 8.) 53, 17 L. Ed.
544.

3. Ala. Hamilton v. Griffin, 26 So. 243.

Ill. Abney v. Austin, 6 Ill App. 49.

Md. Annapolis etc. R. Co. v. Gantt, 39 Md. 115.

N. Y. Johnson v. White, 11 Barb. 194.

Vt. Whitney v. Adams, 66 Vt. 679, 30 Atl. 32, 44 Am. St. Rep. 875, 25 L. R. A.

598. See also relevant decisions cited in note 22, Cyc. Vol. 27, p. 1272.

4. Sparhawk v. Bagg, 16 Gray (Mass.) 583; Morey v. McGuire, 4 Vt. 327. See also
related cases, 27 Cyc. p. 1272, note 23.

5. Judkins v. Woodman, 81 Me. 351, 17 Atl. 298, 3 L. R. A. 307; Smith v. Moore,
11 N. H. 55; Hapgood v. Blood, 11 Gray (Mass.) 400; Searle v. Sawyer 127
Mass. 491, 34 Am. Rep. 425; Angier v. Agnew, 98 Pa. St. 587, 42 Am. Rep.
624; Haskin v. Woodward, 45 Pa. St. 42; Wright v. Lake, 30 Vt. 206; In re
Phillips, 16 Ch. Div. 104; See also Steward v. Scott, 54 Ark. 187, 15 S. W.

' 463; Adams v. Corriston, 7 Minn. 456; Moore y. Southern States Land etc.
Co. 83 Fed. 399. Van Wyck v. Alliger 6 Barb. (N. Y.) 511.

6. Maples v. Millon, 31 Conn. 598; Dorr v. Dudderar, 88 Ill. 107; Wilmarth v. Ban-
croft, 10 Allen (Mass.) 348; Sanders v. Reed, 12 N. H. 558; Langdon v- Paul
22 Vt. 205; Simmins v. Shirley, 6 Ch. Div. 173.

7. Coker v. Whitlock, 54 Ala. 180; Buckout v. Swift, 27 Cal. 434, 87 Am. Dec. 90;
Robinson v. Russell, 24 Cal. 467; Cooper v. Davis, 15 Conn. 556 Williams v.
Chicago Exposition Co., 188 Ill. 19, 58 N. E 611; Gray v. Baldwin, 8 Blackf.
(Ind.) 164; Brown v. Stewart, 1 Md. Ch. 87; Webster v. Peet, 97 Mich. 326;

(Footnote 7 continued on next page)

INTEREST OF MORTGAGE 243

will be granted only on satisfactory showing that the se-
curity is actually imperiled; ' and although the solvency of
the mortgagor is important, ? injunction may be granted
where the mortgagor is solvent.* Inafew states the mort-
gagee has no action in law against a mortgagor for waste
and must rely upon injunction; * but in most jurisdictions,
even where, under the equitable theory of a mortgage, the
title to the realty is in the mortgagor until after foreclosure,
the mortgagee has a right of action against either the mort-
gagor ° or a third person ° for an injury which affects the
security of the mortgage. The right of action of mortgagee
against a stranger will depend upon the extent to which the
debt of the mortgagor remains unpaid, ‘ or possibly in some

(Pootnote 7 concluded from preceding page)

Moriarty v. Ashworth, 43 Minn. 1, 44 N. W. 531; 19 Am. St. Rep. 203; Berthold
v. Holman, 12 Minn. 335, 93 Am.*Dec. 233; Dutro v. Kennedy, 9 Mont. 101,
22 Pac. 763; Verner v. Betz. 46 N. J. Eq. 256; Brady v. Waldron 2 Johns Ch.
(N. Y.) 148 (See Cahn v. Hewsey, 8 Misc. (N. Y.) 384, 29 N. Y. Suppl. 1107,
31 Abbott N. Cas. 387); Beaver Lumber Co. v. Eccles, 43 Ore. 400, 73 Pac.
201, 99 Am. St. Rep. 759; Scott v. Webster, 50 Wis. 53, 6. N. W. 363; Fair-
banks v. Cudworth, 33 Wis. 358; King v. Smith, 2 Hare 239; McLeod v.
Avey, 16 Ont. 365. cf. Hampton v. Hodges 8 Ves. 105: Wright v. Atkyns 1
Ves. & B. 314.

1. See citations under Note 7, Page 242, and following: McLean v. Burton, 24
Grant Ch. (U. C.) 134, (Canada); King v. Smith, 2 Hare 239, 7 Jur. 694, 24
Eng. Ch. 239, 67 Eng. Reprint 99; Hippesley v. Spencer, 5 Madd. 422, 56 Eng.
Reprint 956.

2. Bunker v. Locke, 15 Wis. 635.

3. Williams v. Chicago Exposition Co., 188 Ill. 19, 58 N. E 611; Triplett v. Parmlee,
16 Neb. 649, 21 N. W. 403; Starks v. Redfield, 52 Wis. 349, 9 N. W. 168; Fair-
banks v.,Cudworth, 33 Wis. 358.

4. Cooper v. Davis, 15 Conn. 556; Tomlinson v. Thompson, 27 Kan. 70; Vander-
slice v. Knapp, 20 Kan. 647; See Triplett v. Parmlee, 16 Neb. 649.

5. Colo. Arnold v. Brood, 15 Colo. App. 389, 62 Pac. 577.

Me. Holbrook v. Greene, 98 Me. 171, 56 Atl. 659.
- Mass. Searle v. Sawyer, 127 Mass. 491; Ingell v. Fay, 112 Mass. 451; Miner v.
Stevens, 1 Cush. 482.
Mo. Girard L. Ins. Annuity etc. Co. v. Mangold, 83 Mo. App. 281; But see
Girard L. Ins. Annuity etc. Co. v. Mangold, 94 Mo. App. 125, 67 8S. W.
955.
Mont. Dutro v. Kennedy, 9 Mont. 101, 22 Pac. 763.
N. H. Lawrence v. Lawrence, 42 N. H. 109; Smith v. Moore, 11 N. H. 55.
N. J. Jersey City v. Kierman, 50 N. J. L. 246, 13 Atl. 170; Jackson v. Turrell,
39 N. J. L. 329; Fidelity Trust Co. v. Hoboken etc. R. Co. (Ch. 1906),
63 Atl. 273; Coggill v. Milburn Land Co., 25 N. J. Eq. 87; Emmons
v. Hinderer, 24 N. J. Eq. 39.
N. Y. Van Pelt v. McGraw, 4 N. Y. 110.
Vt. Langdon v. Paul, 22 Vt. 205.
Wis. Scott v. Webster, 50 Wis. 53, 6 N. W. 363.
Can. McLeod v. Avey, 16 Ont. 365; Mann v. English, 38 U. C. Q. B. 240.
See 35 Cent. Dig. Tit. Mortgages, Sec. 555.
6. Lavenson v. Standard Soap Co., 80 Cal. 245, 13 Am. St. Rep. 147; Gooding v.
' Shea, 103 Mass. 360; Webber v. Ramsey, 100 Mich. 58, 43 Am. St. Rep. 429;
Ogden Lbr. Co. v. Busse, 92 N. Y. App. Div. 143, 86 N. Y. Suppl. 1098; Van
Pelt v. McGraw, 4 N. Y. 110; Allison v. McCune, 15 Ohio, 726, 45 Am. Dec.
605; Atkinson v. Hewett, 63 Wis. 396; See Cases cited 27 Cyc. p. 1272, Note 24.

7. Kennerly v. Burgess, 38 Mo. 446; Triplett v. Parmlee, 16 Neb. 649, 21 N. W. 403;

Vogel v. Walker, 3 Utah 227, 2 Pac. 210.

244 MORTGAGE OF STANDING TIMBER

jurisdictions upon the insolvency of the mortgagor.! It has
been held that a mortgagee cannot maintain an action
against a stranger to the title for negligently injuring the
mortgaged premises so that the security is lost, ? and this
rule would evidently apply to a careless burning of timber.

In an action by the mortgagee to protect his security it is-
unnecessary that he prove an intention on the part of the
mortgagor to impair the security, * and the measure of dam-
ages will be the injury to the security.‘ For the removal
of nursery stock in accordance with the usual course of busi-
ness conducted \on the land covered by the mortgage the.
mortgagee can maintain neither an injunction nor an action
in law against the mortgagor or his tenant in possession
before foreclosure, ° except where the insolvency of the
mortgagor is averred, ® and for any injury to the freehold
which does not affect the security of the mortgage the mort-
gagee who does not have title has no action until he obtains
possession under a default on the mortgage. 7

A mortgagee has been permitted to maintain an action of
quare clausum fregit, * to recover the value of the timber and
other things removed from the land in an action of trover or
de bonis asportatis, ° and to recover by replevin that which
was removed. Some decisions have held that the value
of timber cut by the mortgagor and sold to a purchaser for
value without notice of the mortgage cannot be recovered
by the mortgagee either in trespass or trover,!! even where

1. Morgan v. Gilbert, 2 Fed. 835, 2 Flipp. 645; Contra. Ogden Lumber Co. v. Busse,
92 N. Y. App. Div. 143, 86 N. Y. Suppl. 1098.

2. Gardner v. Heartt, 3 Den. (N. Y.) 232.

3. Van Pelt v. McGraw, 4 N. Y. 110.

4. Turrell v. Jackson, 39 N. J. L. 329. Woodruff v. Halsey 8 Pick. (Mass.) 333.

5. Hamilton v. Austin, 36 Hun. (N. Y.) 138; But see, Batterman v. Albright, 122
N. Y. 484.

6. Robinson v. Russell, 24 Cal. 467.

7. Guthrie v. Kahle, 46 Pa. St. 331.

8. Leavitt v. Eastman, 77 Me. 117; Stowell v. Pike, 2 Me. 387; Smith v. Goodwin,
2 Me. 173; Sanders v. Reed, 12 N. H. 558; Cf. Dunlap v. Steele, 80 Ala. 424;
Boswell v. Carlisle, 70 Ala. 244; Codman v. Freeman, 3 Cush. (Mass.) 306.

9. Searle v. Sawyer, 127 Mass. 491, 34 Am. Rep. 425; Cole v. Stewart, 11 Cush.
(Mass.) 181; Frothingham v. McKusick, 24 Me. 403; Burnside v. Twitchell,
43 N. H. 390; Angier v. Agnew, 98 Pa. St. 587, 42 Am. Rep. 624.

10. Dorr v. Dudderar, 88 Ill. 107; See Mosher v. Vehue, 77 Me. 169; Searle v. Sawyer,
127 Mass. 491; Replevin lies under Rhode Island Statute: Waterman v. Matte-
son, 4 R. I. 539.

11. Buckout v. Swift, 27 Cal. 433, 83 Am. Dec. 90; Cooper v. Davis, 15 Conn. 556;
Clark v. Reyburn, 1 Kan. 281; Harris v. Bannon, 78 Ky. 568; Webber v. Ram-
sey, 100 Mich. 58, 58 N. W. 625, 43 Am. St. Rep. 429; Hamlin vy. Parsons,
12 Minn. 108, 90 Am. Dec. 284; Kircher v. Schalk, 39 N. J. L. 335; Wilson v.

(Footnote 11 continued on next page)

INTEREST OF MORTGAGEE 245

the legal title is in the mortgagee; and other cases have held
that a bona fide purchaser for value from the mortgagor
takes the timber subject to the paramount rights of the
mortgagee, | except where the mortgagee has waived his
prior claim. ”

The rights of a mortgagor as to cutting timber prior to
foreclosure may be limited by a covenant in the mortgage
not to cut for sale or not to cut more than a certain amount, *
or an agreement to apply the proceeds of the timber cut
on the debt secured by the mortgage.* <A license by the
mortgagor for the cutting of timber for specific purposes will
not excuse a use of the proceeds for a different purpose. °

$161. Remedies Available to Mortgagee After Fore-
closure. Some decisions have held that a mortgagee has
no action for damages until after a default by the mortgagor
and a showing through foreclosure that the security of the
mortgage is insufficient to cover the mortgage debt, ° but
such a rule manifestly does not afford the mortgagee a sat-
isfactory protection. If upon foreclosure the property does
not bring enough to satisfy the mortgage, the mortgagee has
an action against the mortgagor for any cutting of timber
which substantially impaired the security, 7 but there is con-
flict of authority as to whether the mortgagee may after
foreclosure recover damages from the mortgagor for sub-
stantial injuries to the property before foreclosure which did
not impair the security, some cases holding that he may re-
cover * and some that he may not. °

(Footnote 11 concluded from preceding page)
Maltby, 59 N. Y. 126; Peterson v. Clark, 15 Johns. (N. Y.) 205; Cf. Atkinson
v. Hewett, 63 Wis. 396, 23 N. W. 889. (In which purchaser knew of mort-
gage and timber formed chief value of the land); and Searle v. Sawyer, 127
Mass. 491, 34 Am. Rep. 425.

1. Gore v. Jenness, 19 Me. 53; Mosher v. Vehue, 77 Me. 169; Howe v. Wadsworth,
59 N. H. 397; Cf. Banton v. Shorey. 77 Me. 48.

2. Kimball v. Lewiston Steam Mill Co., 55 Me. 494.

3. Moisant v. McPhee, 92 Cal. 76, 28 Pac. 46; Wood v. Lester, 29 Barb. (N. Y.)
145; Chard v. Warren, 122 N. C. 75, 29 S. E. 373; Mann v. English, 38 U. C.
QB. 240;

4. Howe v. Russell, 36 Me. 115; Fredonia Nat’l Bank v. Perrin, 172 Pa. St. 15,
Ba .Atl. Sol,

5. Holbrook v. Greene, 98 Me. 171, 56 Atl. 659.

6. Cooper v. Davis, 15 Conn. 556; Taylor v. McConnell, 53 Mich. 587; Peterson v.
Clark, 15 Johns. (N. Y.) 205; See Lane v. Hitchcock, 14 Johns (N. Y.) 213;
Gardner v. Heartt, 3 Denio (N. Y.) 232.

7. Heitcamp v. La Motte Granite Co., 59 Mo. App. 244; Jones v. Costigan, 12
Wis. 677, 78 Am. Dec. 771.

8. Byrom v. Chapin, 113 Mass. 308.

9. Corbin v. Reed, 43 Iowa 459.

246 MORTGAGE OF STANDING TIMBER

A mortgagor of a farm who remains in possession after a
default on the mortgage may cut timber for fire wood, re-
‘ pairs and other uses which accord with good husbandry. 1

It is the duty of the jury to determine whether the cutting
of timber on mortgaged land is wrongful. ?

§162. Limitations upon Use and Sale of Timber
when Mortgagee is in Possession of Land. A mortga-
gee who is lawfully in possession may cut timber for ordin-
ary uses on the premises and may cut and sell timber for the
purpose of satisfying the debt provided he does no permanent
injury to the property * and he may recover from a stranger
for a timber trespass, * but in both instances he can be com-
pelled by the mortgagor to account for the proceeds as
profits received. It has been held that prior to foreclosure
a mortgagee in possession cannot sell nursery trees growing
on the premises and covered by the mortgage.*® Injune-
tion will be granted a mortgagor to restrain a mortgagee
in possession from committing waste, °and for acts of waste
in the cutting of timber an accounting will be decreed. 7

§163. Rights in Timber After Foreclosure of Mort-
gage on Land. Prior to foreclosure a mortgagor, who has
the legal title to the mortgaged premises, may convey what-
ever interest he has in land or timber subject, of course, to
the lien of the mortgage; but trees which are standing upon
land at the time of a foreclosure sale belong to the pur-
chaser at such sale, even though the mortgagor had pre-
viously contracted to sell them and the mortgagee had re-
leased his lien upon the trees, unless the purchaser at the
foreclosure sale knew at the time of his purchase that the

1. Judkins v. Woodman, 81 Me. 351, 17 Atl. 298, 3 L. R. A. 607; Hapgood v. Blood,
11 Gray (Mass.) 400; Wright v. Lake, 30 Vt. 206; Cf. Estovers, Smith v. Jewett,
40 N. H. 530; 2 Blackstone Com. 35.

. Searle v. Sawyer, 127 Mass. 491, 34 Am. Rep. 425.

. Place v. Sawtell, 142 Mass. 477, 8 N. E. 343; Carson v. Griffin, 11 N. Brunsw. 244.

. Guthrie v. Kahle, 46 Pa. St. 331.

. Dubois v. Bowles, 30 Colo. 44, 69 Pac. 1067.

. Youle v. Richards, 1 N. J. Eq. 534, 23 Am. Dec. 722; Givens v. McCalmont, 4

aor & bo

Watts (Pa.) 460; Farrant v. Lovel, 3 Atk. (Eng.) 723.

. American Freehold Land Mortg. Co. v. Pollard, 132 Ala. 155, 32 So. 630; Perdue
v. Brooks, 85 Ala. 459, 5 So. 126; Gore v. Jenness, 19 Me. 53; Steinhoff v.
Brown, 11 Grant Ch. (U. C.) 114; Sandon v. Hooper, 6 Beav. 246; See Harrill
v. Stapleton, 55 Ark. 1, 16 8S. W. 474.
cf. Tucker Benev. dict, 116 La. 968, 41 So. 226.

J

RIGHTS AFTER FORECLOSURE 247

lien upon the trees had been released.! If timber is cut
and removed by a mortgagor, or one acting under an order
or license from him, with a fraudulent purpose, either before
or after the commencement of foreclosure proceedings, its
value may be recovered by an action on the case in the na-
ture of waste or trover for satisfaction of the mortgage. ?
Upon the acquisition of title under a foreclosure sale a pur-
chaser may obtain an in unction to prevent waste in the cut-
ting of timber by the mortgagor or his vendee, or he may
bring an action on the case, * but timber cut before the fore-
closure sale does not pass to the purchaser at such sale. 4

1. Batterman v. Albright, 122 N. Y. 484, 25 N. E. 856, 19 Am. St. Rep. 510, 11 L.
R. A. 800; Hamilton v. Austin, 36 Hun. (N. Y.) 138; Barber v. Wadsworth,
115 N. C. 29, 20 S. E. 178; Beaufort County Lbr. Co. v. Dail, 111 N. C. 120,
15 S. E. 941.

2. Higgins v. Chamberlin, 32 N. J. Eq. 566; Hagar v. Brainerd, 44 Vt. 294; Langdon
v. Paul, 22 Vt. 205; Lull v. Matthews, 19 Vt. 322.

