The opinion of the court was delivered by
Bell, J.
As already said, in the action of replevin between the same parties, in which the opinion- of this court has just been given, we think the construction, by the court below, of the clausés of reservation in the several deeds read on the trial, is correct, for the reasons given in the charge, and those adduced in the opinion referred to.
On the trial of the replevin, both Abraham and Stephen Mitchell testified as witnesses, and, under oath, disclaimed any right to the trees which matured as sawing and rafting timber, subsequently to the conveyance to Moses Thomas, in June 1838. Each conceded the existence of the executed parol agreement of 1828, set up by the plaintiff, concurring that the deed of 1846 was intended to' carry that agreement into effect, and, therefore, acknowledged the property of the trees which attained their growth as timber, technically speaking, after the year 1838, to be in Isaac, the plaintiff. Under this proof, Mr. President Elured instructed the jury that, in a contest with a stranger to the deed of 1846, and who can claim only timber which had perfected in 1838, the plaintiff might fairly assert a title to those trees which, by natural growth, became fit for the saw or raft between the two given dates. Any dispute on this point must, necessarily, be between the three brothers; and where both Abraham and Stephen repudiate any supposed right, it is not perceived how a third person, deriving no interest under the deed of 1846, can set it up as conclusive against the grantee. The rule which merges prior negotiations and agreements in an after-executed conveyance, was established for the protection of the parties to it, or others affected by it.' But when these refuse to take shelter behind the rule, and freely acknowledge an earlier arrangement as that intended to be made effective, there would seem to be no reason why the rule should be insisted on.
[379] In the case immediately before us, however, Stephen Mitchell was alone examined, and although he speaks of the deed of 1846 as given in pursuance of the prior verbal agreement, yet, as -the other grantor was not introduced, the case was left to proceed upon the several conveyances, unaffected by prior arrangements. Under this state of facts, the defendant contended that, as he had a right to enter upon the plaintiff’s land under the grant of 1838, he could not be converted into a trespasser ab initio by merely felling trees to which he had no right, and, consequently, trespass would not lie at the suit of the owner of the soil, having no interest in the trees taken. But the court instructed the jury that, though the defendant might justify an entry on the plaintiff’s land to take timber to which he was entitled, he could not enter to fell trees to which he had no claim; and, though the property in the timber improperly taken was in Abraham and Stephen Mitchell, the plaintiff, as owner of the land, might, in this form of action, protect the timber against all but the true owners. From the generality of this instruction, the jury must have been led to the conclusion that, though the defendant’s right of entry to take timber belonging to him is undoubted, yet if he felled a tree not his own, he became liable to answer as a trespasser. To this proposition, thus broadly put, we cannot assent. Indeed, in a country where the sale of growing timber, as a distinct thing, is very common, and essential to general improvement, the operation of such a doctrine would be highly inconvenient, if not intolerable.
The grant of timber proper for rafting and sawing conferred on the grantee and his assigns, not only the right to enter upon the land for the purpose of cutting and removing suitable timber, but, also, to select and judge of its suitableness. A license to do an act, necessarily implies every privilege essential to the enjoyment of the principal thing, and in 1 Saund. 322 a, our very case is put in illustration of this principle. “If,” says the book, “there be in a grant an exception of the trees, the lessor has a power incidental to it, to enter, fell, and take away the trees.” The right of,entry being ascertained, we are at once brought in view of the principle that a mere abuse of this privilege does not involve the commission of a trespass. The distinction established by the Six Carpenters’ case, 8 Coke 290; 1 Smith’s Lead. Cases 62, and ever since recognised, is between an authority conferred by law, and one granted by an individual. An excess in the exercise of the former converts the tort feasor into a trespasser, but an abuse of the' latter works no such effect. Undoubtedly, one injured by the latter misfeasance, has a remedy for the vindication of his violated right, but that remedy is not by action of trespass quare clausum fregit, which is grounded upon a tortious breach. Nor, in a case like the present, can any but one having an interest, general or qualified, in the thing converted, maintain trespass for its asportation. It [380] follows from this, that whether this be regarded as an action for breach of the plaintiff’s close, under the first count of the narr., or, under the second, simply for removing and converting the prostrated timber, it is equally unsustainable.
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The opinion of the court was delivered by
Bell, J.
As already said, in the action of replevin between the same parties, in which the opinion- of this court has just been given, we think the construction, by the court below, of the clausés of reservation in the several deeds read on the trial, is correct, for the reasons given in the charge, and those adduced in the opinion referred to.
