Howard v. Lincoln

13 Me. 122

• Court: Supreme Judicial Court of Maine
• Decided: May 15, 1836
• Status: Published

Opinion

After a continuance for advisement the opinion of the Court was prepared by

Weston C. J.

By the reservation in the deed of May, 1825, from the plaintiff to Theophilus Smith, Jr., under which the defendant claims, the trees therein described continued the property of the plaintiff, with the right, while they remained, in so much of the soil, as was necessary to sustain them. Liford’s case, 11 Coke, 46. The plaintiff has therefore a right to maintain this action, unless he has parted with his interest in the trees, cut and carried away by the defendant. By his bill of sale of January, 1824, to Alpheus Spring, with the memorandum thereon, the plaintiff sold to him the trees subsequently reserved. And the right thereby acquired was, through certain mesne assignments, transferred to the defendant. But the bill of sale contains a provision in these words, “ said Alpheus to have the term of three years from the date hereof, to haul said timber.”

In Pease et al. v. Gibson, 6 Greenl. 81, this court has decided, that an instrument of this sort, is a sale only of so much of the timber specified, as the vendee may get off, within the time limited. What remained on the land, after the lease of three years, continued the property of the plaintiff, in virtue of his reservation in his deed to Smith. The timber in question, being cut and taken from the land by the defendant, long after the termination of that period, the plaintiff has a right to maintain trespass against him therefor.

Exceptions overruled.