3. Stout v. Keyes, 2 Dougl. (Mich. 1845) 184, 43 Am. Dec. 465; Van Derveer v
Tallman, et al., 1 N. J. Eq. 9 (1830).

4. Berthold v. Holman, 12 Minn. 335, 93 Am. Dec. 233.

CHAPTER XVI
TREES ON BOUNDARY LINE OR IN HIGHWAY

§164. Rights of Adjoining Landowners Regarding
Trees On or Near Division Line. In an early English
ease | it was held that if A planted a tree upon the extreme
limit of his land and the tree in its growth extended its roots
_into the adjoining land of B, A and B became tenants in ©
common of the tree; but that if all the roots grew in A’s land,
the branches even though they overhung the land of B would
follow the roots and the property of the whole tree would be
in A. Of course the difficulty of determining whether all
of the roots were confined to the land owned by the one on ©
whose land the trunk of the tree stood was so great as to
render this doctrine scarcely capable of application. Another
English case held that the branches would follow the trunk
and the property in them would accordingly be in the one
who owned the land on which the tree stood. 7 The modern
doctrine in both England and America is that all property
right in the tree, its branches and its fruit, is in him upon
whose land it stands even though it be known that the roots
extend into the land held by another. * Ina Michigan case
it was said that if A with the cooperation of the adjoining
owner, who was A’s grantor, established a division fence
and planted trees along his side A might be estopped from
cutting such trees without the consent of the grantor but
that this estoppel would not operate in favor of a successor
to A’s grantor.* That is to say, there was no covenant
which would bind A when his grantor disposed of his in-

1. Waterman v. Soper, 1 Ld. Raym. 737. .

2. Masters v. Pollie, 2 Rolle 141.

3. Lyman v. Hale, 11 Conn. 177, 27 Am. Dec. 728, Hoffman v. Armstrong, 48 N.
Y. 201, 8 Am. Dec. 537 (Aff’m. 46 Barb. 337); Dubois v. Beaver, 25 N. Y. 123,
82 Am. Dec. 326, (Aff’m. Relyea v. Beaver, 34 Barb. 547), Skinner-v. Wilder,
38 Vt. 115, 88 Am. Dec. 645; Holder v. Coates, M. & M. 112, 22 E. C. L. 264;
Millen v. Fandrye, Popham 161; Morrice v. Baker, 3 Bulst. 198; See 1 Wash-

burn Real Prop., Sec. 7; 20 Vin. Abr. 417, 1 Chitty Gen’l. Prac. 652.
4. Reed v. Drake, 29 Mich, 222. ;

248

RIGHTS OF ADJOINING LANDOWNERS 249.

terest in the adjoining land. Under the modern doctrine
an adjoining owner may cut off all branches and roots up
to the line, especially if the owner of the tree has refused
to do so when requested;! but he will be liable in trespass if
he cut ever so little beyond the line ? and in either trespass
or trover if he convert to his own use either the branches or.
the fruit which overhang his land. * The owner of the land
on which the trunk stands may probably cut off the branches
or gather the fruit which overhangs the adjoining land pro-
vided in so doing he does not enter upon the adjoining land, 4
and the adjoining land owner will be liable for assault if he .
attempt by violence to prevent the owner of the tree from
cutting the branches or gathering the fruit in the manner in-
dicated.» Thus it would appear that fruit which should
ripen on overhanging branches and fall upon the adjoining
land, or branches which should be detached by a storm,
would remain the property of the owner of the tree whose
entrance upon the adjoining land for recovery of the same
might be excusable provided no actual damage was done
the adjoining landowner in the effecting of such recovery. ®
It has been held that the adjoining landowner has no
right to cut down a tree or injure its trunk even though the
tree cause him personal inconvenience, discomfort or in-
jury, ’ but relief may be had in the courts if the tree can be
affirmatively shown to constitute a nuisance. ® Such action
might result either in damages or an abatement of the nuis-
ance.
If the branches or roots which intrude over or into the
1. Grandona v. Lovdal, 78 Cal. 611, 21 Pac. 366, 12 Am. St. Rep. 121; Grandona ve
, Lovdal, 70 Cal. 161, 11 Pac. 623; Robinson v. Clapp, 65 Conn. 365, 32 Atl.
939, 29 L. R. A. 582, 67 Conn. 538, 35 Atl. 504, 52 Am. St. Rep. 298; Lyman
v. Hale, 11 Conh. 177, 27 Am. Dec. 728; Bright v. New Orleans R. Co., 114
La. 679, 38 So. 494; Hickey v. Michigan Cent. R. Co., 96 Mich. 498, 55 N.W.
989, 35 Am. St. Rep. 621, 21 L. R. A. 729; Buckingham vy. Elliott, 62 Miss.
296, 52 Am. Rep. 188; Countryman v. Lighthill, 24 Hun. (N. Y.) 405; Eng.
Crowhurst v. Burial Board, 4 Ex. D. 5; Lonsdale v. Nelson, 2 B. OC. 302; Lem-
mon v. Webb, (1895) 3 Ch. Div. 1, 59 J. P. 564, 64 L. J. Ch. 205, 71 L. T. Rep.
N. S. 647, 11 Reports 116. x
2. Newberry v. Bunda, 137 Mich. 69, 100 N. W. 277. ;
8. Lyman v. Hale, 11 Conn. 177, 27 Am. Dec. 728; Hoffman v. Armstrong, 48 N.
Y. 201, 8 Am. Rep. 537.
4. Hoffman v. Armstrong, 48 N. Y. 201, 8 Am. Rep.:537.
5. Hoffman v. Armstrong, 46 Barb. (N. Y.) 337, (Aff’'d in 48 N. Y. 201, 8 Am. Rep.
537).
6. Mitten v. Fandrye, Popham 161.
7. Grandona v. Lovdal, 70 Cal. 161, 11 Pac. 623; Bliss v. Ball, 99 Mass. 597..
8

. Grandona v. Lovdal, 78 Cal. 611, 21 Pac. 366, 12 Am. St. Rep. 121; Grandona
v. Lovdal, 70 Cal. 161, 11 Pac. 623.

250 TREES ON BOUNDARY OR IN HIGHWAY

adjoining land cause an actual injury, damages may be re-
covered from the owner of the tree, but if the branches are
neither poisonous nor noxious by nature, no action can be
brought merely because of their intrusion. !

Felling a tree in such manner that it falls upon the land
of another constitutes a trespass, ? and damages have been
collected from one who allowed the trimmings from a tree
to fall upon adjoining land to the damage of the owner
thereof. *

If the trunk of a tree is intersected by the boundary line
the adjoining owners have a common property in it, though
there is a difference of opinion as to whether they are tenants
in common of the whole tree, or each has an ownership of
that portion of the trunk which stands upon and the
branches which overhang his own land. * However, in all
jurisdictions an action will lie for the destruction or perma-
neht injury of the tree by one adjoining owner without the
_eonsent of the other and treble damages have been allowed
“for such injury. ° Where the theory is held that each ad-
joining owner has a full interest in that part upon or over
his own land ereat liberty will be allowed in the cutting of
branches and roots on his side of the line. ®

Injunctions have been granted to prevent one from plant-
ing near his line willow trees which would injure the land

‘1. Grandona v. Lovdal, 70 Cal. 161, 11 Pac. 623; Buckingham vy. Elliott, 62 Miss.
296, 52 Am. Rep. 188; Hoffman v.* Armstrong, 46 Barb. (N. Y.) 337; Country-
man v. Lighthill, 24 Hun. (N. Y.) 405; See Bliss v. Ball, 99 Mass. 597; Tanner
v. Wallbrun, (1898) 77 Mo. App. 262: Crowhurst v. Burial Board, 4 Ex. D. 5,
and especially Ackerman v. Ellis, (1911) 81 N. J. L.1, 79 Atl. 883; and Smith
v. Giddy, (1904) 2 Brit. Ruling Cas. 897, holding action maintainable for
actual injury though trees not harmful by nature.

2. Newson v. Anderson, 24 N. C. 42, 37 Am. Dec. 406.

3. Mitten v. Fandrye, Popham 161; Lambert v. Bessey, T. Raym. 421, 467; See
Wilson v. Newberry, L. R., 7 Q. B. 31. But see Maryland Code Public Civil
Law, Bagby, 1911, Sec. 366, p. 694. Not liable, if felling neither wilfull nor
careless.

4. Cal. Grandona v. Lovdal, 70 Cal. 161, 11 Pac. 623, 78 Cal. 611, 21 Pac. 366.

Conn. Robinson y. Clapp, 65 Conn. 365, 32 Atl. 939, 29 L. R. A. 582, 67 Conn.
538, 35 Atl. 504, 52 Am. St. Rep. 298.
Del. Quillen v. Betts, 1 Pennew, 53, 39 Atl. 595.
Iowa Musch v. Burkhart, 83 Iowa 301, 48 N. W. 1025, 32 Am. St. Rep. 305,
12 L. R. A. 484.
N. H. Griffin v. Bixby, 12 N. H. 454, 37 Am. Dec. 225.
N. Y. Dubois v. Beaver, 25 N. Y. 123, 82 Am. Dec. 326, (Aff’m Relyea v. Bea-
ver, 34 Barb. 547); Hoffman v. Armstrong, 46 Barb. 337 (Aff’d in 48
N. Y. 201, 8 Am. Rep. 537.)
Pa. Miller v. Mutzabaugh, 3 Pa. Dist. 449; Miller v. Holland, 13 Pa. Co. Ct.
622.
5. Relyea v. Beaver, 34 Barb. 547 (Aff’'d in 25 N. Y. 123, 82 Am. Dec. 326.
6. Robinson vy. Clapp, 65 Conn. 365, 32 Atl. 939, 29 L. R. A. 582, 67 Cosma. 538,
35 Atl. 504, 52 Am. St. Rep. 298. ,

RIGHTS OF ADJOINING LANDOWNERS 201

of an adjoining owner, ! and to prevent the destruction of
boundary trees to the injury of an adjoining owner.? In
a Connecticut case it was said that if the trunk divides,
parts which have more of a perpendicular than a horizontal
direction should be considered a part of the trunk. *

In one state adjoining proprietors are forbidden by
statute to plant on or near the boundary line trees which
will be injurious to a neighbor, and the enforced removal
of such trees is authorized, * and in several others the owner-
ship of boundary trees is regulated by statutes which make
adjoining land owners hold a tree in common if the trunk
stands upon the line. °

$165. Trees Marked as Boundary, Corner or Witness
Trees. In many states statutes were early enacted de-
elaring the cutting of a tree marked for boundary purposes a
misdemeanor or a felony. ® That there was need for

1. Brock v. Connecticut ete. River R. Co., 35 Vt. 373.
2. Robinson v. Clapp, 65 Conn. 365; Musch v. Burkhart, 83 Lowa 301, 32 Am. St.
Rep. 305; Relyea v. Beaver, 34 Barb. (N. Y.) 547; Comfort v. Ever-
hardt, 35 Wkly. Notes Cas. (Pa.) 364.
. Robinson v. Clapp, 65 Conn, 365.
. La. Revised Civil Code La. Merrick, 2d Ed Sec. 691.
Cal. Av. Code 1915, Deeridg, Secs. 833-834; Mont. Revised Code 1907, Sec.
4532 and 4533. See Neb. Compiled Statutes, Brown & Wheeler, 1911,
Sec. 5320 p. 1705, may plant on boundary. N. Dak. Compiled laws,
1913, Sees. 5355 and 5356. Okla. Compiled Laws, 1909, Secs. 7257
and 7258. $8. Dak. Revised Code, 1903, Sec. 292-293.
6. See the following:

a)

nei

Ala. Digest, Laws of Ala. 1843, Clay, p. 418, Sec. 9; Penalty increased in Code
US52e Dis Oey SOC: SL 1OY

Ariz: Compiled Laws, Albany, N. Y., 1871, Ch. 10, sec. 69, p. 80; Same Comp.
Laws, 1877, p. 80; sec. 305.

Ark. Revised Stat:, 1837, Art. IX, sec..5; p: 255.

Calif; Act. April 16, 1850, Stat. Ist. Leg. p. 236, Ch. 99, sec. 69.
Colo. Laws of 1861, p. 302, sec. 64.
Conn. “Gen l Stat: 1866. p. 257, Sec...77.

Del. Code 1852, Sec. 987, (Forfeit to party wronged only)

Fla. Act. Aug. 6, 1868, S. L. p. 79, sec. 61.

Ga. Code of 1845, Hotchkiss, p. 761.

Ida. Act Feb. 4, 1863, Laws Ist. Terr. Ass. p. 451.

Ind. Act June 14, 1852, see Rev. Stat. 1852, p. 437, sec. 33.

Iowa. Code of 1851, sec. 2683.

Kan. Comp. laws. 1879)-sec. 1852°.Gen. St. 1897, p. 3817; sec: 117:

Ky. Rev, Stat. 1852. p.375;,. sec. 7.

Me. Rev... Stat. 1857, p. 694, Sec. S

Ma. Laws 1722, Ch. 8, sec. 2; Laws Md. (1692-1839), Dorsey, Vol. 1, p. 59.

Mass. Laws ol lve, Ch. 28° lb. T8i8, Ch: 32 Lb. 1823; Ch. 113% Rev.Stat,, 1836;
Ch: 126) pe F272.
Mich. Rev. Stat. 1838, p. 633, sec. 42.
Minn. Rev. Stat. Terr. 1851, p. 505, Sec. 43.
Miss. Rev. Code 1857, p. 603, Art. 189.
Mo. Act. Mar: 30,1835, p. 181, sec. 58.
Mont. Acts of Terr. Mont. 1st. Sess. p. 192, sec. 72.
(Footnote 6 continued on next page)

252 TREES ON BOUNDARY OR IN HIGHWAY

statutory prohibition of such acts is indicated by decisions
in New Jersey in 1802 and in Virginia in 1837 to the effect
that the cutting of a line tree was not punishable under any
law in force in those states.! The Virginia act of March
6, 1838 was passed to meet the situation thus presented.
There are now statutes in nearly all, if not all, states im-
posing a fine or imprisonment for the cutting of or mutila-
tion of the marks upon a boundary tree,* and a Federal
statute of June 10, 1896 (29 Stat. L. 321) imposing a penalty

~ (Footnote 6 concluded from preceding page)
b Laws of Ist. Sess. Terr Ass. (1855), Ch. 7. sec. 119, p. 241.
N. H. Act. June 24, 1858, 8S. L. Ch. 2105.
N. J. Act. Feb. 25, 1863.
N. M. Gen. Laws 1880, p: 340, sec. 34.
N. Y. See Rev. Laws. 1829, Vol. 2, p. 695, sec. 32; R. S. 1836, p. 580; R. S.
1846, Vol. 2, p. 780. t
N.D. Session Laws, 1911, ch. 288.
Ohio Rev. Laws, 1824, p. 184, sec. 14.
Okla. Stat. of 1893, p. 519, sec. 2500.
Ore. Act. Feb. 6, 1851, sec. 52. (Gen. Crim. Act, 2d. Leg.)
Pa. Act. Mar. 1, 1799; Act. Mar. 20, 1810, Laws Com. Pa. 1700-1810, Vol.
5, p. 173.
R.I. Rev. Stat. 1857, Ch. 214, sec. 28, p. 534.
Tenn. Code 1858, sec. 4652 Par. 11, and sec. 4654.
Tex. Digest of Laws, Paschal, 1878, Act. No. 2343, p. 460.
Utah Comp. Laws 1876, p. 640, sec. 347.
Vt. Rev. Stat. Burlington, 1840, p. 433, sec. 24.
Va. Act. Mar. 6, 1838, S. L. Ch. 9, p. 22 (See Tate’s Digest, 1841, p. 236)
Sec. 66.
Wash. Act. Mar. 15, 1890, Laws Ist. State Leg. p. 127, sec. 11.
W. Va. Code 1868, p. 685, sec. 27; Act. Mar. 29, 1882, p. 477.
Wis. Stats. of Terr. Wis., Albany, N. Y. 1839, p. 356, sec. 37.
Wyo. Act. Dec. 10, 1869, Gen. Laws ist. Leg., p. 112, sec. 49 (Same Comp.
L. 1876, p. 257, sec. 49); Laws 1890, Ch. 73.
1. State v Burroughs, 7 N. J. L. 426 (Pub. Trenton, 1824) (Cf. 34 N. J. L. 410
below) ; Commonwealth v Powell, 8 Leigh 719.

(However, in Virginia the wilful cutting or carrying away of a tree was held to
be a misdemeanor at common law. See Digest of Laws of Va., Tate, Rich-
mond, 1841, p 236, sec. 65); Cf. State v. West, 10 Tex. 554, (Burden on Def. to
prove inadvertence State v Malloy, 34 N. J. L. 410 (Statute of 1863 construed)

2. Ark. Digest of Maws, 1904, sec. 1922. ge
Colo. Annot. Stat. Mills, 1912, p. 880, sec. 2040.
Conn. Rev. Stat. 1902, sec. 1230.
Del. Code 1915, Sec. 3616.
Ind. Annot. Stat. Burns, 1914, sec. 2317.
Ky. Stat. of Ky., Carroll, 1909, Sec. 1228 (1 to 5 yrs. wilfully,) Sec. 1256
Me. Rev. Stat. 1903, p. 947, sec. 19.
Md. Annot. Code, Bagby, 1914, Vol. 3, p. 317, sec. 23 and 24.
Minn. Gen. Stat. 1913, sec. 8931. ‘ :
Mo. Rev. Laws, 1909, sec. 4604.
Nev. Rev. Laws, 1912, Sec. 6752.
N. J. Comp. Laws (1709-1910) p. 1791. Sec. 150.
NM. Annot. Stat. 1915, Sec. 1576.
N. D. Compiled Laws, 1913, sec. 4290.
Okla. Comp. Laws 1909, Sec. 2710; Revised Laws, 1910, sec. 2779.
Ore. Ore. Laws, Lord, 1910, sec. 1983.
Tenn. Code 1896, Shannon, sec. 6496, Par. 12, Corner tree, Sec. 6503 (felony).
Va. Code 1904, Pollard, sec. 3729.
Wyo. Comp. Stat. 1910, sec. 5867.

BOUNDARY, CORNER OR WITNESS TREES - “253

of not exceeding two hundred and fifty dollars or imprison-
ment for not over one hundred days for the offense of cut-
ting a boundary witness tree or any tree blazed to mark the
line of a government survey.