On the trial of the replevin, both Abraham and Stephen Mitchell testified as witnesses, and, under oath, disclaimed any right to the trees which matured as sawing and rafting timber, subsequently to the conveyance to Moses Thomas, in June 1838. Each conceded the existence of the executed parol agreement of 1828, set up by the plaintiff, concurring that the deed of 1846 was intended to' carry that agreement into effect, and, therefore, acknowledged the property of the trees which attained their growth as timber, technically speaking, after the year 1838, to be in Isaac, the plaintiff. Under this proof, Mr. President Elured instructed the jury that, in a contest with a stranger to the deed of 1846, and who can claim only timber which had perfected in 1838, the plaintiff might fairly assert a title to those trees which, by natural growth, became fit for the saw or raft between the two given dates. Any dispute on this point must, necessarily, be between the three brothers; and where both Abraham and Stephen repudiate any supposed right, it is not perceived how a third person, deriving no interest under the deed of 1846, can set it up as conclusive against the grantee. The rule which merges prior negotiations and agreements in an after-executed conveyance, was established for the protection of the parties to it, or others affected by it.' But when these refuse to take shelter behind the rule, and freely acknowledge an earlier arrangement as that intended to be made effective, there would seem to be no reason why the rule should be insisted on.
[379] In the case immediately before us, however, Stephen Mitchell was alone examined, and although he speaks of the deed of 1846 as given in pursuance of the prior verbal agreement, yet, as -the other grantor was not introduced, the case was left to proceed upon the several conveyances, unaffected by prior arrangements. Under this state of facts, the defendant contended that, as he had a right to enter upon the plaintiff’s land under the grant of 1838, he could not be converted into a trespasser ab initio by merely felling trees to which he had no right, and, consequently, trespass would not lie at the suit of the owner of the soil, having no interest in the trees taken. But the court instructed the jury that, though the defendant might justify an entry on the plaintiff’s land to take timber to which he was entitled, he could not enter to fell trees to which he had no claim; and, though the property in the timber improperly taken was in Abraham and Stephen Mitchell, the plaintiff, as owner of the land, might, in this form of action, protect the timber against all but the true owners. From the generality of this instruction, the jury must have been led to the conclusion that, though the defendant’s right of entry to take timber belonging to him is undoubted, yet if he felled a tree not his own, he became liable to answer as a trespasser. To this proposition, thus broadly put, we cannot assent. Indeed, in a country where the sale of growing timber, as a distinct thing, is very common, and essential to general improvement, the operation of such a doctrine would be highly inconvenient, if not intolerable.
The grant of timber proper for rafting and sawing conferred on the grantee and his assigns, not only the right to enter upon the land for the purpose of cutting and removing suitable timber, but, also, to select and judge of its suitableness. A license to do an act, necessarily implies every privilege essential to the enjoyment of the principal thing, and in 1 Saund. 322 a, our very case is put in illustration of this principle. “If,” says the book, “there be in a grant an exception of the trees, the lessor has a power incidental to it, to enter, fell, and take away the trees.” The right of,entry being ascertained, we are at once brought in view of the principle that a mere abuse of this privilege does not involve the commission of a trespass. The distinction established by the Six Carpenters’ case, 8 Coke 290; 1 Smith’s Lead. Cases 62, and ever since recognised, is between an authority conferred by law, and one granted by an individual. An excess in the exercise of the former converts the tort feasor into a trespasser, but an abuse of the' latter works no such effect. Undoubtedly, one injured by the latter misfeasance, has a remedy for the vindication of his violated right, but that remedy is not by action of trespass quare clausum fregit, which is grounded upon a tortious breach. Nor, in a case like the present, can any but one having an interest, general or qualified, in the thing converted, maintain trespass for its asportation. It [380] follows from this, that whether this be regarded as an action for breach of the plaintiff’s close, under the first count of the narr., or, under the second, simply for removing and converting the prostrated timber, it is equally unsustainable.
