Grant of trees as separate property. Licence to take trees. Contract of sale of trees. A grant, or an exception from a grant, of the trees growing in certain land, creates a property in the trees, separate from the property in the soil; but with the right of having them grow and subsist upon it (). An estate of inheritance in a tree may thus be created; which would be technically described as a fee conditional upon the life of the tree (c). Also there may be a grant or exception of trees thereafter to grow on the soil (d). The separate property in trees growing and to grow upon certain land, admittedly the property of another, may also be proved by acts of ownership in cutting and taking away trees from time to time; the presumption from such evidence being that the land had been originally granted away, with an exception of the trees then growing or thereafter to grow in the soil (e). A grant or exception of trees apart from the soil implies a right to enter upon the land for the purpose of cutting and taking the trees, as a necessary incident of the property in the trees (f).-A licence to enter upon land and to cut down trees and take them away may be granted by the owner of the land without conveying to the grantee any property in the soil, or in the trees until cut down and taken by him. Such right would be in the nature of a profit à prendre or profit to be taken from the land of another; and it is, therefore, treated hereafter in connection with that class of rights (g). The sale of growing trees or underwood is primâ facie a contract for the sale of an interest in land within the 4th section of the Statute of Frauds (h). But if the trees are sold as moveable goods, as in the case of a sale of standing timber at so much per foot to be delivered by the seller, or in any manner that does not give any right to the buyer (b) Liford's Case, 11 Co. 46 b. (e) Stanley v. White, 14 East, 332. (f) 11 Co. 52 a, Liford's Case; per cur. Durham and Sutherland Ry. Co. v. Walker, 2 Q. B. 965. (g) Barrington's Case, 8 Co. 136b; Bailey v. Stevens, 12 C. B. N. S. 91; 31 L. J. C. P. 226. (h) Teal v. Auty, 2 B. & B. 99; Scorell v. Boxall, 1 Y. & J. 396. before severance, it is held to be a sale of goods within the 17th section of the statute (i). A lease of land for life or for years, excepting the trees Lease with exception of growing upon the land, leaves the trees in the possession trees. of the lessor, with the right of having them grow in the soil; the trees then are no part of the demised premises, and the fruit or produce of the trees presumptively goes with the trees (/). Consequently, the wrongful cutting of the excepted trees by the lessee is technically an act of trespass, being committed upon property which is in the possession of another. But if the lessee wrongfully cut trees included in the lease, it is an act of waste and not a trespass, and the distinction is to be observed in the remedy (1). Consequently also, a covenant by the lessee not to cut trees excepted from the lease is purely collateral to the land demised; "for the trees being excepted from the demise, the covenant not to fell them is the same as if there had been a covenant not to cut down trees upon an adjoining estate of the lessor." Therefore the covenant will not run with the land; nor will it run with the reversion; but the benefit of it passes to the executor of the covenantee (m).—Upon a grant of land, excepting the trees, in fee simple, the trees are divided in property from the land, although in fact they remain annexed; and if afterwards the grantor grants the trees to the grantee, they are re-united in property as they are in fact, and they are again made parcel of the inheritance. But upon a lease of land, excepting the trees, for a term of life or for years, if the lessor afterwards grants the trees absolutely to the lessee, the trees are not re-united in property to the land; because the lessee has not equality of ownership in both, and it would derogate from the grant (i) Smith v. Surman, 9 B. & C. 561; Marshall v. Green, L. R. 1 C. P. D. 35; 45 L. J. C. P. 153; but see Lavery v. Purssell, 57 L. J. C. 570. (k) Liford's Case, 11 Co. 50 a; (m) Raymond v. Fitch, 2 C. M. Construction of grants and exceptions. Timber trees. of the trees for the lessor to retain any interest in them (n). to A grant of "woods" or of "underwoods" is sufficient pass the land itself; those terms are taken primâ facie to mean not only the trees growing, but the land also upon which they grow; and an exception of those words in a grant or demise of land primâ facie excepts the soil (o). But a lease of land "excepting all underwoods, with free entry for felling and carrying away of the same at times convenient," was held not to except the soil, that intention being shown by reserving the power of entry (p). An exception of " timber and other trees" does not except the soil, but only a right to have the trees grow in the soil; and in a lease, "excepting all timber and other trees, woods and underwoods," the words "woods and underwoods," used in connection with "timber and other trees," were construed to mean woods other than timber and