§166. Trees in Streets and Highways. In some
cities the fee to the land within the streets is in the public
but generally the public has only an easement for the use of
the land comprised within the limits of a street or highway
and the abutting land owners own the fee to the highway.
If there are different landowners on opposite sides of the
highway or street each one owns to the middle of the same.
Where the fee to the street or highway is in the abutting
owner he is entitled to full control and enjoyment of the
land except as the land*is burdened with the easement in
favor of the public. He owns the trees within the street or
highway, ! may remove them at his pleasure ? and is liable
for injuries resulting from their existence. *

If the municipality owns the fee to the street or highway
- it owns the trees therein. Even where the municipality
does not own the fee in the streets or highways it often
under its charter has a right of control over trees along the
streets ° and such control is not abridged by the exercise of a
license on the part of abutting owners in the planting of
trees or by permission granted to a telephone, telegraph,
electric light, or street car company to use.the streets for
specific purposes.® An abutting owner can not be com-

1. Conn. Woodruff v. Neal, 28 Conn. 165,

Ga. Atlanta v. Holiday, 96 Ga. 546, 23 S. E. 509.
Iowa Overman v. May, 35 Iowa 89; Deaton v. Polk County, 9 Iowa 594.
Mass. Denniston v. Clark, 125 Mass. 216.
Mich. Compare Miller v. Detroit etc. R. Co. 125 Mich. 171, 84 Am. St. Rep. 569.
N. H. Baker v. Shepard, 24 N. H. 208.
N. J. Avis v. Vineland, 56 N. J. L. 474, 28 Atl. 1039, 23 L. R. A. 685.
N. Y. Jackson v. Hathaway, 15 Johns 447, 8 Am. Dec. 263; Lancaster v. Rich-
ardson, 4 Lans. 136; Ellison v. Allen, 30 N. Y. Suppl. 441.
Ohio Daily v. State, 51 Ohio St. 348, 37 N. E. 710, 46 Am. St. Rep. 578, 24
L. R. A. 724; Phifer v. Cox, 21 Ohio St. 248, 8 Am. Rep. 58.
R. I. Tucker v. Eldred, 6 R. I. 404.
8S. D. Compare, Lovejoy v. Campbell (S. Dak. 1902), 92 N. W. Rep. 24.
U.S. Barclay v. Howell, 6 Peters 498, 8 L. Ed. 477. See 25 Cent. Dig. Tit.
Highways, Sec. 292.
_ 2. Lancaster v. Richardson, 4 Lans. (N. Y.) 136.
3. Weller v. McCormick, 52 N. J. L. 470, 19 Atl. 1101, 8 L. R. A. 798.
4. Mt. Carmel v. Shaw, 155 Ill. 37, 39 N. E. 584, 46 Am. St. Rep. 311, 27 L. R. A.
580; Baker v. Normal, 81 Ill. 108.
5. Consolidated Traction Co. v. East Orange Tp., 61 N. J. L. 202, 38 Atl. 803.

6. Baker v. Normal, 81 Ill. 108; But,see, Lancaster v. Richardson, 4 Lans. (N. Y.)
136. (Holding owner of fee may cut trees without permission of authorities).

254 TREES ON BOUNDARY OR IN HIGHWAY

pelled to care for trees planted by the municipality, unless a
statute or a city regulation imposes this duty upon him; ?#
and although the municipality may prohibit injuries to
trees in its streets or highways and regulate the planting,
protection and removal of trees, it cannot usually compel an
abutting owner to cut a tree down. ”

The right of the abutting owner to maintain trees or
shrubs along a street or highway is limited by the rights
of the public in general and other persons in particular to
use the street or highway for all purposes comprised within
the easement for a right of way.* Whether the fee to the
street is held by the municipality or by the abutting land-
owner, the town or city may remove either branches of
trees or the trees themselves when reasonably necessary to
make room for sidewalks, a widening of the streets or for

other public purposes.‘ These removals may ordinarily

be made without hearing or notice to the abutting owner °®
but in some jurisdictions a private party cannot remove

even obstructing branches without a permit from the proper —

officials, ° and under some statutes giving a municipal cor-
poration the right to remove trees from streets when public
necessity demands, due notice is necessary prior to removal
by the authorities. 7

When it becomes necessary in the construction, repair or
use of a street or highway, to cut down trees or remove their
branches, the severed trees or branches may be removed to
some place convenient to the owner of the land on which the
trees stood, but in the absence of statutory authority
neither a private person nor the public through its officials
has any right to appropriate them for use in the repair of

. Weller v. McCormick, 47 N. J. L. 397, 1 Atl. 516, 54 Am. Rep. 175.

. Sproul v. Stockton, 73 N. J. L. 158, 62 Atl. 275.

Pinkerton v. Randolph, 200 Mass. 24, 85 N. E. 892.

. Atlanta v. Holliday, 96 Ga. 546, 23 S. E. 509; Mt. Carmel v. Shaw, 155 Ill. 37,
39 N. E. 584, 46 Am. St. Rep. 311, 27 L. R. A. 580 (Reversing 52 Ill. App. 429);
Hildrup v. Windfall, 29 Ind. App. 592, 64 N. E. 942; Everett v. Council Bluffs,
46 Iowa 66; Wilson v. Simmons, 89 Me. 242, 36 Atl. 380; Avis v. Vineland, 56
N. J. L. 474, 28 Atl. 1039, 23 L. R. A. 685; Ellison v. Allen, 30 N. Y. Suppl.
441; Chase v. Oshkosh, 81 Wis. 313, 51 N. W. 560, 29 Am. St. Rep. 898, 15 L.
R. A. 553.

. Chase v. Oshkosh, 81 Wis. 313, 51 N. W. 560, 29 Am. St. Rep. 898, 15 L. R. A. 553.

. State v. Pratt, 90 Minn. 66, 95 N. W. 589.

. Stretch v. Cassopolis, 125 Mich. 167, 84 N. W. 51, 84 Am. St. Rep. 567, 51 L.

R. A. 345; Clark v. Dasso, 34 Mich. 86; See. Bliss v. Ball. 99 Mass. 598.

Pm wN

NO

—

TREES IN STREETS AND HIGHWAYS 255

the road or for other purposes; ! and even where statute
authorizes the use of trees growing within the highway for
repair of the same, as is common in American states, trees
which have been cut by the abutting owner and prepared
for his own use cannot be thus appropriated. ”

Where the abutting owner holds the fee to the street or
highway he can maintain an action in trespass for any un-
justifiable injury to trees within the highway,’ and this
rule has been applied to a highway commissioner removing
a tree as an obstruction, without previous notice to the
owner. * Under statutes the abutting owner may often
maintain the action even when he does not hold the fee in
the highway, ® and in some jurisdictions even where the
statute does not give the right if he has planted and often
tained the trees with the sanction of the municipal authori-
ties. ° In a New York case in which the abutting owner
did not own the fee it was held that he nevertheless had an
action for injury to shade trees caused by the escape of gas
from the pipes which were maintained in the streets by a
corporation, ’ and in a Pennsylvania case an action in
trover was sustained for the cutting of trees ina highway. °

1. Reynolds v. Speers, 1 Stew. (Ala.) 34; Deaton v. Polk County, 9 Iowa 594; Bos-
ton v. Richardson, 13 Allen (Mass.) 146; Baker v. Shephard, 24 N. H. 208;
Makepeace v. Worden, 1 N. H. 16; Ward v. Folly, 5 N. J. L. 485; Niagara
Falls Suspension Bridge Co. v. Bachman, 4 Lans. (N. Y.) 523, (reversed on
other grounds in 66 N. Y. 261); Tucker v. Eldred, 6 R. I. 404; Matthews
Lumber Co. v. Van Zandt County (Tex. Civ. App. 1903) 77 S. W. 960. Eng.
Turner v. Ringwood Highway Board, L. R., 9 Eq. 418, 21 L. T. Rep. N. 8. 745,
18 Wkly. Rep. 424; See 25 Cent. Dig. Tit. ‘““Highways,”’ Sec. 293.
. Goodman v. Bradley, 2 Wis. 257.
. Western Un. Tel. Co. v. Krueger, 30 Ind. App. 28, 64 N. E. 635; Betz v. Kansas
City Home Tél. Co., 121 Mo. App. 473, 97.5. W. 207: Kellar v. Central Tel.
tc, ©Oo., 33 Misc. 523, 105: N. Y. Suppl. 63; Huling v.. Henderson, 161 Pa. St.
553,29 Atl. 276; Andrews v. Youmans, 78 Wis. 56, 47 N. W. 304; O’Connor v.
Nova Scotia Tel. Co. 22 Can. Sup. Ct. 276, (Reversing 23: Nova Scotia 509);
Baunatyne v. Suburban Rapid Transit Co., 15 Manitoba 7; L’Hussier v.
Brosseau, 20 Quebec. Super. Ct, 170.
4. Clark v. Dasso, 34 Mich. 86; Douglas v.. Fox. 31 U.-C. CG. P. 140.
5. Langley v. Augusta, 118 Ga. 590, 45 S. E. 486, 98 Am. St. Rep. 133; Rockford
Gas Light etc. Co. v. Ernst, 68 Hl. App. 300; Kemp v. Des Moines, 125 lowa
640; 101 N.. W. 474: Osborne v. Auburn Tel. Co., 111 N.Y. App. Div. 702, 97
N. Y. Suppl. 874 (Revs’d on other grounds in 189 N. Y. 393, 82 N. E. 428);
Edsall v. Howell, 86 Hun. (N. Y.) 424, 33 N. Y. Suppl. 892; Cf. Sanderson v.
Haverstick, 8 Pa. St. 294; Lovejoy v. Campbell, 16 S. D. 231, 92 N. W. 24;
Douglas: v. Fox, 31 U. C..C. P:. 140 (Canada); Cf. Unwin v.. Hanson (1891), 2
Q. B. 115 (England).

‘6. Lane v. Lamke, 53 N. Y. App. Div. 395, 65 N. Y. Suppl. 1090.

Donahue v. Keystone Gas Co., 181 N. Y. 313, 73 N. E. 1108, 106 Am. St. Rep.

549, 90 L. R. A. 761 (Aff’g 90 N. Y. App. Div. 386, 85 N. Y. Suppl. 478).
8. Sanderson v. Haverstick, 8 Pa. St. 294.

to

w

~v
.

256 TREES ON BOUNDARY OR IN HIGHWAY

Statutes have been passed prohibiting the mutilation of trees.
under police powers. !

It has been held that shade trees are not a nuisance
per se but become such if they in fact interfere with the use
of the highway.” Trees have been held to constitute an
obstruction to a sidewalk. *

A city or other municipal corporation will be liable for any
injury to a person resulting from the falling of a tree, or its
branches, which stands within a street or highway, if it be
shown that the city authorities knew, or might have learned
through the exercise of reasonable diligence, that the tree
constituted a menance to life or limb and made no effort to
remedy the condition or to warn those using the street re-
garding the danger.‘ However, if the circumstances were
such that the municipal authorities could not have reason-
ably suspected that the tree was dangerous,. the corpora-
tion will not be liable for any injury suffered. ®

Trees or shrubs which do not interfere with the use of a
highway are not an obstruction, ° nor isalog chute near the
highway.’ Logs and stumps within the highway ® or
lumber piled therein ® may constitute an obstruction or a
nuisance.

§167. Injuries to Trees by Public Service Corpora-
tions. Telegraph, telephone, electric light, and other com-

1. State v. Merrill, 37 Me. 329.

2. Frostburg v. Wineland, 98 Md. 239, 56 Atl. 811,103 Am. St. Rep. 399, 64 L. R. A. 627.
3. Vanderhurst v. Tholcke, 113 Cal. 147, 45 Pac. 266, 35 L. R. A. 267; Chase v,
Oshkosh, 81 Wis. 313, 51 N. W. 560, 29 Am. St. Rep. 898, 15 L. R. A. 553.

4. Duffy v. Dubuque, 63 Iowa 171, 18 N. W. 900, 50 Am. Rep. 743; Chase v. Lowell,
151 Mass. 422, 24 N. E. 212; McGarey v. New York, 89 N. Y. App. Div. 500,
85 N. Y. Suppl. 861; Norristown v. Moyer, 67 Pa. St. 355; Cf. McLoughlin

v. Philadelphia, 142 Pa. St. 80, 21 Atl. 754, (Injury by window screens).

5. Gubasko v. New York, 14 Daly (N. Y.) 559, 1 N. Y. Suppl. 215; Jones v. Green-
boro, 124 N. C. 310, 32 S. E. 675; But see, Vosper v. New York, 49 N. Y. Super.
Ct. 296. =

6. Crismon v. Deck 84 Iowa 344, 51 N. W. 55; Quinton v. Burton, 61 Iowa 471,
16 N. W. 569; Bills v. Belknap, 36 Iowa 583; Clark v. Dasso, 34 Mich. 86;
People v. Carpenter, 1 Mich. 273; Wheatfield v. Shasley, 23 Misc. (N. Y.)
100, 51 N. Y. Suppl. 835; See Eaves v. Terry, 4 McCord (S. C.) 125.

. Haines v. Barclay Tp., 183 Pa. St. 521, 37 Atl. 560.

. Langworthy v. Green Tp., 88 Mich. 207, 50 N. W. 130.

. McKune vy. Santa Clara Valley Mill etc. Co., 110 Cal. 480, 42 Pac. 980; Smith
v. Davis 22 App. Cas. (D. C.) 298; Covington Sawmill etc. Co. v. Drexilius
120 Ky. 493, 87 S. W. 266, 27 Ky. L. Rep. 903, 117 Am. St. Rep. 593; Holly v.
Bennett, 46 Minn. 386, 49 N. W. 189; Winship v. Enfield, 42 N. H. 197; Pitts-
burgh etc. Bridge Co. v. Com., 4 Pa. Cas. 153, 8 Atl. 217; Cf. Harper v. Kopp,
73 8. W. 1127, 24 Ky. L. Rep. 2342; Friedman v. Snare, etc. Co., 71 N. J. L.
605, 61 Atl. 401, 108 Am. St. Rep. 764, 70 L. R. A. 147; State v. Webb’s River
Imp. Co., 97 Me. 559, 55 Atl. 495; Beardslee v. French, 7 Conn. 125, 18 Am.
Dec. 86.

oon

INJURIES BY PUBLIC SERVICE CORPORATIONS 257

panies performing similar public functions have no legal
right to enter, without the consent of the owner, upon pri-
vate property for the purpose of cutting the trunks or
branches of trees which interfere with the erection, main-
tenance or operation of such public utilities;! and such
action will ordinarily give rise to an action in trespass even
though the only cutting which is done is the trimming off
of branches which overhang a street or highway. Damages
will also be allowed to the abutting landowner for any un-
necessary or wanton injury to trees which stand within a
street or highway; ? even where such owner does not hold
the fee to the land upon which the tree stands, and especially
if he has planted the trees with the acquiescence of the
city. *

The court holdings are in direct conflict as to the lia-
bility for damages where the amount of cutting or trimming
was no greater than was reasonably necessary for the con-
struction, maintenance and operation of the telephone line
or other public utility, some decisions allowing damages 4

1. Til. Western Union Tel. Co. v. Satterfield, 34 Ill. App. 386, 2 Am. Electric
Cases 296.
La. Tissot v. Great Southern Tel. etc. Co., 39 La. Ann. 996, 3 So. 261, 4 Am.
St. Rep. 248.

Miss. Clay v. Postal Tel. Cable Co., 70 Miss. 406. 11 So. 658;
N. Y. Van. Siclen v. Jamaica Electric Light Co., 45 N. Y. App. Div. 1, 61 N.
Y. Suppl. 210 (Aff’d in 168 N. Y. 650, 61 N. E. 1135).
Tenn. Cumberland Tel. etc. Co. v. Shaw, 102 Tenn. 313,52 S. W. 163; Cumber-
land Tel. etc. Co. v. Poston, 94 Tenn. 696, 30 S. W. 1040; Memphis
Bell Tel. Co. v. Hunt, 16 Lea 456, 1 S. W. 159, 57 Am. Rep. 237.
Tex. Southwestern Tel. etc. Co. v. Branham (Civ. App. of Tex..1903), 74
S. W. 949.
Can. Gilchrist v. Dominion Tel. Co., 19 N. Brunsw. 553; Roy. v. Great North-
western Tel. Co., 2 Quebec Super. Ct. 135.
See Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 55 Am, St. Rep.
930, 1381 L. R. A. 193; Tissot v. Great Southern Tel. etc. Co., 39 La.
Ann, 996, 3 So. 261, 4 Am. St. Rep. 248; See Wyant v. Central Tel.
Co., 123 Mich. 51, 81 N. W. 928, 81 Am. St. Rep. 155, 47 L. R. A.
497; Bronson v. Albion Tel. Co., 67 Neb. 111, 93 N. W. 201, 60 L. R. A.
426; Van Siclen v. Jamaica Electric Light Co., 45 N. Y. App. Div. 1,
61 N. Y. Suppl. 210 (Aff’d in 168 N. Y. 650, 61 N. E. 1135); Memphis
Bell Tel. Co. v. Hunt, 16 Lea 456, 1 8S. W. 159, 57 Am. Rep. 237; Gil-
christ v. Dominion Tel. Co., 19 N. Brunsw. 553.
3. Osborne v. Auburn Tel. Co., 111 N. Y. App. Div. 702, 97 N. Y. Suppl. 874.
4. Conn. Bradley v. Southern New England Tel. Co., 66 Conn. 559, 34 Atl. 499.
32 L. R. A. 280, under statutory provision.
ti. Board of Trade Tel. Co. v. Barnett, 107 Ill. 507, 47 Am. Rep. 453.
Miss. Cumberland Tel. etc. Co. v. Cassedy, 78 Miss.°666, 29 So. 762.
Mo. Cartwright v. Liberty Tel. Co., 205 Mo. 126, 103 S. W. 982, 12 L. R. A.
N. S. 1125; State v. Graeme, 130 Mo. App. 138, 108 S. W. 1131; Mc-
, Antire v. Joplin Tel. Co., 75 Mo. App. 535.
Neb. Bronson y. Albion Tel. Co., 67 Neb. 111, 93 N. W. 201, 60 L. R. A. 426.
N. Y. Osborne y. Auburn Tel. Co., 111 N. Y. App. Div. 702, 97 N. Y. Suppl. 874.
(Footnote 4 cont!nued on next page)

..

2.

258 TREES ON BOUNDARY OR IN HIGHWAY

and others refusing to allow them.1 In the absence of
statute the determination of the question whether damages
should be allowed in such cases should apparently depend
upon whether the use of the street or highway for the pur-
poses of the corporation was considered an ordinary use of
the highway or as an additional servitude not embraced
within the easement held by the public.? In some juris-
dictions such use is held an additional servitude * and in
others it is not so considered. 4

If the quasi public corporation is not liable for “the
necessary cutting of trees, it is not necessary for it
to give notice to the abutting owner so as to af-
afford him opportunity to do the trimming himself
unless the statute requires such notice;®> and it has
been held that a telephone company which is required to
move its wires and poles from a street to the adjoining side-
walk, is not liable to an abutting owner for the trimming of
trees necessary to the removal.® Under a Canadian
statute authorizing a telegraph company to remove branches
overhanging the street which interfered with its line, it was
held that the company was not liable to an abutting owner
provided the necessary trimming was done without an en-
try upon his land.’

(Footnote 4 concluded from preceding page)

Ohio See Daily v. State, 51 Ohio St. 348, 37 N. E. 710, 46 Am. St. Rep. 578,
24 L. R. A..724 (injury to ornamental trees in highway under Ohio
statute).

Pa. Marshall v. American Tel. etc. Co., 16 Pa. Super. Ct. 615, under statutory
provision.

