Noyes v. Goding

72 A. 181, 104 Me. 453, 1908 Me. LEXIS 90

• Court: Supreme Judicial Court of Maine
• Decided: November 27, 1908
• Status: Published

Opinion

Spear, J.

This is an action of trespass quare clausum. The plaintiff purchased the locus in quo of the defendants by deed dated May 2, 1904. It was an ordinary warranty deed containing the following clause: "Excepting and reserving, however, from the above described premises, all the pine trees now growing on the same, with the right for the same to remain for a period of two years from date of this deed and not longer.”

It is admitted that the timber purporting to be reserved, was cut in December 1907 against the objection of the plaintiff. No plainer language could be used, calculated to fix the defendants’ rights, than that contained in the reserving clause. The trees were all the time a part of the realty. The clause permitting their removal was an executory contract, the performance of which was to be consummated within two years from the date of the deed. At the end of that time, the contract was self-terminating, and the deed then had precisely the same effect touching the trees as if no reservation had ever been made. At the expiration of two years, the defendants’ right to remove them had ceased. Pease et al. v. Gibson, 6 Maine, 81; Donworth v. Sawyer, 94 Maine, 242; Emerson et als. v. Shores, 95 Maine, 237 and Erskine v. Savage, 96 Maine, 57.

In accordance with the stipulation in the report, the entry must be,

Judgment for the plaintifffor $87.