not to except the soil (g). An exception in a lease of "all timber and other trees" was construed strictly in favour of the lessee as confined to trees of a like kind to timber trees; and therefore not to except from the lease trees commonly known as fruit-trees, such as apple and other orchard trees (). A power of leasing with the exception of "all timber trees and trees likely to become timber" was held not well executed by a lease which excepted only "all timber trees and the bodies of all other trees"; for, as it did not except the top and lop of the trees likely to become timber, it demised in terms more than the power authorised (s). Trees are distinguished in law as timber trees and trees which do not bear timber, that is, wood fit for building. (n) Herlakenden's Case, 4 Co. 62 a; Liford's Case, 11 Co. 50 a. (0) Co. Lit. 4b; Liford's Case, 11 Co. 49b; Ire's Case, 5 Co. 11 a; Whilster v. Paslow, Cro. Jac. 487. (p) Shepherds' Touchst. by Pres ton, 100. (2) Leghv. Heald, 1 B. & Ad. 622. (r) Wyndham v. Way, 4 Taunt. 316; Bullen v. Denning, 5 B. & C. 842. (8) Dee v. Lock, 2 A. & E. 705. By general custom oak ash and elm are timber trees, provided they are of sufficient age, and provided they are not too old to bear a reasonable quantity of useful wood; beech, willow, birch, aspen, maple, and other trees of like kind are not generally timber. By special local custom, beech, willow and other trees may also be considered timber trees; and they will then pass under that description (f). Fir and larch which are usually planted for profit by thinning until the whole plantation is cut; or for the protection of plantations of timber trees, are not generally timber trees (u).—By a general rule of law trees which are of the description to bear timber become timber trees at twenty years' growth; whether they are timber trees by general or by local custom; no customary variation of this rule being admissible (v). tenant to Timber is not an ordinary profit of land, but is part Right of of the inheritance; therefore tenant for life or years, timber. unless made unimpeachable for waste, is not entitled to cut timber and appropriate it to his own use, although it be ripe for cutting or going to decay (w).—Exception is Timber estate. made of "timber estates" or land cultivated specially for the growth of timber, in which the timber is considered as an ordinary profit, like annual or other periodical crops; and tenant for life is entitled to cut and take the timber coming to maturity from time to time during his tenancy, (4) Co. Lit. 53 a; Chandos v. Talbot, 2 P. Wms. 606; Gordon v. Woodford, 27 Beav. 603; 29 L. J. C. 222; Jessel, M. R., Honywood v. Honywood, L. R. 18 Eq. 309; 43 L. J. C. 652. Beech is timber in the county of Bucks, Aubrey v. Fisher, 10 East, 446; willow in the county of Hants, Hob. 219. (u) Harrison v. Harrison, 54 L. J. C. 617; L. R. 28 C. D. 220. See Pidgeley v. Rawling, 2 Coll. 275. (e) 45 Ed. III. c. 3, declaratory of the common law, 2 Co. Inst. L. 643; Aubrey v. Fisher, 10 East, (w) Perrot v. Perrot, 3 Atk. 95; Ꭰ Trees not timber. into timber. subject to the obligation of maintaining the plantations (x). It is said that" in many places oak coppice is felled regularly every sixteen or eighteen years leaving poles which are regularly cut every second fall, i. e., every thirty-two or thirty-six years. This timber would constitute the fair profits of the land, to which the tenant for life would be entitled" (y). Tenant for life may cut and take trees not being timber trees; but subject to impeachment of waste if the cutting is injurious to the inheritance. Cutting trees of any kind that are beneficial to the property, for protection, ornament or other permanent purpose is waste. Thus tenant for years may cut and take willows and other like trees, provided they do not serve for shelter to a house or for support to the bank of a stream or other permanently beneficial purpose (z). So it is said, "If the tenant cut down or destroy any fruit trees growing in the garden or orchard it is waste; but if such trees grow upon any of the ground which the tenant holdeth out of the garden or orchard, it is no waste" (a). Where non-timber trees, as larch and fir, are grown in the manner of a timber estate, they can be cut by tenant for life only in due course of taking the profits, and cutting them at other times and for other Trees growing purposes is waste (b).—Where trees are grown for timber which are as yet too young to be timber trees; these a tenant for life cannot cut, except in the ordinary course of thinning for the improvement of the remaining trees (c). And tenant without impeachment of waste may be restrained from cutting timber of insufficient growth to be (x) Honywood v. Honywood, L. R. 18 Eq. 309; 43 L. J. C. 652; Wigram, V.-C., Ferrand v. Wilson, 4 Hare, 374. (y) Bagot v. Bagot, 32 Beav. 517; (2) Co. Lit. 53a; Phillips v. (b) Harrison's Trusts, L. R. 28 C. D. 220; 54 L. J. C 617; Bateman v. Hotchkin, 31 Beav. 486; 32 L. J. C. 6. (c)_Honywood v. Honywood, L. R. 18 Eq. 310; 43 L. J. C. 652; Cowley v. Wellesley, L. R. 1 Eq. 656, as corrected by Jessel, M. R. in Honywood v. Honywood. |