Can. See O’Connor v. Nova Scotia Tel. Co., 22 Can. Sup. Ct. 276; Gilchrist
v. Dominion Tel. Co., 19 N. Brunsw. 553; Hodgkins v. Toronto, 19
Ont. App. 537; Compare O'Connor v. Nova Scotia Tel. Co., 23 Nova
Scotia 509.

1. Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 55 Am. St. Rep. 930,
31 L. R. A. 193; Wyant v. Central Tel. Co., 123 Mich. 51, 81 N. W. 928, 81
Am. St. Rep. 155, 47 L. R. A. 497; Southern Bell Tel. Co. v. Constantine, 61
Fed. 61, 9 C. C. A. 359, 4 Am. Electric Cas. 219, 23 U. S. App. 56; See also,
Western Union Tel. Co. v. Rich, 19 Kan. 517, 27 Am. Rep. 159, 1 Am. Elec.
Cas. 271; Dodd v. Cons. Trac. Co. 57 N. J. L. 482.
2. Wyant v. Central Tel. Co., 123 Mich. 51, 81 N. W. 928, 81 Am. St. Rep. 155,
47 L. R. A. 497; Bronson vy. Albion Tel. Co., 67 Neb. 111, 93 N. W. 201, 60
L. R. A. 426; But see, Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So.
1, 55 Am. St. Rep. 930, 31 L. R. A. 193; and McAntire v. Joplin Tel. Co.,
75 Mo. App. 535.
. See Eminent Démain, 15 Cyc. 681, 682.
Ibid.
. Wyant v. Central Tel. Co., 123 Mich. 51, 81 N. W. 928, 81 Am. St. Rep. 155,
47 L. R. A. 497.
6. Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1, 55 Am. St. Rep. 930,
31 L. R. A. 193; Southern Bell Tel. Co. v. Constantine, 61 Fed. 61, 9 C. C. A. 359.
7. Roy v. Great Northwestern Tel. Co., 2 Quebec Super. Ct. 135.

or oo

INJURIES BY PUBLIC SERVICE CORPORATION 259

In a Nebraska case it was held that even where the cir-
cumstances were such as to entitle an abutting landowner to
recover damages at law, injunction against the one threaten-
ing the trimming of trees growing in the street would not be
granted unless there were a, showing of special conditions
which made the remedy at law inadequate. !

The cutting of trees by public utility corporations is em-
braced within the statutes making it an indictable offense
for any one to cut down or injure fruit, shade or ornamental
trees owned by another, ? and oak and hickory trees growing
along a highway have been held to be shade trees within the
purview of such a statute. *

§168. Trees Subject to Eminent Domain. ‘Trees
are subject to condemnation proceedings, * except that
gardens and orchards are in some jurisdictions exempt from
condemnation. Not only will the value of the trees within
the right of way of a railroad be considered in condemnation
proceedings, but compensation has been allowed for injury
to trees growing outside the right of way, * and_ telegraph,
telephone, electric light, electric railroad and other power
companies may be required to compensate the owner of
trees for their removal or injury whether they have grown
naturally or have been planted within a highway or on
either inclosed or.uninclosed adjoining land.* In such
cases, where the trees are not primarily timber trees with a
commercial value, the measure of damages will be the differ-
ence between the value of the property as a whole before and
after the trees were cut or injured; and the value of the trees
as thus determined may be greatly in excess of whatever
sale value they may have had after severance.’ Where

1. Bronson vy. Albion Tel. Co., 67 Neb. 111, 93 N. W. 201, 60 L. R. A. 426.

2. Southern Bell Tel. Co. v. Allen, 109 Ala. 224, 19 So. 1, (Under Sec. 7833, Ala.
Code).

3. Russellville Home Tel. Co. v. Commonwealth, 109 S. W. 340, 33 Ky. L. Rep. 132
But see St. Joseph Etc. R. Co. v. Dryden, 11 Kan. 186; Western Union Tel.
Co. v. Rich 19 Kan. 517, 27 Am. Rep. 159 (Tel. Co. serving railroad may cut
trees standing within right of way, if necessary).

4. Preston v. Dubuque etc. R. Co., 11 Iowa 15; Hayden v. Skillings, 78 Me. 413,
6 Atl. 830.

5. Haislip v. Wilmington etc. R. Co., 102 N. C. 376, 8 8. E. 926; Griffin v. Pennsyl-
vania and Schuykill Valley R. Co., 2 Del. Co. (Pa.) 425.

6. McAntire v. Joplin Tel. Co., 75 Mo. App. 535; Marshall v. American Tel. etc.
Co., 16 Pa. Super. Ct. 615; Cf. Gilmore v. Pittsburgh etc. R. Co., 104 Pa. St.
275; Lafferty v. Schuykill River East Side R.” Co., 124 Pa. St. 297, 16
Atl. 869, 10 Am. St. Rep. 587, 3 L. R. A. 124.

7. Marshall v. Amer. Tel. etc. Co., 16 Pa. Super. Ct. 615.

260 TREES ON BOUNDARY OR IN HIGHWAY

a hedge or young trees are capable of removal, the cost of
removal may be assessed in condemnation proceedings. !
In determining the decrease in the value of property caused
by a change in the grade of a street or highway, any destruc-
tion of, or injury to, shade trees should be considered; ?
but an Oregon case held that in estimating the damage to
timber on a railroad right of way, the timber cut by the rail-
road company from lands outside the right of way limits
should not be included.* Where timber land was taken
for forestry purposes under a New York statute, * it was
held that the one who held a contract with the owner of the
land for the timber upon it was entitled under condemnation
proceedings to the value of the timber on the stump with
interest on such value from the time of the appropriation
until the award was perfected.® There have been many
decisions under state laws or city ordinances which encour-
age or regulate the planting and care of trees in streets or
highways. °

_

. Shawnee County Com’rs v. Beckwith, 10 Kan. 603.
2. See Cook v. Ansonia, 66 Conn. 413, 34 Atl. 183; Holley v. Torrington, 63 Conn.
426, 28 Atl. 613; Shelton Co. v. Birmingham, 61 Conn. 518, 24 Atl. 978; See

Telephone and Tel. Co. c. Forke, 2 Tex. App. Civ. Cas. Sec. 368; Seattle etec.-

R. Co. v. Scheike, 3 Wash. 625, 29 Pac. 217, 30 Pac. 503.

. Oregon etc. R. Co. v. Barlow, 3 Ore. 311.

. Chap. 220, Laws of 1897.

. Turner v. State, 67 N. Y. App. Div. 393, 73 N. y. Suppl. 372.

. Jefferson County v. Hudson, 20 Kan. 71; Sharon v. Smith, 180 Mass. 539, 62

' N. E. 981; Chase v. Lowell, 149 Mass. 85, 21 N. E. 233; Com. v. Wilder, 127

Mass. 1; White v. Godfrey, 97 Mass. 472; Smith v. Nobles County, 37
Minn. 535; Bigelow v. Whitcomb, 72 N. H. 473, 57 Atl. 680. 65 L. R. A.
676.

Qo Pr wo

e

CHAPTER XVII

TREES, NURSERY EQUIPMENT AND SAWMILLS
_AS FIXTURES

§169. Definition of Fixtures. In the administration
of the common law in England the doctrine of fixtures was
evolved. The principles which were developed there have
been applied in America except as statutory enactments
have required the courts to modify such principles.

A fixture has been defined “as” a personal chattel sub-
stantially affixed to the land, but which may afterwards be
lawfully removed therefrom by the party affixing it, or his
representatives, without the consent of the owner of the
freehold.’’+ Fixtures have also been defined as ‘‘things of
an accessory character, annexed to houses or lands, which
become immediately on annexation part of the realty it-
self. It will be noted that these definitions are essentially
contradictory. The latter definition follows the earlier con-
ception of the common law, which was developed at a time
when realty was held in the greatest esteem. With social
and industrial development came a realization that the rule
quicquid plantatur solo, solo cedit, was harsh and impractic-
able as to things which were annexed to the land for business
purposes or for the personal convenience of a tenant, and the
theory of trade and domestic fixtures arose. Thus, although
the earlier name “‘fixtures,’’ which had been used to indicate
that the personal chattels annexed to land had lost their
identity as movable chattels, was retained, the meaning of
the term was essentially reversed, and “‘fixtures’’ came to be
used to designate those things which could be removed, even
though they were attached to the realty to the extent which

1. Black’s Law Dictionary, 2d Ed. 1910, See Cook v. Whiting 16 Ill. 480; Teaff v.
Hewitt 1 Ohio St. 511, 59 Am. Dec. 634.

2. Wharton Law Dict. 7th Ed. 1883. See also American Statute Law. Stimson,
Boston, 1886, Vol. 1, Sec. 2100.

261

262 TREES AND EQUIPMENT AS FIXTURES

had formerly been held to destroy their identity and mov-
able character.

In view of the confusion that has arisen because of the
ambiguous use of the term “‘fixtures,’’ it has been suggested
that the word be used to designate any personal chattel or
movable object attached to realty and that the qualifying
words ‘‘movable’’ or “‘irremovable”’ be prefixed to the word
“‘fixtures’’ so as to clearly indicate the character of the
chattels annexed. The ultimate test now recognized as to
trade fixtures is not so much the degree of annexation as the
intent and purpose of the annexor. The character of the
annexed thing as realty or personalty is dependent upon the
establishment of certain facts as to the circumstances sur-
rounding the annexation.

§170. Trees and Nursery Appliances as Fixtures in
England. Under the early common law fixtures, being
considered a part of the freehold, were exempt from distress
for rent, fines, duties, ete. An early statute ! modified this
rule to the extent of allowing landlords to distrain fructus
industriales, such as corn, grass and hops; but trees and
shrubs in nursery grounds were considered to partake of the
nature of frutcus naturales to an extent which removed them
from the operation of this law. ?

In Penton v. Robert * Lord Kenyon held that nurserymen
and gardeners might remove greenhouses and similar strue-
tures erected at their own expense in connection with the
prosecution of their business on leased premises, but in the
ease of Elwes v. Maw‘ which was decided subsequently,
Lord Ellenborough declined to extend to agricultural tenants
the privileges of removal which had been granted tradesmen
by statutory exception. > An English ease also held that an
outgoing tenant of a garden ground could not plow up the
strawberry beds in full bearing at the end of his term, even
though he had purchased them of the preceding tenant and
though it was shown to be the custom for the incoming
tenant to pay the outgoing one the appraised value of such
11 Geo. 2 Chap. 19 Sec. 8.

Law of Fixtures, Amos and Ferard, Gould & Banks, New York, 1830.

2 East 88, 91, 4 Esp. 33, 6 Rev. Rep. 376 (1801).
3 East 38, 56, 6 Rev. Rep. 523, 2 Smith’s Lead. Cas. (7th Ed.) 162. (K. B.

Po

Misc. I 1802). See Buckland v. Butterfield 2 Brod. & Bing. 58.
5. See Law of Fixtures, Amos and Ferard, N. Y. (1830), p. 46, 52.

THE RULE IN ENGLAND 263

plants. ! However, in this case the injury appears to have ©
been considered a malicious destruction, outside the regular
course of business, and with no reasonable object. The
modern English rule undoubtedly is that gardeners and nurs-
erymen may not only remove greenhouses and other trade
equipment * but may remove trees and shrubs which have
been planted by them with an express view to sale if they
are susceptible of removal without destruction, * but a per-
son not professing to be a nurseryman or gardener, who
raises young trees on demised land with a view to trans-
planting them on the same premises is not entitled to sell or
remove such stock at the end of his term. +

$171. Trees and Nursery Appliances as Fixtures in
the United States. The refusal of Lord Ellenborough in
Elwes v. Maw to except agricultural fixtures from the gener-
al common law rule has been followed by the courts in
America, but there has been a tendency through judicial
decisions and legialstive enactments to bring such fixtures
into the field of trade fixtures.° In agricultural fixtures
the intention of the annexor has constantly received an in-
creased attention, while less importance has been attributed
to the physical character of the annexation. In the United
States today, not only are greenhouses and similar struc-
tures erected by a nurseryman for business purposes con-
sidered trade fixtures, ® but trees grown for sale purposes
are likewise subject to removal as trade fixtures. ‘

1. Wetherell v. Howells, 1 Camp. N. P. C. 227 (1808).

Zaolears Vv. ©anender (1901) .2-Ch.. 388;-65. J.P. 615, 70: LL: J. Ch; 621, 84 L. T.
Rep. N. S. 618, 49 Wkly Rep. 584.

oa wvardall v. Usher 3: Scott,.N.R:.508 (1841), 10 LJ. Nos. OG. PP. 316, 7 Taunt. 191,
(Cannot sell trees cultivated for fruit they will produce.)

Oakier vy. wwonck, io: RK. 1 Exch. 159, 4 Hi: and: ©. 251; 12: Jours N.-S..253:°35

L. J. Exch. 87, 14 L. T. Rep. N.S. 20, 14 Wkly Rep. 406 (1866). ad

4. Wyndham v. Way, 4 Taunt. 316, 13 Rev. Rep. 607 (1812). See Grey v. Cuth-
bertson 2 Chit. 482, 18 E. C. L. 397.

5. See Van Ness v. Pacard, 2 Pet. (U. 8.) 137, 7 L. Ed. 374; Harkness v. Sears 26,
Ala. 493, 62 Am. Dec. 742; Holmes v. Tremper 20 Johns (N. Y.) 29, 11 Am.
Dec. 238; Wing v. Gray 36 Vt. 261, Law of Fixtures, Bronson, Keefe-Davidson,
St. Paul,. Minn. 1904, p. 31 et seq.; 13 Am. & Eng. Enc. Law (2 Ed.) p. 646.

6. Free v. Stuart, 39 Neb. 220, 57 N. W. 991.

7. Fox v. Brisac 15 Cal. 223 (1860); Maples v. Millon 31 Conn. 598; Adams v. Bea-
dle 47 Iowa 439; 29 Am. Rep. 487; Price v. Brayton 19 Lowa 309; Whitmarsh
v. Walker 1 Metc. (Mass.) 313; Miller v. Baker 1 Metc. (Mass.) 27;
Brooks v. Galster 51 Barb. (N. Y.) 196, 1868; King v. Wilcomb 7 Barb. (N.
Y.) 263 (1849); Duffus v. Bangs 122 N. Y. 423, 427 (1890) Aff'g 50 Supr. Ct.
(43 Hun) 52, 53 (1887). See also Dubois v. Bowles 30 Colo. 44, 69 Pac. 1067;
Smith v. Price 39 Ill. 28, 89 Am Dec. 284; Holmberg v. Johnson 45 Kan. 197
(1891); Adams v. St. Louis Etc. Ry. Co. 138 Mo. 242, 250, (1897); Hamilton
v. Austin 36 Hun. (N. Y.) 138.

2

264 TREES AND EQUIPMENT AS FIXTURES

-« Trees which have been planted in a nursery by the own ~

of the land are a part of the land and pass when the land is«

conveyed by a deed or mortgage, ! and they would doubt-
less descend to the heir and could not be taken by the ex-
ecutor or administrator. However, a mortgagor of land
may sell such trees for transplanting in the regular course:
of business‘as long as he has the right to redeem the land. ?

It has been held that a. chattel mortgage on unsevered.

nursery stock which was not clearly in condition for trans-
planting at the time of the mortgage, would not prevail
against a prior_mortgage of the land; * but other cases have
indicated that through agreements between the owner and
the tenant of the land as to the right of removal, nursery
stock, attached to the land, may nevertheless be person--
alty.4 .

§172; Rule as to Fixtures Dependent upon Relation-

ship between Parties. “The rule of quicquid plantatur
solo, solo cedit, is applied with greater vigor in favor of the
inheritance as between executor and heir than in the rela-
tions of landlord and tenant, and tenant for life, or in tail,
and remainderman or reversioner. Itis equally well settled,
that in the absence of evidence of specific intention varying
the rights of the parties, the same strict rule whigh prevails
between heir and executor, prevails also between the grantor
and grantee, and mortgagor and mortgagee of the land.” ®
“Between a grantor and grantee and mortgagor and mort-
gagee the effort of a court is always to ascertain the intent
of the parties, and to give it effect. If their language
affords evidence that a chattel was intended to pass, it will
of course pass, whether it be a mere chattel or one which by
afinexation has become part of the realty. But where no
specific intention is collectible, or where the conveyance is
of land by metes and bounds, and on the land a building
1. Dubois v. Bowles 30 Colo. 44, 69 Pac. 1067; Maples v. Millon 31 Conn. 598;
Smith v. Price 39 Ill. 28, 89 Am. Dec. 284; Adams v. Beadle 47 Iowa 439, 29
Am. Rep. 487; Hamilton v. Austin 36 Hun. (N. Y.) 138 (1885), 43 Supr. Ct.;
See 23 Cent. Dig. tit. Fixtures, Sec. 34, 49.
2. Adams v. Beadle 47 Iowa 439, 29 Am. Rep. 487 (1877); Price v. Brayton 19 Iowa
. 309; Miller v. Baker 1 Metc. (Mass.) 27 (1840) 3 Law Rep. 148.
3. Adams v. Beadle 47 Iowa 439. :
4. Wallace v. Dodd, 136 Cal. 210 (1902); Adams vy. St. Louis Etc. Ry. Co. 138 Mo.
242, 250 (1897); Liu Kong v. Keahialoa, 8 Hawaii511(1892). See Ewell’s

Fixtures, 2 Ed. Callaghan & Co., Chicago, (1905). p. 79 (x53) p. 99 (x64).
5. Ibid. p. 378.

RELATIONSHIP BETWEEN PARTIES 265

stands in which is the thing in controversy, then it will pass
- on or not according as the thing is or is not in law a part of
the realty.’ !

Many court decisions and some legal treatises on real
estate and the law of fixtures have even considered as fix-
tures trees which have grown naturally on land.? In some
American states there are statutes declaring that where
there is an indictment for the unlawful taking of trees, the
_ trees shall not be considered as fixtures.* It seems to the

author that trees which have grown naturally can never
properly be considered as fixtures, except possibly within
a nursery and while yet small enough to be removed in the
regular course of business.

