Mooers v. Wait

3 Wend. 104

• Court: New York Supreme Court
• Decided: August 15, 1829
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

It has been decided by this court, in the case of Suffern v. Townsend, (9 Johns. R. 35,) that an agreement to sell land does not imply a licence to enter and cut trees; and also that a licence to enter, would not authorize the cutting timber; for that one licence does not imply the other. In that case, theré was a parol contract of sale and purchase, under which the defendant entered and cut timber ; but the contract was not consumated, and the plaintiff recovered in trespass for the timber cut while the defendant was in possession. The same point was again decided in Cooper v. Stower, (same vol. 331.) In that case there was a written contract, much like the contract in this case, except that there was no lease of the lot; but the defendants produced a contract, signed by Stower, by which he acknowledged he had received a contract and bond for the consideration money, which were to be execcted and returned to the plaintiff; and agreed that until the papers were executed, no timber should be cut on the lot; and it was shewn that they were executed and returned by the next mail. The defendants contended that a licence to enter was implied, The court considered the acceptance of the contract of Stower a licence to enter and occupy as tenants at will, but not to commit waste; and that cutting the timber beyond what was necessary for the use and improvement of the farm terminated the tenancy at will; and of course the defendants were trespassers. It was there considered that the withholding the deed was the plaintiff’s security upon the land 5 but it would cease to be a security, if the defendants might lawfully strip the land of its timber, and render it of no value

The contract in this case goes farther, and gives the right of occupancy for a term of years, on performing certain conditions. It is undoubtedly true, that Frazer had a right to enter and enjoy the lot which he had contracted to purchase ; but, as was said in Cooper v. Stower, “ the contracts in the case must be construed reasonably and consistently with the rights of both partiesarid as cutting off the pine timber where the land was not suitable for cultivation, was not the proper and reasonable mode of enjoying the lot for agricultural purposes, Frazer had no right to cut the timber. The timber constituted the principal value of the land. The land thus valuable was the plaintiff’s security for the purchase money; and the destruction of the timber was therefore totally unauthorized by the contract. Had it appeared that the lessee could not enjoy the lot to the best advantage for the purposes of cultivation and improvement as a farm without cutting the timber in question, a different case would have been presented; and I should think the rights of the parties would be very different: then the cutting, and perhaps the selling would have been justifiable. But when) trees, or any thing else attached to the freehold, are unlawfully detached therefrom, the property thus wrongfully sepa-1 rated from the freehold, becomes the personal property off ,the owner of the inheritance. “ Waste is a tort,” says Lord Hardwicke, (3 Atk. 262,) “ and punishable as such; and - the party has also a remedy for the trees cut down, by an ac- • tion of trover.” (2 Cruise, 268.) The case of Fanant v. Thompson, (5 Barn. & Ald. 826,) is full to the same point.; Certain machinery attached to a mill was leased for a number of years. The tenant, without permission of his landlord, seveied the machinery from the mill, and in that situation it was sold on an execution against the tenant. It was held that no title passed to the purchaser, and that trover lay for the machinery. The judges, in giving their opinions, compare the machinery, when attached to the freehold, to the case of trees standing which are parcel of the inheritance, to the use of which the tenant has a qualified right during his term, to wit, for shade and fruit. If, however, they are sep-, arated by his own wrongful act, or the act of God, the tenant has no right to the use during his term, but they become absolutely vested in the person who has the next estate of inheritance; they become his goods and chattels.

These cases abundantly shew what is constant to good sense and sound policy, as well as justice: that a tenant who commits waste by cutting timber, acquires no title to the timber which he thus unlawfully cuts, and of course can convey none; and further, that a bona fide purchaser from the tenant acquires no title, but is liable in trover to the true owner.

The facts of the case clearly shew that the timber was unnecessarily, and therefore unlawfully cut by Frazer. The logs in question were therefore the property of the plaintiff. The nonsuit must be set aside, and a new trial granted; costs to abide the event.