Hill v. Cutting

107 Mass. 596

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1871
• Status: Published

Opinion

Gray, J.

The intention of the parties to the deeds of May 5, 1865, that all the wood then standing on the eight acres, which were part of the land in which John released his title to Philemon, should continue to belong to John, is sufficiently evident. The only difficulty in carrying out that intention arises out of the attempt to express it by way of exception or reservation in the deed from John to Philemon, instead of doing so by way of grant in the deed from Philemon to John. A reservation or exception can only be out of the estate granted, and this clause therefore could not operate by way of reservation or exception upon the undivided half of the eight acres which had never been in the grantor, but which was before the division and afterwards remained in the grantee. As to the other undivided half, there would seem to be no good reason why the clause should not be allowed to operate strictly as a reservation or exception. But, however that may be, it had at least the effect of a paroi transfer of the wood then standing on the premises, as personal property, and a license to enter and cut the same, which was good until revoked, which was assignable without deed, and which, after it had been acted upon, and the trees cut down, by the licensee or his assignee, could not be countermanded. Claflin v. Carpenter, 4 Met. 580. Nettleton v. Sikes, 8 Met. 34. Nelson v. Nelson, 6 Gray, 385. Driscoll v. Marshall, 15 Gray, 62. Giles v. Simonds, Ib. 441. Drake v. Wells, 11 Allen, 141.

. Judgment for the defendant.