§173. Sawmills and Related Structures or Mechani-
cal Devices as Fixtures. These principles of the law of
fixtures are of interest to foresters and lumbermen, not only
as they affect the right to remove young trees which have
been planted in nurseries, but also because of their bearing
upon the right to remove sawmills and other trade fixtures
used in the lumbering industry. Thus it has been held that
‘a Sawmill was not a part of the realty as between a chattel
mortgagee of the same and a vendor of the land on which it
stood, * but of course in each case that arises the decision
as to the nature of the property must depend upon the mode
of annexation, the purpose for which the annexation was
made, and the intention of the annexor. It is apparently
well settled that a sawmill built upon timbers lying upon
the surface of the ground, and erected with a view to re-
moval when the timber within convenient reach shall be cut

1. Ewell’s Fixtures, 2d Ed. Callaghan & Co., Chicago (1905) p. 386. cf. Murdock v.
Gifford 18 N. Y. 28 (1858).
2. Johnson v. State 100 Ala. 55 (1893); McCall v. State 69 Ala. 227 (1881); Holly.
v. State 54 Ala. 238. Bonham v. State 65 Ala. 456 (1880) Nelson v. Nelson
6 Gray (Mass.) 385 (1856); State v. Thompson 93 N. ©. 537, (1885); State v.
Fay 82 N. C. 679 (1880); Comfort v. Fulton 39 Barb. 56 (N. Y. 1861). See
Jackson v. State 11 Ohio St. 104. Schulenberg v. Harriman 88 U. S. 44, 64
(1874); Nelson v. Graff 12 Fed. 389 (U. S. C. C. Mich. 1882) Reg. v. Harris
11 Mod. 113. Blackstone 4 vol. p. 232. Law of Fixtures, Amos & Ferard
p. 266. Law of Fixtures, Ewell, pp. 65, 70, 668. Law of Fixtures, Bronson,
p. 393.
3. Revised Statutes of Nebraska, 1913, Sec. 8683. Cf. Civil Code of Cal. 1915,
Deering, Sec. 660.
4. Burrill v. Wilcox Lumber Co., 65 Mich. 571. (1887). Cf. Ewell’s Fixtures, 2d
Ed. 1905, pp. x42 (60), x272 (381).

266 TREES AND EQUIPMENT AS FIXTURES

out, is personalty.' However, machines such as a shingle
machine or a planer, closely integrated with a stationary
mill ? or detachable appliances such as circular saws when
attached to the machinery are held to be a part of the
realty. *

While annexed, fixtures are subject to the general rules
regarding trespass upon realty. Since the plaintiff must
‘have possession to maintain the action quare clausam fregit,
this action cannot be brought by a landlord either against
the tenant of the premises or against a trespasser during the —
tenancy. ‘Trees or other tangible things when severed from
the realty become personalty, but if they are accidentally or
wrongfully severed they remain the property of the owner
of the realty and he may bring an action of de bonis asportatis
against the tenant or a stranger who appropriates them.
Although a tenant can bring trespass quare clausam fregit.
for any injury to the fixtures while annexed, it would seem
that he could not bring de bonis asportatis against the land-

1. Tillman v. DeLacy, 80 Ala. 103 (Farm engine, mortgage); Empire Lbr. Co. v.
Kiser, 91 Ga. 643, 17 S. E. 972 (Sawmill under statute giving lien thereon for
supplies.) Taylor v. Watkins, 62 Ind. 511 (Sawmill, realty mortgage.) Lans-
ing Iron & Engine Works v. Walker, 91 Mich. 409 (Sawmill, engine bricked in,
yet personalty.) Brown v. Little, 6 N. W. 244 (Sawmill on timber); Crane v.
Brigham, 11 N. J. Eq. 29 (Water power sawmill, engine added in dry year;
personalty.) Randolph v. Gwynne, 7 N. J. Eq. 88 (Engine in water power paper
mill, personalty.) Farrar v. Cauffetete, 5 Denio (N. ¥y 527 (Machinery on
leased land, personalty). Hershberger v. Johnson (Ore,) 60 Pac. 838 (Saw-
mill set under lease, recited to be personalty). Vail v. Weaver, 132 Pa. 363,
19 Am. St. Rep. 598 (Electric light plant, personalty.) Hughes v. Edisto Cy-
press Shingle Co., 51 S. C. 1, 28 S. E. 2 (Sawmill set under lease to cut timber
there.) Padgett v. Cleveland, 33 S. C. 339 (Sash and door mfr., engine not
realty.) But see Potter v. Cromwell, 40 N. Y. 287, 100 Am. Dec. 485 (Grist
mill realty.) Kile v. Giebner, 114 Pa. 381, 7 Atl. 154 (Sawmill realty.) Tunis
Lbr. Co. v. Dennis Lbr. Co., 97 Va. 682, 34 S. E. 613 (Dry kiln erected as re-
quired by lease held realty). See Alexander v. Beekman Lbr. Co., 78 Ark.
169, 172; 95 S. W. 449. State v. Livermore, 44 N. H., 386 (Word “‘sawmill”
does not necessarily imply a building). DeLoach Mill Mfg. Co. v. Bonner
(Ark.) 43 S.W. 504. (Warranty of mill did not authorize damages for loss on
logs delivered to site, too remote and not contemplated.)

2. Corliss v. McLagin 29 Me. 115; Trull v. Fuller 28 Me. 545. But see Wells v.
Maples 15 Hun (N. Y.) 90; State v. Goodnow, 80 Mo. 271.

3. Burnside v. Twitchell 43 N. H. 395; Bigler v. New York Cent. Ins. Co. 20 Barb.

» (N. Y.) 635; Clark v. Hill 117 N. C. 11; Breman v. Whitaker 15 Ohio State 446;
Newhall v. Kinney 56 Vt. 591; State v. Avery 44 Vt. 629; Wash. Nat'l Bank of
Seattle v. Smith 15 Wash. 160. cf. Alexander v. Beekman Lbr. Co. 70 Ark.
169, 95 S. W. 449 (covering shed not part of sawmill) Liberty County Land
Ete. Co. v. Barnes 77 Ga. 752, 1 S. E. 378 (goods in commissary store not
part of mill.) See also Graham v. Magann Fawke Lbr. Co. 118 Ky. 192, 80
S. W. 799, 26 Ky. L. Rep. 70: Bogard v. Tyler 55 S. W. 709, 21 Ky. L. Rep.
1452; Frost’s Detroit Lbr. Etc. Works v. Miller’s Mut. Ins. Co. 37 Minn. 300,
34 N. W. 35, 5 Am. St. Rep. 846, Dexter v. Sparkman 2 Wash. 165; 25 Pec,
1070; In re Gosch 121 Fed. 604. See State v. Wilbert’s Sons Lbr. & Shingle
Co. 26 So. 106.

SAWMILLS AS FIXTURES 267

lord after the severance of the fixtures. Some courts have
held that the execution of a chattel mortgage on a fixture
effects a constructive severance and makes the subject mat-
ter of the mortgage personalty, ! but in other jurisdictions
such a severance will not be effective as against a purchaser
of the land. ? and a parol reservation of a fixture is generally
held inoperative either on the ground that the parol evi-
dence is inadmissible to prove the reservation * or on the
eround that the fixtures are realty and thus within the
statute of frauds.* Ordinarily fixtures are not considered »
an interest in land of such character as to require a writing’
for their transfer, except as between a grantor and grantee
of the realty to which the fixtures are annexed.* Fixtures
may of course be constructively severed by a writing which
conforms to the requirements of a conveyance of realty in
that jurisdiction, ° or by an express ecxeption in a deed of
the land.’ The giving of a bill of sale, or a chattel mort-
gage, on articles annexed at the time of the execution and
delivery of a mortgage on realty has been held to show an
intention by the parties to the mortgage that the annexed
articles were to be considered personalty and not subject to
the realty mortgage. °

Chattels so annexed by the owner of land as to be ordinari-
ly considered a part of the land cannot be attached as goods
and chattels under a judgment against the land owner; ®
but in an execution against a tenant all fixtures which are
removable by him may be levied upon as goods and chat-
tels. 1°

- Manwaring v. Jenison 61 Mich. 117, 27 N. W. 899.

. Madigan v. McCarthy 108 Mass. 376, 11 Am. Rep. 371; Burk v. Hollis 98 Mass.
55; Gibbs v. Estey 15 Gray 587; ex p. Ames. 1 Fed. Cas. No. 323, 1 Lowell
561; Fenlason v. Rackloff 50 Me. 362. But see Fuller v. Tabor 39 Me. 519.

3. Smith v. Price 39 Ill. 29.

4. Horne v. Smith 105 N. C. 323, 18 Am. St. Rep. 903.

5. Curtis v. Riddle 7 Allen (Mass.) 185; 1 Wm. Saunders 277; Amos & Ferard Fix-_
tures, 253; Ewell’s Fixtures, 343; Tyler’s Fixtures, 730; Bronson, Fixtures, 266.

6. Johnston v. Phila. Mort. Etc. Co. 129 Ala. 515, 30 So. 15, 87 Am. St. Rep. 75.

7. Badger v. Batavia Paper Mfg. Co. 70 Ill. 302; Straw v. Straw 70 Vt. 240, 39 Atl.
1095.

8. ef. Burrill v. Wilcox Lumber Co. 65 Mich. 571.

9. Green v. Phillips 26 Grat. (Va.) 752 (Machinery in wood working factory).
Krueger v. Pierce 37 Wisc. 269 (Lumber, Etc. piled on land for repair. purposes.)
cf. Homestead Land Co. v. Becker 96 Wis. 210, and Studley v. Ann Arbor
Sav. Bank 112 Mich. 181, 70 N. W. 426.

10. Poole’s case 1 Salk. 368.

Noe

CHAPTER XVIII

THE POLICY OF THE NATIONAL GOVERNMENT
IN REGARD TO THE FREE USE OF TIMBER
TAKEN FROM PUBLIC LANDS

§174. Use of Timber by Settlers and Temporary
Occupants. The terms of the various donation and pre-
emption acts and of the homestead act of May 20, 1862,
(12 Stat. L., 392) and its amendments, clearly indicated a
purpose on the part of the Government to encourage settle-
ment of the public lands. Many of these lands were heavily
timbered and it was impossible to cultivate any part of them
until the timber was removed. Furthermore, the home-
stead act required a residence of five years upon the land
before a patent would be issued. Although the act of March
2, 1831 (4 Stat. L., 472), and that of March 3, 1859 (11 Stat.
L., 408), imposed penalties for the cutting of timber of any
kind from the public lands of the United States, and although
it was well settled that the title to the lands remained in the
United States until patents were issued, the executive offi-
cers of the Government and the courts took the position that
the provisions of the preemption and homestead acts modi-
fied the application of the penal statutes against trespass and
adopted the rule that bona fide settlers might lawfully cut
such timber from their claims as they needed for firewood
or for the agricultural development of the lands entered in
the way of building, fencing, ete.* _

When it was once conceded that bona fide settlers on un-
surveyed lands and homesteaders might lawfully cut timber
' from their claims for the purpose of clearing the land for
agricultural use, it became logically necessary to hold that
timber thus cut in good faith might be sold, or otherwise
disposed of, rather than destroyed or allowed to waste. ?

_ 1. U.8.v. Nelson, 5 Sawy, 68, 27 Fed. Cas. No. 15,864.

2. Shiver v, U. S., 159 U. S. 491, 16 S. Ct. 54, 40 L. Ed. 231; U. S. v. Taylor, 35 Fed.

484; U. S. v. Murphy, 32 Fed. 376; U. S. v. Williams, 18 Fed. 475, 9 Sawy.
374; The Timber Cases, 11 Fed.*81, 3 McCrary 519.

268

USE BY SETTLERS AND OTHERS... 269

Saha

However, this privilege of selling timber thus cut was; held
to be incidental to the clearing of the land for bona. fide, agri-
cultural purposes, and the courts have declared. that it. must
not be used as a cloak to cover a cutting conducted. pri-
marily with a view to the derivation of a, profit , from the
sale of the timber, under penalty of civil prosecution . under
the common law or criminal prosecution under section. 2461
or 5388 of the Revised Statutes or the acts which, qupersede
these sections. !

Exemption from prosecution was also allowed Ni those
who used timber within reasonable limitations upon mining

elaims acquired under the act of July 26, 1866 (14 Stat.,
L. 251), which, like the homestead acts, clearly contem-
plated Governmental encouragement to those who should
engage in the development of the mineral resources of the
nation. .

Although those charged sath the administration of the
public land laws overlooked and even approved the use of
timber from agricultural or mining claims, or even con-
doned the use of reasonable quantities from adjacent lands
for bona fide domestic purposes, and the courts openly rec-
ognized and sanctioned such use in trespass prosecutions

1. Stone v. U. S. 167 U. S., 178, 17 S. Ct. 778, 42 L. Ed. 127 (affm’g 64 Fed. 667,
12° O..C. A. 451); Shiver v. U.S., 159 U. S. 491, 16 S. Ct. 54, 40 L. Ed. 231;
U. S. v. Cook, 19 Wall (86 U. S.) 591; U. S. v. Briggs, 9 How. 351, 13. L. Ed.
170; U. S. v. Ellis, 122 Fed. 1016; U. S. v. Blendauer, 122 Fed. 703 (Revs’d
on other grounds in 128 Fed. 910,.63 C. C. A. 636); Potter v. U. S..122 Fed.
49, 58 C. C. A. 231; Teller v. U. S, 117 Fed. 577, 54 C. C. A. 349; Teller v.
U. S. 113 Fed. 273; Cunningham et al. v. Metropolitan Lbr. Co., 110 Fed.
332, 49 C. C. A. 72; Grubbs v. U. §., 105 Fed. 314, 44 C. C. A. 513; Conway
v. U. 8. 95 Fed. 615, 37 C. C. A. 200; U. S. v. Niemeyer, 94 Fed. 147; U. 9. v.
Perkins, 44 Fed. 670; U. S. v. Norris, 41 Fed. 424; U. S. v.: Taylor, 35 Fed.
484; U. S. v. Murphy, 32 Fed. 376; U. 8. v. Freyburg, 32 Fed. 195; U. 8. v.
Ball, 31 Fed. 667, 12 Sawy. 514; U. S. v. Lane 19 Fed. 910; U. S. v. Williams,
18 Fed. 475, 9 Sawy. 374; U.S. v. Yoder, 18 Fed. 372, 5 McCrary 615; U.S.
v. Stores, 14 Fed. 824, 4 Woods, 641; U. S. v. Smith, 11 Fed. 487; 8. Sawy.
107; The Timber Cases, 11 Fed. 81, 3 McCrary 519; U.S. v. Mills, 9 Fed.'684;
U. S. v. Nelson, 5 Sawy. 68, 27 Fed. Cas. No. 15, 864; U. S. v. McEntee, 26
Fed. Cas. No. 15673; King-Ryder Lbr. Co. v. Scott, 73 Ark. 329, 84 S. W. 487,
70 L. R. A. 873; Stevens v. Perrier,*12 Kan. 297; Orrell v. Bay Mfg. Co. 83
Miss. 800, 36 So. 561, 70 L. R. A. 881; Anderson vy. Wilder, 83 Miss. 600, 35
So. 875; 4 Opin. Atty. Gen. 405, July 16,1845; Winninghoff v. Ryan, 40 L. D.
342; Finley V. Ness, 38 L. D. 394; Davis v. Gibson, 38 L. D. 265; Patten v.
Quackenbush, 35 L. D. 561; E. S. Gosney case, 29 L. D. 593, 30 L. D. 44;
Isadore Cohn case 20 L. D. 238. See also Reports G. L. O. 1889,. p: 291,
1887, p. 479; 1 L. D. 596 (Timber on accretions.)

And compare Jones v. Donahoo, Morr. (Iowa) 493; Hughell v. Wilson, Morr
(Iowa) 383; Bower v. Highbee, 9 Mo. 259; Nickelson v. Cameron Lbr.. Co.
39 Wash. 569, 81 Pac. 1059; Arment v. Hensal, 5 Wash. 152, 31 Pac. 464;
U. S. v. Helena, 26 Fed. Cas. No. 15342, (Revers’g 26 Fed. Cas. No. 15,341);
The Cherokee, 5 Fed. Cas. No. 2,639, 12 N. Y. Leg. Obs. 33.

270 TIMBER TAKEN FROM PUBLIC LANDS

which came before them, ! there was no positive legislative
authority for the practice. Section two of the trespass act
of March 1, 1817 (3 Stat. L., 347), may be considered to have
approved in a negative manner the use of the less valuable
timber on public lands without liability to prosecution, in
that the penalty imposed by it as to public lands not re-
served for naval purposes was specifically made applicable
only to live oak and red cedar cut for exportation from the
place of cutting. .

An act of April 30, 1878 (20 Stat. L, 46), making an ap-
propriation for the payment of the expenses connected with
the employment of timber agents by: the General Land
Office for the work of protecting the public lands from tim-
ber trespass, forbade the use of any portion of the special
appropriation therein made in the collection of fines or dam-
ages for timber cut by settlers for their own actual use from
unsurveyed and unoffered lands in any of the territories of
the United States. Although free use was not expressly
granted, it is apparent from this act that Congress recog-
nized the need of an available timber supply to meet the
requirements of settlers within the territories. However,
the same act authorized the seizure of any timber cut from
the public lands which should be exported out of the ter-
ritory within which it was cut. :

The act of June 3, 1878, Chapter 151, (20 Stat. L., 89),
known as the ““Timber and Stone Act,” by a proviso in sec-
tion four contained an unmistakable legislative recognition
as to certain states and territories of the well established
governmental policy of permitting miners and agriculturists
to take from the public lands, free of charge, such timber
as they needed for domestic purposes; ? and another act,
passed the same day, (Chapter 150, 20 Stat. L.,88), express-
ly granted to bona fide residents of the states and territories
therein named the right to free use of timber, growing on
mineral lands, for all domestic purposes, provided such tim-
ber were not exported from the states and territories in
which it grew. The act of August 4, 1892, (27 Stat. L.,
348) extended Chapter 151, June 3, 1878, to all public-land
states.

. U. 8. v. Smith, 11 Fed. 487, 8 Sawy. 100.
G. L. O. Circular Nov. 30, 1908 (37 L. D. 289).

USE BY SETTLERS AND OTHERS 271

On March 3, 1891 (26 Stat. L. 1093), Congress again an-
nounced the policy of the Federal Government to be that of
granting the free use of timber, under regulations to be pre-
scribed by the Secretary of the Interior, from all non-
mineral lands within certain states and districts in which
mining operations were common. This act declared that
in any civil action or criminal prosecution by the United
States for timber cut from public lands within the States
and territories of Colorado, Montana, Idaho, North Da-
kota, South Dakota and Wyoming, in Alaska or within the
gold or silver regions of Nevada and Utah, it should be a
defense for the defendant to show that the timber cut and
removed from the public timber lands was taken by a resi-
dent of one of the said states or territories for agricultural,
mining, manufacturing or domestic purposes, under regula-
tions prescribed by the Secretary of the Interior, ! and that
it had not been transported out of the state or territory in
which it was cut. The act authorized the Secretary of the
Interior to designate the tracts from which timber might
be taken and made it unlawful to remové timber from such
lands except in accordance with the regulations prescribed
by him. It was specifically provided that the act did not
repeal the act of June 3, 1878 (20 Stat. L., 88) providing for
the cutting of timber on mineral lands, and that it was not
to be construed as enlarging the rights of any railroad to the
free use of timber.