If the respective rights of the parties be regarded from another point of view, the result is alike unfavorable to the plaintiff. Thus, it is said that a grant of growing timber, by necessary implication carries also a right in the soil in which the trees are growing; at least, so far as may be necessary for their support and nourishment, Under the term “wood,” used as synonymous with the Latin word “ boscus,” not only the trees, but the soil upon which they are, will pass; and where there was a lease of a manor, “ always excepting the wood and underwood,” it was held that the soil itself was excepted; but where the grant or exception is of timber-trees, no soil passes or is excepted but so much as is necessary for the nutriment of the granted trees: Whistler v. Parslow, Cro. Jac. 487; Leigh v. Heald, 1 Barn. Ald. 62-2. Or, as it was said in another place, the grantee of the trees has “ an interest in the soil for a particular use:” Clapp v. Draper, 4 Mass. 266; he is entitled “ to sufficient nutriment out of the land to sustain the vegetative life of the trees, for without that the excepted trees cannot subsist:” Liford’s case, 11 Rep. 49. To the same effect is Tucker v. Andrews, 1 Maine Rep. 122, where it was held, that by a conveyance reserving all the pine timber of a particular size, the trees remain the property of the grantor, with so much soil as is necessary to support them. From these ascertained principles, it would seem to follow that the owner of growing trees has, technically speaking, an interest in the close where they are situate; for close does not so much mean an enclosure as an interest in the land itself. It was, accordingly, decided in Rolls v. Rock, 2 Sel. N. P. 1287, that w'here trees are absolutely excepted in a lease, the land on which they .grow is, necessarily, excluded also; consequently, if the tenant cut down the trees, the landlord may maintain trespass for breaking and entering his close and cutting down his trees; the landlord’s possession being, in legal contemplation, exclusive. But where this species of implied interest and possession is not exclusive, but of a mixed character, as where the grant or reservation of growing trees is not general, but partial, in common with others, or where, perhaps, it is but for a limited period, determinable on the expiration of that period, trespass will not lie by one of the parties in interest against another. This difference is noticed by the Supreme Court of Massachusetts, in Clapp v. Draper. It was an action quare clausum fregit, brought by the owner of the trees against the owner of the soil. The court say, “ Upon looking over the cases, we are satisfied that the plaintiff, having an inheritance in the trees and an exclusive right of soil in the close, as far as it was necessary for their support and nourishment, may main[381] tain trespass for breaking the close, as well as for cutting the trees. It appears to be a principle of law well settled, that'where a man has a separate interest in the soil for a particular use, although the right of soil is not in him, if he be injured in the enjoyment of his particular use, trespass quare clausum fregit lies, but not if his interest is in common with others.” In the case before us, there is a species of mixed ownership. The plaintiff, under his deed of 1846, claims the ownership of the soil and an interest in some of the growing trees, while the defendant, under the conveyance to Thomas, avers his ownership of, at least, a portion of the timber-trees, and an interest in the soil consequent upon it. We are thus presented with a species of tenancy in common, or, at least, a community of constructive possession, which would seem to forbid the assertion by either of the parties of a breach of his close by the others. Such appears to be the doctrine of the cases upon this and analogous rights and interests.
Of course, what has been said proceeds on the ground that the defendant might, with some show of reason, still assert the existence of timber to which he might be entitled at the time of his entry. If all the timber contemplated by the grant of 1838 had been unquestionably removed before the entry now sued for, by either the defendant or those under whom he claims,—of which there is some appearance of allegation in the paper-book,—and this was known to the defendant, the entry was without authority. The grant was in its very nature determinable ; the right to cut timber was not to continue for ever, at the pleasure of the grantee and his assigns; and if, from the destruction of the trees, the subject of it, or the refusal of the party to exercise his right after a reasonable notice to do so, the right itself is determined, the privilege of entry is gone with it, and the owner of the land may sue for a breach of close, though he may not recover, in damages, the value of trees taken, the property of which is not in him.
In the event already pointed to, of a disclaimer of all property in the trees by Abraham and Stephen, the plaintiff may recover the value of such trees, improperly cut and converted, under the principles already adverted to. But if, at the time, there was a right of entry in the defendant, some other form of action must be adopted to vindicate the property of the plaintiff and to enable him to recover the value.
The doctrine of the court below on the subject of notice is indisputable. If it were not so, the grantee might claim to enter upon the lands on which the trees grow, for an indefinite period of timo, and, by refusing to remove the timber, entirely defeat the culture and improvement of the soil. Such a power is unreasonable, and certainly was not intended to be conferred by the deeds. But it is unnecessary to add further to what has been already said on this subject.
[382] What has been said results in this:—If, under the principles adverted to, the defendant’s right of entry was determined, trespass for breaking the plaintiff’s close may be maintained; and in that form of action, the value of the trees which matured since 1838 may be recovered, provided Abraham and Stephen Mitchell repudiate all ownership of them, conceding them to belong to the plaintiff by virtue of the agreement of 1828; otherwise the measure of damages is the value of the trees cut, if any, which do not belong to Abraham and Stephen.
But, if the defendant’s right of entry be not determined, trespass quare clausum fregit cannot be sustained against him.
Judgment reversed and a venire de novo directed.