An act of February 13, 1893 (27 Stat. L., 444), extended
the provisions of the act of March 3, 1891 (26 Stat. L., 1093)
to the territories of New Mexico and Arizona, and one of
March 3, 1901 (31 Stat. L., 1486) made the same law aplic-
able to the States of California, Oregon and Washington.
The provisions of this act, so far as Alaska was concerned,
were superseded by section 11 of an act of May 14, 1898
(30 Stat. L., 409). Exceptions to the rule against exporta-
tation from the state or territory in which the timber was
cut were made by acts of July 1, 1898 (30 Stat. L., 618) ?
and March 3, 1901 (31 Stat. L., 1439). °

1. See Circular G. L. O. Feb. 10, 1900 (29 L. D. 572).

See Circular G. L. O. Mar. 22, 1901 (30 L. D. 542).

See Circular G. L. O. Mar. 25, 1913 (42 L. D. 22). No. 223,
2. Circular G. L. O. July 23, 1898 (27 L. D. 276).
3. Circular G. L. O. Mar. 20, 1901 (30 L. D. 540).

272 TIMBER TAKEN FROM PUBLIC LANDS

It is to be noted that the act of March 3, 1891 (26 Stat.
L., 1093), and the acts amendatory thereof, applied only to
non-mineral public lands, while the act of June 3, 1878
(20 Stat. L. 88) applied only to mineral lands.1 The act
of March 3, 1891, did not authorize the sale of timber from
the public lands, but only the granting of free use under such
regulations as the Secretary of the Interior should pre-
scribe.?. The Secretary was given no authority under
either law to require permits for the cutting of timber on
actual agricultural or mining claims but only on public.
lands to which no private claim had attached. The re-
moval of timber from a claim for unlawful purposes subjected
the offender to punishment under the penal statute, but his
right of use was absolute so long as he cut only for lawful
purposes. * é

An act of August 10, 1912, (37 Stat. L., 269, 287) made
special provisions for farmers and settlers by authorizing the
sale of mature and dead and down timber from national
forests to them at actual cost, and the act of March 4, 1913,
(37 Stat. L., 1015) authorized the sale of fire-killed or injured
timber from homesteads prior to final proof under the super-
vision of the Secretary of the Interior.

§175. The Cutting of Timber on Mineral Lands.
An act of June 3, 1878 (20 Stat. L., 88), authorized all bona
fide residents of the states of Colorado and Nevada, and of
the territories of New Mexico, Arizona, Utah, Wyoming,
Dakota, Idaho and Montana, as well as those of ‘“‘all other
mineral districts of the United States,’’ to fell and remove
from public lands mineral in character and subject to min-
eral entry only, [Act May 12, 1872 (17 Stat. L., 91)] timber

and trees ‘for building, agricultural mining or other do- |

mestic purposes,” subject to such regulations as the Secre- _
tary of the Interior might prescribe for the protection of the
timber and undergrowth or for other purposes. A proviso

1. Circular G. L. O. Jan. 18, 1900, (29 L. D. 571). .
Circular G. L. O. Mar. 16, 1909 (37 L. D. 492).
Circular G. L. O. Mar. 25, 1913 (42 L. D. 30) No. 222.
2. Circular G. L. O. Mar. 17, 1898 (26 L. D. 399).
Decision of Secretary of the Interior (29 L. D. 322):
3. But see Lewis et al. v. Garlock (168 Fed. Rep. 153), holding that because of a
paramount title the United States may sell insect infested timber on a mining
claim for the protection of other timber even without the consent of the claimant.

TIMBER UPON MINERAL LANDS Bia

excepted railroad corporations from its benefits, and the
third section declared that a violation of the provisions of
the act, or of any regulations prescribed by the Secretary
of the Interior in pursuance thereof, would be deemed a
misdemeanor punishable by a fine not exceeding $500, to
which penalty might be added imprisonment for not over
six months. It was held that the rules and regulations
which were promulgated by the Department of the Interior
under authority of this act had the full force of law, and vio-
lations of the same subjected the offender to the penalties
prescribed in the act. ! However, these regulations must
conform to the intent and purposes of the act authorizing
them, and they will not be enforced in such manner as to
either enlarge or restrict the use which was contemplated by
Congress. > One who attempts to justify the cutting of
timber from public lands under authority of this act must
show a reasonable compliance with all requirements of the
regulations, * but a failure to comply with details, through
inadvertance or misunderstanding, will not make him lable
to exemplary damages as a wilful trespasser. *

Federal courts have held that the Secretary of the In-
terior had no authority under the act to prohibit the cutting
of timber from public mineral lands anywhere within a
state or territory for purposes of sale either as firewood in
households, mines, smelters, or as manufactured lumber,
provided the timber was not cut for exportation from the

state or territory. ° However, there has never been a de-

239, 48 C. C. A. 331; U. S. v. Reder, 69 Fed. 965; U. S. v. Lynde, 47 Fed. 297;
U.S. v. Williams et al., 6 Mont. 379. See G. L. O. Circulars Jan. 18, 1900, 29
isn Dinorl; Ware 16; 1909; '37 I. D492; Mar: 25; 1913.42 LB. D. 30;
. U.8.v. United Verde Copper Co., 8 Ariz. 186, 71 Pac. 954 (Aff’d in 196 U.S. 207,
25 8. Ct. 222, 49 L. Ed. 449); U. S. v. Rossi, 133 Fed. 380, 66 C. C, A. 442.
Mullan Fuel Co., 118 Fed. 663; U. S. v. Copper Queen Consol. Min. Co. (Ariz.
1900) 60 Pac. 885; U. S. v. Murphy, 32 Fed. 376;
so U.S. v..Gumm<:9 N; M. 611; 58 Pac..398; U: 8. v: Edgar, 140 Fed. 655; US. ‘v.
Basic Oo:, 121 Ked..504,.57:G:.. CG. A. 624: U..S. v. Gentry, 119 Ped. ‘70, 55.C.-C.A.
658; U.S. v. Mullan Fuel Co., 118 Fed. 663; Stubbs v. U. 8S. 111 Fed. 366, 104
Fed. 988, 44 C. C..A. 292; U.S. v. Price Trading Co., 109 Fed. 239, 48 C. C. A.
331; U.S. v. Reder 69 Fed. 965.

ao rowers y-U< Ss; 119 Med: 562) 56:C. °C. AL 128; See U. S.-v. Rossi, 133. Wed. -380;
66 C. C. A. 442 (Timber cut for lawful purpose, afterwards used for different
purpose.)

. U.8. v. Edgar, 140 Fed. 655; U. S. v. Thayer, 133 Fed. 1022; U. S. v. Rossi, 133
Fed: 380;,66-C.C, A. .442;-U. S. vy: Basic Co.;. 121. Fed. 504,57 ©, C: A. 624;
U.S. v2 Price: Trading Co:,. 109: Fed’. 239, 48 GC. C. A, 3312 U. 8..v. Lynde; 47
Fed. 297; U. S. v. Richmond Min. Co., 40 Fed. 415; U. S. v. Edwards, 38
Fed. 812 U.S. v. Saucier, 5 N. M. 569, 25 Pac. 791.

we

or

274 TIMBER TAKEN FROM PUBLIC LANDS

cision by the Supreme Court directly sustaining this view,
and the Department of the Interior still insists upon its
right and duty to determine from what areas timber is to be
cut when the amount to be taken in any consecutive twelve
months exceeds $50 in stumpage value, and requires that
the timber be cut by the user or by his agent.! The right
to cut under this act is a special license, and the burden is
upon the one cutting to show the mineral character of the
land. The cutting of timber from mineral lands for sale
to a railroad company for purposes other than those of con-
struction, authorized under the act of March 3, 1875 (18
Stat. L. 482), was held a violation of the act of June 3, 1878
(20 Stat. L. 88); * and the removal of timber from a mining
claim and its disposal to the benefit of the claimant some time
in advance of the actual beginning of mining operations was
held to constitute an unnecessary and therefore unlawful
removal of timber.* However, the Department of the
Interior has held that a locator of a mining claim has a
sufficient interest in the same to enable him to maintain a
suit to prevent trespass thereon. _

In construing the two acts of June 3, 1878, one (20 Stat.
L., 88) granting the free use of timber in certain portions
of the public lands for special purposes, and the other, (20
Stat. L., 89) providing for the sale of timber lands and for
other purposes, the Department of the Interior held that
the former related to all mineral lands of the United States
but not to lands of non-mineral character and did not
authorize the cutting of timber for sale or ecommerce, and
that the latter, as amended by the act of August 4, 1892
(27 Stat. L., 348) related to all non-mineral lands of the
United States in all public-land states, and prohibited the
cutting of timber on nee such lands except as provided in
the act. ®

The act of June 3, 1878, Chapter 150, (20 Stat. L., 88),

1. Circular G. L. O. March 25, 1913, No. 222,42 L. D.30. See U.S. v. Plowman, 216
U. 8S. 372.

2. Northern Pacific R. R. Co., v. Lewis (162 U. 8S. 366.); Lynch v. U. S. 138 Fed.
535, 71 C. C. A. 59.

U.S. v. Eureka & P. R. Co., Cir. Ct. Nev. (40 Fed. 419).

U. 8S. v. Nelson, Dist. Ct. Ore. (5 Sawyer 68)

Lewis Smith, et al. 1 L. D. 615. U.S. v. Rizzinelli, Cir Ct. Ida. (182 Fed. 675).
(Nat’l For.).

6. 24 L. D. 167; 29 L. D. 349.

SCR

TIMBER UPON MINERAL LANDS 2h

authorizing the use of timber from any mineral lands for
building, agricultural, mining, or other domestic purposes
within certain named states and territories and in all other
mineral districts, was held not to apply to Oregon in which
there was no ‘‘mineral district’’ established either by law or
common reputation; ! and it was held in another case that
the cutting of timber from mineral lands within the state
of California was governed by the provisions of the act of
June 3, 1878, Chapter 151, (20 Stat. L., 89), which specifi-
cally mentioned California, and not by the act of the same
date, Chapter 150, granting a special license for the cutting
of timber from mineral lands but not specifically naming
California. 2. The decision in United States v. Smith, that
the act authorizing the removal of timber from mineral
lands for domestic purposes in general was not applicable
to Oregon, was followed in a decision rendered in 1901
which held that the use of timber from the public lands at a
quartz mill in that state was a viloation of the said act and
was not permissible under the proviso in section 4 of the
“Timber and Stone Act’? of June 3, 1878, Chapter 151,
(20 Stat. L., 89) which declared that nothing therein con-
tained should prevent any miner or agriculturist from clear-
ing his land in the ordinary working of this mineral claim,
improving his farm for tillage, or taking the timber neces-
sary to support his improvements. * In reaching this con-
clusion the court took notice of the fact that in interpreting
the “Timber and Stone Act”’ (Chap. 151, June 3, 1878) the
Department of the Interior had instructed its officers and
agents that where timber for mining or agricultural purposes
could not be obtained on the land entered it might be taken
from other public land near by.* The courts at first
adopted the view that Chapter 150, June 3, 1878, author-
ized the cutting of timber for domestic uses from lands other
than those actually entered or actually shown to be mineral
provided they were within a well defined mineral district ;5
but later decisions declared that the defendant in a prose-

1. U. S. v. Smith, Cir. Ct. Oregon (11 Fed. 487), 8 Sawy. 100.
2. U.S. v. Benjamin, Cir. Ct. Oregon (21 Fed. 285.)

3. U.S. v. English et al., Cir. Ct. Oregon (107 Fed. 867) Aff’d in 116 Fed. 625, 54
ORME OY Roast

4. See also U. S. v. Smith, Cir. Ct. Oregon (11 Fed. 487).

5. U. S. v. Richmond Mining Co., Cir. Ct. Nev. 1889 (40 Fed. 413): U. S. v. Ed-

wards, Dist. Ct. Colo. 1889, (38 Fed. 812).

276 TIMBER TAKEN FROM PUBLIC LANDS

cution under this act must prove that the land from which’
the timber was cut was actually mineral land and not sub-
ject to entry as non-mineral land; ! and it is now well settled
that under this act timber cannot be cut from lands lying
in a recognized mineral district, or adjacent to mineral lands,

but not actually themselves valuable for minerals. 2 It was

also held that the act of August 4, 1892, (27 Stat. L., 348)
extending the ‘‘Timber and Stone Act’’ to all public land
states, did not repeal by implication the privileges granted
in special states, territories and mineral districts by the
act of June 3, 1878, (Chapter 150, 20 Stat. L., 88).% The
Department -of the Interior held that both of the acts
of June 3, 1878, authorized the cutting of timber by the own-
er of a sawmill or by other persons provided the timber was

intended for the bona fide use of a miner or agriculturist for —

the purposes contemplated by the acts and that timber cut
from actual claims in order that they might be developed
could be sold or exchanged for lumber needed for improve-
ments. However, the person selling lumber must take a
certificate from the purchaser as to the purpose for which
he intends to use it, as required by the regulations of the
Interior Department. * The cutting of timber for smelting
or roasting ores is authorized by Chapter 150 of 1878,
supra. °

The act of March 3, 1891 (26 Stat. L. 1093) which au-
. thorized the cutting of timber on public lands for agricul-
tural, mining and other domestic purposes, as amended by
the acts of February 13, 1893 (27 Stat. L., 444) and March
3, 1901 (31 Stat. L., 1436), has been construed by the In-
terior Department, which is charged with the duty of regu-
lating such use, as contemplating the use of timber cut from

non-mineral lands for the same purposes as those permis-

sible under the act of June 3, 1878 (20 Stat. L., 88), allowing
cutting on mineral lands only.* -

1, U.S. v. Price Trading Co. et al., C. C. A. 8th Cir. (109 Fed. 239), 48 C. C. A. 331.

2. U. 8S. v. Plowman, 216 U. S. 372. See Chrisman vy. Miller, 197 U. 8S. 313; U. 8.
v. Silver Min. Co., 128 U. S. 673; Anderson V.U.S., 152 Fed. 87, 81 C.G.A.-311+
U. S. v. Copper Queen Min. Co., 7 Ariz. 80, 60 Pac. 885; Brophy et al. v. O’Hara,
34 L. D. 596; Walker v. So. Pac. R.R. Co., 24 L. D. 172; Etting et al. v. Potter,
17 L. D. 424.

3. U.S. v. Price Trading Co. et al., C. C. A. (109 Fed. 239).

4. U.S. v. Reder (69 Fed. 965).

.5. U. 8. v. United Verde Copper Co. 196 U. S. 207, 25 S. Ct. 222, 49 L. Ed. 449;

(Aff'mg 8 Ariz. 186; 71 Pac. 954.)

. 34 L.

6 D. 78.

—— — —

USE BY TELEGRAPH AND RAILROAD COMPANIES 277

$176. The Free Use of Timber by Telegraph and
Railroad Companies. An act of July 24, 1866 (14 Stat.
L., 221), U. S. Revised Statutes, Sec. 5264, granting a
right of way over public lands to telegraph companies duly
incorporated under the laws of any state or territory also
eranted the use of so much timber from those lands as
should be needed for construct!on purposes. It has been
held by the Interior Department that the use of timber for
the construction of telephone lines was not authorized by
this act. }

A similar grant of timber on lands adjacent to their line
of track was made to railroads under an Act of March 3,
1875 (18 Stat. L., 482), giving duly incorporated railroads
the right of way over public lands. The use of timber under
this act and of various other special land grants to railroads
was confined to original construction purposes ? except in
the case of the grant of June 8, 1872 (17 Stat. L., 339) to
the Denver and Rio Grande Railroad, wherein use for re-
pairs was also granted. But timber adjacent to the main
line could be used in the original construction of branch
lines subsequent to the completion of the said main line. '

It has been held that the privilege of taking timber‘ ad-
jacent to line of said road,’’ as granted in the act of March 3,
1875 (18 Stat. L., 482), could not be construed to authorize
the taking of timber by the railroad from lands situated
fifty miles distant from the right of way, even though there
be no available timber at a nearer point on the public
lands. * On the other hand a court has held that a grant of
similar character to the Northern Pacific Railroad under
section two of an act of July 2, 1864 (13 Stat. L. 365) author-
ized the cutting of timber from lands not directly contigu-
ous to the right of way, and that timber taken from lands ad-
jacent (the term being used in a sense of nearness) to the
line of the road might be used for construction purposes

1, 29 L. D. 1, July 1, 1899. Right of way over public lands, not reserved for public,
uses, was granted by act of July 26, 1866 (14 Stat. L, 253.)

2: Denver etek: Co: vy. UL'S7.34 Peds 838 (Af'din 150 U.S; 1, 14S. Ct. 11, 37 L.
Ed. 975.)

3, U. Six: Price: Trading’ Co.,. 109: Red: 239, 48 G...C. A.-331.

47 Stone v; U:S:, 16% U.S. 178, 17 S)-Ct. 778; 42 lL. Bd: 127 (Aff'me 64 Fed. 667,.12
C.2@. A A512)

278 TIMBER TAKEN FROM PUBLIC LANDS

upon any part of the road; ! and a liberal construction of the
words ‘‘adjacent to the line of said road’’ in the general act
of March 3, 1875, has usually been given,” one decision ~
holding a distance of three miles from the place of cutting to
the line of the railroad to be within the meaning of the term
“‘adjacent’’ as used in the statute, *and another holding that
the cutting of timber twenty-five miles away from the track
was not necessarily wrongful as a matter of law.‘ How-
ever, the word, “adjacent’’ will not be ignored, nor will its
meaning be unreasonably expanded.’ The determination
of the meaning of the term in a particular case has been held
to be a matter for both the court and the jury. ® The eir-
cumstances in a particular case might justify a construction —
of the word which would not be permissible under a
different set of conditions,’ and the Supreme Court has
rejected the suggestion that ‘‘adjacent’’ should be limited
to the distance that the timber could reasonably be trans-
ported by wagons, * or to the area to be directly benefited
by the proximity of the completed railroad. ® The license
granted by the acts in favor of railroad construction has
been held to include the use of timber for the erection of
station houses and other appurtenances of a railroad. 1
Under the act of 1875 a railroad company could not be held
in trespass for timber cut on lands adjacent to the line be- »
tween the filing of articles of incorporation and proof of
organization with the Secretary of the Interior and the ap-
proval of the same by him, ™ but could be held for any cut

1. U. S. v. Lynde, 47 Fed. 297: U.S. v. Denver etc. R. Co., 150 U. S., 1, 14 S. Ct.
11, 37 L. Ed. 975; U. S. v. St. Anthony R. Co., 192 U. S., 524, 24 8. Ct. 333.
48 L. Ed. 548; U. S. v. Price Trading Co., 109 Fed. 239, 48 C. C. A., 331.

U.S. v. Denver etc. R. Co., 150 U.S., 1, 14 8. Ct., 11, 37 L. Ed., 975 (Aff’mg 34
Fed. 838); U. S. v. Price Trading Co., 109 Fed. 239, 48 C. C. A., 331; U.S. v.

to

Denver etc. R. Co., 31 Fed. 886.
3. U. 8. v. Denver etc. R. Co., 11 N.M., 145, 66 Pac. 550,
4. Batcheldor vy. U. S., 83 Fed, 986, 28 Cc. C. A., 246 (Rev‘g 9 N,M.15, 48 Pac, 310.)
5. U.S. v. St. Anthony R. Co. 192 U. S., 524, 24 S. Ct. 333,48 L. Ed. 548 (Rev’g
114 Fed. 722, 52 C. C. A., 354.)
6. Batcheldor v. U. S., 83 Fed. 986, 28 C. C. A. 246 (Rev‘g 9 N- M. 15, 48 Pac. 310,)
7. U. 8. v. St. Anthony R. Co., 192 U.S., 524, 24, Ct. 333, 48 L. Ed: 548" (Rev’g.
114 Fed. 722, 52 C. C. A., 354.)
8. U. S. v, Denver etc, R. Co., 31 Fed. 886;-approved in Batcheldor v. U. S., 83
Fed. 986.
9. U.S. v. Chaplin, 31 Fed. 980, 12 Sawy. 605.
10. U. 8. v. St. Anthony R.Co., 192 U.S., 524 v. Denver etc, R. Co. 150 U.S. 1; v. 8s,
v. Price Trading Co., 109 Fed. 239; U. S. v. Chaplin, 31 Fed. 890, 12
_Sawy. 605- .
11. Kootenai Valley R. R. Co. (28 L. D. 489).

USE FOR IRRIGATION PURPOSES 279

before such filing.! It was held that until the adjacent
portions of its road were constructed, the Northern Pacific
Railroad did not have such an interest in the odd sections
granted it under the act of July 2, 1864 (13 Stat. L., 365)
as to authorize it to license others to cut timber therefrom. ”
However, another decision declared that the same railroad
had a sufficient equitable interest in the unidentified odd
sections of unsurveyed public land within the area covered
by the primary grant to the railroad to maintain a suit
against a trespasser upon such unsurveyed land, the United
States having refused to joinin a suit.* The grant to rail-
roads under the act of 1875 operated to transfer to a rail-
road company such timber as it should rightfully take ir-
respective of any regulations by the Department of the In-
terior, and an agent of the railroad engaged in cutting such
timber was not guilty of trespass,‘ nor did such agent ac-
quire any interest in the timber cut. ° |
An act of February 8, 1905 (33 Stat. L., 706) authorized
the use of timber from public lands and from the national
forests in the construction of irrigation works under the
reclamation act of June 17, 1902 (32 Stat. L. 388.)

1. U.S. v. Eccles, et al., Cir. Ct. Dist. Utah, (111 Fed. Rep. 490).

2. U. 8. v. Ordway et al., Cir. Ct. Dist. Oreg. (30 Fed. Rep. 30); U. 8S. v. Montana
Lumber & Mfg. Co., (196 U. S. 573), (1904).

3. Northern Pacific R. R. Co., v. Hussey, C. C. A. (61 Fed. Rep. 231) Cf. U. S. v.
Childers, 12 Fed. 586, (8 Sawyer 171). U.S. v. Eureka R. R. Co., C. C. Nev.
(40 Fed. 419); U. S. v. Loughrey, 172 U. S. 206; Great Northern R. R. Co.
(14 L. D. 566); Construction of term ‘‘adjacent’’ (1 L. D. 610); Report G. L. O.
1889, p. 291.

4, U. 8. v. Chaplin, 31 Fed. 890, 12 Sawy. 605.

5. Falke v. Fassett, 4 Colo. App. 171, 34 Pac. 1005

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INDEX

Pages
Actions in timber Wlespass CASES: 5205 se Ee ae ae ee abe gre 78
EER Er Ore ee Oe ey 69
Agent, principal liable for act of............. 102, 163, 178, 194
hp a eee PS AE NE eBay LS 15
poauel rings of growth.............. Ne: a ee 158 .
Es ME ova Ais cla alae WRI e ip wlgiemrelevta deo wle a 15
TN Noses Perky. ofereia boaidiare ov o'e'e8 a: Gok, ME, Bs SI he 15
ES ELA 225 ode. a.e goatee. do tiv'a 01S. 4-0 id ate oars oe a hiphk 16
“‘ included in specified diameter... .. Sk doederel vies esas ‘esr f BSS
IIE coo 2 Ed AS ok lai vies eee aloha ns pes eran beh ee Sgt 165
NE PR ON RI NS eho eala Ula, See we Sahin sree ee 8 15
ER oy shen) cogs dca al Rin.ivapes ajyoe wg’ easel e de apa ete 15
PEED 18.05 -2.2 ses eh. csetane a “S-8% dhe Sean oa anilierns aeeneaas 200
rc cs Ais gop Gr ven dah god reecleh aC RTD Cai a 16, 17
ET CS Gad AL'S Piss Sidon iat dcndhe Gad o2d nb Bae eA 25, 216, 224
Booming RMNTUROO DS OO ag dog Go ees eal Minis dee EAR Eo e'6) OU 223
rc COMSCHION GE TOUS, 9-5.) 5 Gy ja isa one-s.g 0% 226
:y rg RIEU OE tier Stanton oh, siren Sec HAS 6 229
Boundary Pr ccetriee ohh Sines Fis Polk's campos a 5 248, 251
a F SURLAUOL Y-TERINGTION OL, 6s! oy ois eae. tien ey does 251
MEINE COTRER ACE 5s ose nc des wot eee bap ee 159, 193
Burden of proof in trespass cases.................0005 103, 216
Burning of the woods, civil damages......... aT ee igo 109
Ord BROCTALORCHEE.. 4 26 oye anced lack 127
wei She RHKGE: OUNIR hele sid ices hen Se he sinn 118
aon " yepectal ratiroad, lAWS.0.400s'.0+ + ~TIR; 120
California decision as to injunction...................... 62
TR BUPES, 5 0a, 6. aig ciate cbs cata bderncws es ceted Cateye iS 203
ESN x ned 4. sche ucevae bo svesd® Waly bck tv ae XS p16, 322
IRs 02S. S258 IS. doc creda os dntie! v.08 Baha «kG ER 17
“a Reaver y- Ot, DY TENIO VIN 6.86 oho nicie gos wpe sinnintaw yee 80
Chattels real . ie Tas é 7 “PI BD oes Ads. aad ba OMNES 4
EEN OT te. asa LI fe, sigh oo! al Boss's. v Nh ecw pldtw Ded 6 15
Clearing land, not usually waste in America........ 41, 43, . 46
MUN MRNRNNES POE TORO I foe 2s or 7 bee a Cs bin s vs esnrg HR EMGRES 219
CE a a Cetins attales. 28
Common RICE ae e NPR ass ed io, a arexi7 hin ME 190, 192
“log driving companies BOC: a os irre tera aeltgs 229
Compensation for injuries to employees............... 178, 182
i for the driving of logs of another............ 221
Connecticut rule as to the statute of frauds............... 142

I

II INDEX

Constructive delivery RL Eee eee eee © eckcave does Cee 185

Constructive DONMORMIONR. oc icc ci ncaa bi 82
POVETONCE ss 5s oe ce ee eS oven so 22, 134

Contracts, essentials of)... 6 ccs seas hae ee 129
- woid or. avoidable... .. ......6..5+0++ «nee 130
COUNMOREIA ck he ein ca een eet 81, 83
"9 of floating logs... 2.0. 64550 5..0s004 0s 205, 236
CGOPATCOMBTY |... 5 bese cake cues eae oe we oe 9
CRRA WIE 5 ice 6 eso oki a ede ee 80, 196, 205

Gonrporeal things... . .. 6056 ccc cess eo b oeh aie
Cotenants, waste by... oo... cisco ees sila’ nae eee 42, 56
. tFESPASS DY. oi csc seie ce es ba 10 79
Court, cutting timber: by order of.............. /)s sce 48
Criminal intent necessary for conviction.................. 116
‘““ statutes construed strictly Soe se 6.6 5 0 ote en oh Cn

CUIUS EST SOLUM, etc..::...:.2.0.. 5.43 455 Se 4
ea Bec eee ae anes ee 24.03 ee 188, 208
CHAT COBY 5. ow nk cc ole uc oe wie 0 3 vis’on 'b fiptescibig nov ata tee II
Custom important............. 16, note 2, 40, 44, 160, 168,. 200
Cutting timber as‘a civil offense... .......5... +05 oe eee 96
“ “ " etiminal offense .:....7.. 5. +\sls 113

Damages, competisatory .....3...2.5609705505 205 ee 88, 99
e for failure to‘drive logs. . 2:5. .:.:..5..-:3036 0a 219, 229

is “« - take timber sold... .*. ., :5'3, (eee 159

. e “.** cut timber as agreed: . 3/0, Sia 163

“ injury to batik of stream’. -.; ..<./+..2. eae 214, 231

a *" timber trespassi.c 06.0000. 22 74.) om

a waste... 056553555. ke ee 54

co . “ by cotenant. .... 0.50." 90 2. ae 56

ii Interest POE y's io%e, shee a's 0 4.90 9's 8 ee 105, 260

* measure of, in timber contracts................. 163

. " ““ in timbef trespass: ........... 73, 75, 84
sy - "TN WASTE. oo. 6. toe 5 onc 2 0 54°

. oes “ gnder'a mortgage . =. seiko 244

- Sedgwick and Sutherland views.............. note 87

re speculative. .os 356005 i500 esate yee en 77

3 to street trees. akc eee eo os sss Seg ger ere 257
Dead timber... . . ojos fewaseoes vies soe ee eee 19
DE BONIS ASPORTATIS.............. 69, 72, 78, 244, 266
Deed of trees: . sos sigienv Jiu pea ela 134, 140
Delivery of timber products.......-... +... +ee ee eeeeee ee
. in instalments 5 eee so vey ee 188

ro fe me a? to a common carrier........... -. 190
Descent of property. 2/0). F650 ese ian os oe de 5
Description of timber sold... 2... 05... .5 006005005 22 eee 156
Divisible contracts .5 5545. ..%. 6.55 53s a ot 162, 189
Domestic use of timber from Federal lands............ 123, 271
Dotatds : 55060 ca Se A a A ee 35
Drege Tle: 6. ee nce tees Oe Coe 199
DWE 65) oh EA ee ee To es ak to 10
DROW 2Ul® «60 fe ERS eee eee 200

INDEX III

Beem an eitier 1OSISIATION. 05. kas. cae di eae ds eawe: 96, 196
ary HY & Fae ee sv Se SRA ne is
SUNSIPINOMINITOGR NOT. yo oc ok Loe 60a bbe Poe ee ee 21
I SSE ES 1h Nv a 178
English rule as to SNA, 292 oe ae a 136
MRE ee MPMI ANT TERIOS fic. seg d 2 Ges ew ad I4I
a SCE Et ge Cae as a C0 5 gg a ea eee 67
POE VCISION . Ge on cack bb tire Sioa Ge Ea Sheen Os 2
o DS A IE el Cnr eer ae ee tre 28
etovers allowed 4 tenant... 2... ies cee needs Par cliaas oAh 32
EES SOS en nn a Ae ce a aE 36
mvimence AUMISSIDIG . « .... 6.65 eee ven cana es 205, 207, 238
EE Ey CIAINAU OR one is nic Sa hob ea ROP. e Os 675. “Od
Pee tIOt HOON timber. 6. sce s ee ae ewe oe if, note3 2
Expiration of time allowed for removal................... 149
Federal lands, timber trespass upon................... 106, 122
> statutes as to timber PRSS ee ee ee eg {22
- eat or, DMTVANY SARIS oe econ Gist 124
“i “regarding the burning of public lands......... 127
) snle as to atreparable injury to.timber.........%.: 61, 65
IS I Ge cs aw Arie epee Wins be ewe een k abe 8
eee 6 als visa som pe eran dis ata ania Ae 18
er Me et toot 82 83 1 95 RP ea wwe eA Pee 15
Firing the woods, GAME OUTS o's a, shes aire! wd cess ues Mg Sia eias Sa ahd 120
Me ECP AT ON ENSE 66 i area eee ned Oe 12
ie si BA SCE OU CIS sche G98 c ad ae SA ale a8 118
eae: 4 RARE AROMAS s AAs cee that uiiand ae. eres uot a itis, 2G
aa ‘ CAIRN GES ly bs oN Gk eee ees kes 109
Fixtures, dependent upon relationship of parties............ 264
Pee RY OUANCCS UG: 6 goo ise pci es RE SEAS 263
- sawmill veka 19% 10 ca 0 Oa Sana Reet ee ae ee ea ee 265
ie Coe eM aI IGE i eines Rn dR ee an I ae 136, 261
F loating BO AO ee, ns ecg fault ek end see Se Be Ka SR 210
DOME RUNG Voce 0) oe ae ne ale Re ee eee ee ee Be 218
is INN OC RIOR Oakes kn, patos HbA Ewa ea ee RR 236
i ay sien TOterrerence With... 65 kb She chee e wks 238
POrda, Wolding as tO injunction... ...0.50.. 0050000 s ecw e ees 62
PR ICTITITION OL. 5 op ocr we veck ew edd a eigelsw neue ee ged ewe 14
Forfeiture EE Nt hea So ie hap tars lee Bihan aN te wheraehs ghshatels 56
a EUS ag ive. | er te ee a ee 186
PROC TUS INDUSTRIALES, trées as....50. 56 060055 ocean 262
PRUCTUS NATURALES, trees as... 0. ccc peed he nes 1 20) 262
Breehees. dainaece 10f INUTY. ©... 66 isk he bona oe ee eae 74
A ee Sek ie ge Na) ee RRS pb ws 18
SeOb gia, NOMS 2S :10 IMjUNCION : ..¢ 6465 vd eee een decked 62
Rees CE Chat OF 6 on oh oa. nb oe Do be es ps A ea ee
Mee Ca ona TS Or EIOIS ME cicod ck Goch oak kOe 6 Re a ce 184
RE tT ANCES he a SOS nel acs hae Ae Pace Red who ae
IGLOS ABNER De eo RG BP Od ce ale arc re 259

LEU EO SSESS CET | Ga A te Re rae

IV INDEX

Highway. trées ..s0t: : Bs 5 3522 6 APE 253
EGOPG 255i ee a oes ete ses hee 40, 197
PROPRIA 5a 55 en sos MB oie onan ws ols oa oes Sn en 16
Humphrey rule... ..F.... en... 1 ee 200
Husbandry, ‘test OF wage : «3's. 65 ER 453222200 47, 246
Identification of timber cut in trespass................... 81
ra * trempeold. . oc sis tess 8 eee ec 135, 158
Immature trees, damages for cutting of........ 74, -77, 85, 86
‘* * waste in cutting Of... 0... «+ <5 ane erin

Immovablea. ... BF. .... 6s 6..5008 Jee eee a no ee 4. oe
se trOCTES.. oo cc cea pas as 2 0b) ob eee en ae
Inicorporeal thisgs..:... 2... 00 oveesisi eg 5s coe pee 2
Indiana rule as to statute of frauds........... vis he ae sete eS
Injunction against planting of trees... ...... \. .Ul Uy see 250
cutting by vendor or r purchaser + + cose. ave signa a ee 63

. WWE TAGOT =... op ta ck ave cee as 0 3240p eee

. available to the United States. ..........5./205 65

ae for prevention of waste in general.............. 57

- Téfiusal of ©. 5 isc SHA os paige aces ese 64

- regarding timber cutting.-..... 7... --+s222 seen 60
Injuries to:employeés.. «20 sides. ek cee es eee ia his ele 178
“land by log driving ...:.3.. 0... 30, .3.. 5. 214
Innocent purchaser of timber innocently cut..........:.. ioe
- of timber wilfully cut.............. ea

Insolvency of one cutting timber....................... 63, 243
Inspection of timber products.../..../.........s0. see 196
Inspectors, qualifications Of. 0.5.5 oly .0 sas bt 205
Inisurance of lumber.) <4 Joab. oo. ee as se cr al
Interest upon damages: 02205 a os eee ee errs:
Invalid sale, effect of .........,....... ress cee + «eee 83
irreparable imjury . 2.5) Foye nec 2 Pan 25a 58, 60, 61
Irrigation, use of timber from public lands for............. 279
Joint tenancy . . .. 6. ise Janene OREO es Ja ss 9 lee 9
Juries, instruction t6. 5 75224. Poke oo ss a 2 208
Kansas rule as to multiple damages ............... Pe, 3° 105
Kentucky rule as to statute of frauds......2...........-.-. 143
Larceny of logs... .2..3..462 33 idee ean > eer 239
. of trees. .< / 6. Spo s cate A, ot Bicae dasamsa eta as ae 21

TAP CE ooo os 6 isis cs oe we de ea ne en Petr
Lathe . oc cee ccc ed pte hel bs ORAM oes Pita oa 18
Leanee of trees... loci ed acces neee eke 40 608 se 137
LEX REI SITAR 2. 26.0355 6. 00. nes fas benign le 9 bs 6
Liability of log driving and booming companies. ........... 229
Lacesse to cut trees... 5525. TOVSO UE 73, 138, 145, 147, 245, 247
Lien, for ddvances. ::. 3 .....56. 4.10 2 Soa ee ee 170
“ oar 9) |= —. PE ro eS te 168

ee © APREERREORY 1. 5.85 eteti te Ta la sha to" 3 hole te 9 ae hee 170

“e “ce

INDEX

Lien, StatMOry PETGONE.CNUCICD CO.” et ee ces
eee et REEL ph oo: sone, b 9080 Ss 4,0 4.000'0's ooo Tee
TNR Re ge a ae Sack dag 4 fc, 0/ 4 4 in inyoin, we atoiele’s
OS SG i aa 26, 33;
Lime tree; basswood................. i A ee ete Be

Ral ran ic aon Fa Ka ele Gye giv ba bee eo ee eek
Wee MEE VERIO., ook sue to ve aes oe Ne 210,

Been ivenie COMPANIes. 2 i ce eee eee ee
NEE G01 Shy achat GaN sacs wins VE NSex Siete oo bo oes
emer SEIS SICL FOTITOACS 5 yok. ore ed gs tb ses oe es 138,
Logs and stumps in highway.........................0.
II fF on rouge hs sia es pabiie Spo A HHT hoe + ae
Louisiana decision as to liability for goods purchased......
ty WRIXRECY OF MUNDOTT » Sy 3Fee, ee
ee yk densa HRA 4.0, ae ake hiaeiels 231,

Maine, construction of word ‘“‘timber’’..................16,
“ decision as to severed trees................ 6.) Ci.
Beane low Water ark. oc cs os sa nhac s owb one
7 er MENCCn Or SEANIOS .-... 52s 01: weakens <i
NE se es os and 5, 2b mca RA RH He oe
EN TSEC es. ai ces eee ede eae se eee
MN SSR TOTS TECOTCCS |. 5 oc 5 5.5 c eon o +o eietp epic aabarie bees
Memeeeruree, stattite Of... 6... ee ee eee 28; 51, 52;
Maryland decision Bato siies Of growth: 6s acs es a 5s
pee Waste DY tenant: ry Sha eis. es

pipe os 10 atatune of irads.. . 652.23. 24 bess ees we

“ce

ae

“ce e ce

statute of frauds coi vies set
Measure of damages for 1 0: REN Dis go> ea ee a
~~ “highest allowed .......... Roaeee

’ under a mortgage..........
Measurements of timber ate eR oP a
fe CONCMISIVE LE ae osc ores © =:

% ‘ ” OMiClal es. vice es ob
IEEE WPARCG 4928.8 lis 3 Wie Flee a ees ee ene ae
Merchantable timber, definition of................... 135;
ET le Go hs gc Rens cis pels Yep ON te 16,
Michigan decision BS fo Geliveryt est: Seah A eos oe Ve

“'“ trees upon boundary. /......5.2..
interpreting contract as to scaling.......
regarding trespass damages.............
1 IESE LS ba Ip PRL oe Seal he 208,
ENS Ser eens ba dy ty dik oS. ek oa eee

oe ce

ce ee

Petiser; CHMMIOVNeNt Ol... e.3 2c Ri cb date ees cde:
Ela CEM COON CRON... 62 eee. aa eel ik... 130,
Mississippi decision as to substitution of grades...........
Missouri SOO 1 Aton st PRR RIOR SS ais Le es
Mortgage, effect of on timber......,............ pak ate:

VI INDEX

Mortgagee’ S-interest Iu tM DER os sis 5d. o's oe ee 242
remedy after foreclosure. ....-...00..-sasaeue 245

“s use of timber restricted................+.+--. 246
Mortgagor’s rights‘ in timber.) .... : 2500... a2 i ee 246
Multiple damages for timber trespass.97, IOI, 102, 103, 104, 250
requirements in action for.......... 100, 103

de ' TOP WASE.. o.oo aces fe ee 54

* E restricted as to cotenants.............. 56

. 34 for cutting boundary trees............. 250
Nails, ‘driven in logs: .. 225. 55%. Sa. 2 a ie 240
NAVEEBUUTOS . oa Pc Les. be kbs oe ck pes Oe Unie eenn 204
Navigable streams ...). 6.6455. caste ict tebe eee 210
Nevada, decision as to delivery of charcoal................. 186
New England, waste in. <... 0... 2520... 6. 4s a eee 48
New Hampshire rule as to statute of frauds............... 145
New J ersey decision as to cutting of boundary tree........ 252
“ “ irreparable injury ........:- 2.7 ene 61

: * rule as to ‘statute’of frauds... ....- 5.2.0 uae 145
New York decision as to cutting of highway tree.......... 255
2 “« “ damages for timber cutting....... 74

v “ a *¢' ** delivery of lumber... .. ....1s0enue 187

os ‘“* rule as to statute of frauds interest in land....... 145

ms me OS eee sale of goods) 0. cme 183
Nominal damages for timber trespass. ............. 66, 74, 108
North Carolina definition of “‘woods’’..............-.+++-- 15
Nuisance, tree as. .). ic See eece ssp selce sss ene el 249
Nursery appliances as fixtures... ...........eecceseeccees 263
“<> “@rees as fixtures; Sis: ccs osn 0's 4sub enna eee 264
OTE o.. v5.5 Scthsoece 4.2 Ae Te hs LIT ot nlc ree 15, 40, 259
Obstruction of navigation by. booms. ..).5....0.>.. ae 225
“‘ roads by logs, stumaps,,.ete. . .... <5 /oase 256

Oregon decision as to waste by tenant.................... 53
Parol evidence... os iehcas eee eee ee aa ee 149, 168, 183
““ sale of reservation of standing trees................-. 141
Partial performance vc acguili hiatal eee Sa: as, 4 we Ee 162
Partnership in logyitig: . 20. «5, <<c»isc-> eh ives Shc ee 161
Payment before cutting. ........-.. 002+ -+se seer eee setae 64
* title shall pass......16).)505 «seers > ee eee 189
Pennsylvania decision as to collection of tolls............. 226
“ “ cutting of highway tree....... 255

sf in misrepresentation case..........--+++-+++- 133

t rule as to statute of frauds ...............+++-- 143
Petmigkive waste. ; o.oo .6< ccs. sale eared 1 cic OR 28, 51
Fersonal actions. ..... ...: 24502208 ae Gree tees = 2
Pereonal property . . ....2<%. 15 .s<ts nh ese an I, 3) 5» 21, 35» 71, 134
PeeeeRCEINS OF 1TEES .... oo 5 na 5 iv a. 0,0 oe oak 6 se ee 250, 260
Police powers as to trees in streets... ..... 2+ essen eeeee (256
Policy of United States.as to use of timber.......-..-+++++- 268
Possession required for trespass action. ......--+++++eree0s Li

Principal and agent... ........ 0. 4s++4 0251102) 163, 178)

MRR TREO ht PN ia. POLITE es ga tive hed WORE 232
Pulpwood........: eee Pe Giga 8) Sid casita a ROSS «LAR 18
Public lands, timber trespass upon.................-..-4. 106
Public service corporations, injury to trees by...........+.. 256
IS SA es Ones Ge te 208
QUANTUM MERUIT, recovery by.......... 44.162, 219, 220

QUARE CLAUSUM FREGIT, action of..................
68, 69, 73, 78, 79, 85, 244, 266

NEG LEG ois oy foo cies ovidiale ddosasaqaysualeuetaree ov ee cus 13
QUICQUID PLANTATUR SOLO, SOLO CEDIT.......... 261
MEM PUREING SO0SC Of. ..; 000.5. A pwidins iw 'eGtlee wg sae. 240
OG ES: iene aaa re ae OE: ae eree ints shor ae en 169
ET 9S NE bs u. Gwe cau 9 hve wie AEE RR OE ON 138, 177
i eae Page cm ies ear Rr ere PmeMs PAs iL bo aA I
be Sseecovery Of, by replevith.; of 0620. Seles 80
Rails and posts, recovery of, by replevin.................. 80
NEE ee OE Re Rae oe Bea Salers Ae te | ee “s' 16,, 422
MESS APPL 5 line DIN ineteel wakes ay Mo Tee eb 2
Mee TOPCLtY... so ee Matas wis NE Sau s, Re aR
NES UST ES | ee a 237
Mecemption of timberland. ............5....0000. Pick ok go 23
RENNIE SETTUINCUIOH 560. on. ek a sek ew eee Re es 64
NE NAEP e CE LOR. ewe a Ds irae a UA ees 19
Regulation Or Ge MENT S A ol el Re PS A ORT Ses 220
‘“* “and lumber measurement................ 196
Remedies ROW GUE ZENER SL ou hiss Raine MO 6 bvvele 50
rk en PE CLEEOE 65, <.0. 209 GOR EKG eee RESET 52
Repairs, OSCE. a le RI Se og Ses a a a6, a7. o9e
Replanting of trees killed by fire........... ..... 74, note 5
MPC PITMLIET 25 Sahn Wop ees dw wd ap some svateles 24, 79, 244
Reversion of timber not removed from land................ 153
mameeiat Owners, rights of... 0... ak ee ea ee eels 21930231
EST LECSE Ts | aR a gegen 138, 177
Saint Anthony Railroad timber decision................. 90
ENS TANDEL 2, 86 bein. don weg 2d bo eS Rey Cee ee 131
- NS AE aa coe a OCA are OL cat Ae ater 130
“ SIE DE ORUCTS = 5,02 rears s UR TSE OI 183
Salvage Pe PALS nee NARI LaTe eae Ay ae eR 232
aye I ee 19
Sawing of lumber.......... EEE Ee ET Le TOR TT 167
aie Sg ye 0 tA APA eo ane eee 168
EIS Ch ESELIES, Foc oi og ce oe ani ehad owiie AER SSE 265
or in SSG i Ja i ae se ee Seer e PAS Tee gee 174
OV RERIN wig. ond Hekate hear aiann. Yee cna al bine Hd RU A Hes 18
CAPE ON OOUOE Se iis sin rie sob ce wea FRE gE AOE Ooo os 206
POCO a Teahes eee eee obo. wiles iaewiel ha IM DOmbye 198
SCR UIE OVACETCE BS TO ie ee ie Son ob ou ory as ime 4.0 BESS 206
CEA UPEROME MRED oro hg cai CN cot eat cis % $y 5 OE PER OQ Oooo 200
Sedgwick, text book on damages.................. Note on 87

UCC LOLBs USE OF CIMIDED CY iid gad yi sds ba pels waleies sSicn es 268

Vill INDEX

Severed trees as-personalty :..... 2.5.0... es See 21,

; 71

Severed trees, Sale Of 5.5:.05.60205 065 ans) cada 145
Shavings... 6c ss Sey vas SoS ee 19
Shingles as lumber................ Pe ir 18, 19
4 cutting of not waste. ..°...000.....2....4.:7 00 eee 41

as iidneckion Ol. ie. s A oe ee 197, 204

% recovery of, by replevin: . 5.55. .3......73 Spe eee 80
SHOGKS oo o05 C ee OT eee ee wee ca 197
Sidewalk, trees obstruct )):.25.50..5. 4.0. +) 3 256
SUG Hs a Sock acing Gh ecto sh ce gaa er 18
Spaulding rule... 05.0.5 n.d seiiven, 1a bt ae 200
Specific performance .. 2... 63 0 fee ost age» le 165
“- fecovery of timber... ...6944.00.) 20 ee 81
Speculative damages............5.......0. 4: 77
Standard of measurement................ on igiee ee 198, ‘199
Standing timber, sale:of..).0...0...)03 0a ee 131
State land, timber trespass upon’. 2.)...00 2... .0- 79052, vee 106
Statute of frauds (goods and chattels). .3.0: 02.0.8 9 183
“ G@nterest ‘ni Jand) oe sa ee 139, I41, 145

Statutory liability for timber trespass.................. 96, 100
= regulation of booming... 2.05005... 2.292 eee 223, 225

st a “ log driving. ........4 yin See 220
Staves... <3. 074: Ve, Pee ee 40, 80, 197, 204
“ cutting of not waste <./..00..54.)2. 2. Hp 40

“* Gnspectionr Of. ::5..) Aaa euccule sis ine > aucbaaek Eee 197, 204

“« “recovery. of, by replevin. -2. 22... 2.76 2 2 ee 80
Stealing of logs: ...... 2oy eR Rie 29) Ulu), PEs ee 239
A. re Ee 21

Stoppage, right of on railroad... . 32.9050. 8. 2 4 ae ee IgI
Of logs im drives fii. cde As. ace pte a's oe hee 228

Stranded logs. .....ojiaciaseioe tee ee Ca eee 231, 232, 236
Streams, use :of.) . 0.9 ee a 210
Stream improvement companies....................... 228
Street trees. 05. 266s SQ i. 5 253
Stumipage......:..4. «ves wine en ys eo Se 18, 83, 90
Sugar bush... . . : 04.0% sh ee eee ds Says bee 74
Sugar-making. . ...... sis eelesebill: tei eee 41, 70
Supplies, title to. 25.005 5 sa manna nke 50 rou eee 163
Survival of contract..c.< (i. c4 Shs bass won kee 166
. Sutherland, text book on damages................ Note on 87
SHCRENOTE ......... Aa igk See ee isin ence 2 15
Tapping of trees (maple and pine)........................ 41
Taxation. of timber )..!5 5.245 sk ee oe 235 35
Telegraph and telephone companies.............. 253; 256; 297
Tenancy, different forms: of... 5529.55 25352 -. eeee OMe
Tenant, liability of,.as to waste... 2.2/0... +0, «as be ee ee 26
. right to estavers >... 0... Sos as wae eee eee 32, 36
Wem OR 2 S55 a ok Ses Rn ee eee 2, ae
Tennessee decision as to parol evidence.................. 183
* eile as. to statute of-frauds 20) >. Gb eee ekee 144

INDEX

Timber, definition of (by courts)....14, 16, 17, 18, (by law)
Timber, MpRNene CAD ears Cody os bees «okie a sg ns

Pee ey Aen CleT ON COUET oo eg saa. evs bk ee oe Re

af CSE CROCS TL aE oe a

is Pabea sr OF Ip atiOn MU POSES 5 66s ek ge Ses

- PPro einer el FARIS less Pees ee ee ena

~ ee eG ete F728 ale & Sh gs 8 ys, sey ln x

‘ > yaiuroad aiid telegraph companies......-...
MeNIBII SPQ BCU. 6 yo bk ck cn oda ew mews ee bed eis 123,
OS DEON ESE) ae
a products PEON a a ik eee es Sees
a DLORSUTONIGHE. Of i505 2646-2) os nadsaes x 196,

. si PLT ey SOROS an ie Lae e ee SSS

. iy Br gn RTA IGE ERAN Sas hos vce es
RN Pe IIOEL Gh ey ce cod ead och Ge he we BO Hees KLE

cig) ell oak 2 5 ae a ne ee Re a ae ee
Meee ror Tenover Of trees)... os ei ewe eck eg es ebees 146,
Paste co dimer prodicts, transier Of... s...4.65 686065045005
= severed trees left on ground COND Re Pie Re ee oe 152,

standing trees
Tolls for driving and booming

Trees me Met al IPOROILY «2 .. 6.6 doi ia Sele cles oe oe ae a @
ee TEs hate aap < 5'¥is,0e28 6 o4 eals son sels 4 20, 136,
Punt VEY BOVELEUL sis 76 be ir oes eds saa es 22;
sh le ee ont feat go Sod) 9. septa ids tim diahide LG wk 8 25\5

left after expiration of time for removal

pom TO VaDIes-DY SLALUtG sc 4G cde Seas ala ee ais
ea re See US TOUTES nd ons oe 4 Bae EN ae ha Se ea
PeemcU ee Naralely ALOM JANG. oes oka Ga se ake aw ees
OPES 0 AST os nae Te cs 22)
RR INI IRAR She 64 Fe ie eos Wis a WS ech OP SESE AER RL
E subject CCOEL Ab Ob reu chs woop 3 a) 50101 eg ae gE a ae em rae
4 cs Pree RECON en eit Eee Mas Gas ees
i: . ey Soa Tres Oe eel Se a en en ce oe eee
‘““ trespass upon by public service corporations...........
ME CU VOUMCALY TING oi keh ol eiee be eeew sabes sheet
ae “eo

street or highway
Trespass PR AA Fe ates acid syed whe leased bane hy Mines FOOLS
action by lessor

MPM CMGSSOO 2 Vat c.o6 16 ee 'dlSib2 anita Wes Sew Ren
a Peay CTIGIS S25 6 age «cto BS, HAL Pall elle dle
: dreringwisued iron Waste . 2c save aes pa ees
= Bee ENN eo ghee Ka wees hese Rd 100;. 115;
i EN 8 9 aM eal
2 ene teasUre OL -CAMARES 66655 pec cane ae ea
a WOE OI MATRON AOL fa ioc eo vb hn hb le 102;
_ pantie Ol aIMaAves LON si. Ses esi ewes
- Pescessiom necessary to-action Of +... ic yo bo Sa ens 2
a Dee ee ts OM ns es Fx. 0.2 6 bas 2 FSIS BOS Boks
3 pom mederal Inds. a sce ext ai wseratadew nee wes 106,
i TEOLCSSE Sco) | S12 OS PR le ee a a ee ee
* upon severed timber as personalty.. ........00.55 a4,
7 SRT See AUIS ooo yo... 2s Gon. bo ced Ban HS 106,

IX

ES
15

x F INDEX
Trespasser acquires no right to timber cut................. 73
"PEOVOR s SOUON OF fos. ee mere etek seb OAL AOR 78
PRE DORUING. 566 S cccwha het. Ve Oh eG ROR eer
Umer WOOKS ie. 5 3 hak rade CFTR d's Saw f 9 18, 35
Virginia decision as to boundary tree..................... 252
WORE shes weet ccs TH at A ae 133, 134, 184
Waste as affected by terms of demise..................-00¢ ‘41
¢ avoidance of ability for... 02.566 605'. otk Oa oe ‘ae
* RBy Joint tenants: ....65000.90 5.0 2 Sree ae +. “@
" “tenants at: WH... 3595 6.4% oss Pes oe eee 27
St I COMMMRON Tel 2 a 3 2a ee 29) “42
F ‘ surviving husband........ a ota'e e's 69 pe eS 27
a a WHE io: 3075-55 rae 4), 5%e hace eos 6am 27
Bs COMIMISSIVE 5 55. 85 5 FS ned ae Pew ee 28
re custom controls 4.2.6). 5. WINS Vee ea te ee 40
damages recoverable fori; 3. ..0.-0 52. 0...) Wa ee 54
ak definition Of .).'445)2 005. We tN Sh 6's G54 oe Coe 26
¢ = * “by eoarts 22. 00S 39
fe distinguished from trespass ..............£7\tilees oon 31
ne doct¥ine OF 5 oi siecawehitaenes + ss. eee ee 26
¥: early laws regarding. .. 3: 22520%1.4 0... TA 50
eqitita ble y<.: 666.1 siai oie hk eee We le ie aes ae 28
. essential elements of Thi a! SOR een Pur 31, 46, 47
‘ mehoraring 0c Geleeie cmos 43:4 duck oh ee 31
a multiple damages and forfeiture for................. 54
. in America.) A445 Lene Oc ee eae 34
i in Hngiande: icc teeth be tiaas stole Loe 33
ee in- cutting youtig trees: opis 2 ee eee oe ‘yo eae + id ee
as liberal doctrine of in America.................-+++- 43
= PECIMISHIVE. Oo 5cF aetna eee ico. Us See eee 51
= prevention of, by injunction...... eS Pe a eee 57, 65
1 remedies for AUY ne 0 ON eee 50
- “not applicable to tenant at will............ 54
FY rights of lessor and lessee as to action for............ 53
sy special: conditions ‘a9 to ‘action. .........:,....52s0s00nee 53
é Voluntary ios sisters oo ihe teens ora kg 53
Westminster, statute: of: 265662055 Hides eos fe ae 30, 50
Wilful trespass... ..<\< 00 vote vas ce ee. 2 ee 80, 93
Wilful trespasser, purchaser of). 00... ee 93
Wisconsin rule as to timber trespass..................--- go
Witness tree, injury to. 0.6) iyo. 3s es bas ss ss i oe eee 251
Wood,,. definition of 0... 5°02298e. 2 eee 14
Woodenware trespass decision...... Ces ooo). ates 2 89
Wood-leave, defined by court ............... cece cesceees 19
Woods, definition of 2.250 00072. ee eee 14, 18
Murnimaniike manner. : 2.25.65 00555 ok: ee ee *..160, 168
Went of estrepement. ..:. 22.5. 6066208. fo So tee ee 50
eK: RUIMAE MIGNON 5 5. 5 Shon o vorve aw es ssa Lisle Wie aha boohgl biel acs 50
PE OSE osc ee ere ata dia one ne 50
Wyoming decision as to lessor’s action for waste........... 53

OO

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Kinney, Jay P.
The essentials of
American timber law lst ed.

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