Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-19

strongly tending to support defen-
dant's contention.
In Holt V. Stratton Mills, "a N. H.
100, the grantor conveyed the timber
her land to the grantee by deed,
agreeing to deliver 1t to him at a
place, not on the land, at a certain
time. There was a further agree
ment that if she did not deliver 1t
at the time and place mentioned, the
grantee might enter and remove it.
She failed to keep her agreement to
deliver, and after several years had
elapsed the grantee entered and re-
moved the timber. The assignee Of
the grantor brought an action for
trespass for the removal, and 1t was
held that, in the absence of any stip-
ulation to the contrary, the grantee
was to be presumed to have a rea-
sonable time within which to remove
the timber, but that it could not be
presumed that it was intended that
he should be allowed to let it stand
at his pleasure; that the grantee,
having entered after a reasonable
time had expired. was liable for
trespass for the unlawful entry, but,
there having been an absolute sale
to him of the timber, he was not liza
BILE for its value. In other words,
that he, having unlawfully entered to
reclaim his own, was liable in dam
ages for the unlawful entry, but not
for the value of his own property,
which he had removed. This case
differs from the one at bar in this:
~ that no time was fixed within
which the grantee might enter and
remove the property; (2) that there
was no clause in the deed providing
FOR a reversion of the estate in case
timber within a fixed or a reason
able time. The court lays stress upon
the absence of these two provisions,
saying "The deed, in terms, says
nothing about a reasonable time, and
nothing about a condition of removal
within a reasonable time,' and it
might we'll have added, land nothing
about a reversion in case of failure
to remove within a reasonable time"
In addition to this the court held,
following a rule peculiar to New
Hampshire and a very few other
states, that "An unconditional con
veyance of growing trees without the
land, instantaneously sewers them
from the land in contemplation of
law and transforms them into per-
sonal property" the rule in this
state being, that a conveyance of
growing trees upon the land conveys
an interest in the land of which they
are a part.
In Magnetic Ore Co. V. Markgurg,
104 Ala. 465, it is held that an abso-
lutte conveyance of saw timber grow
ing on land, without condition or
limitation as to time of removal,
vested the title to the timber abso-
lutely in the grantee forever. This
is good law probably, but has no APP
plicatiOn to a cast like the present
one when there is a definite time
fixed for removal of the timber and
a definite reverter in case of non-re-
moval.
The case last cited differs from the
New Hampshire case in apparently
ignoring the theory that a ~'reasona-
BILE time" within which to remove
timber is implied where no time is
mentioned and in holding that the
grantee in such a deed is never a
trespasser in entering to remove his
property.
Halstead V. Jessup, $50 Ind. 105
was a case of absolute sale of tim
Der with -four years to take off said
timber" 1t was held that, in the alb
sence of a forfeiture clause, the pur-
chaser was entitled to take the tim
Der after four years, but would be
liable for damages. This case is
easily distinguished from the case at
bar by the absence of a forfeiture
clause in the contract which is so
conspicuous and clear in the present
case but we may remark in passing
that if the learned court means to be
understood as holding that a man
may commit a trespass to take away
timber, after the time limit provided
in tn e deed has expired, it asserts
a very novel proposition of law. The
proposition that one may lawfully
commit an illegal act in order to &C
quire his property and that the
courts will protect him in equity in
so doing but subject him to damages
at law for the same act, involves a
confusion of ideas. The reluctance
which all courts display to enforce
a forfeiture is responsible for much
doubtful law in cases of this kind.
Nee V. Benedict, SO Mich. $50, holds
that a conveyance of timber with
license to remove, within a term of
years with reverter to the grantor, of
timber not removed within that time,
vested title to the timber in the
grantee. This is in accord with our
view of this case. There is no doubt
that the title to the timber embraced
in the deed in the case at bar vested
in the grantee, but subject to be di-
vested by noncompliance with the
condition providing for it's removal.
The question of noncompliance with
the condition was not involved in the
Michigan case above cited.
Hubbard V. Burton, rs Mo. 65, in
volved a conveyance of timber to be
removed within - months. 1t was
held that the word timber" meant
trees standing, felled or lying in
their natural state on the land, and
did not include railroad ties. The
term timber" as commonly used in
this country, signifies either growing
trees or large sticks and is not COM
monty applied to smaller pieces or
rails or cordwood into which the
larger pieces may be worked up.
Golden v. Clock, 81 Wis. 11S APP
plies this rule to stave bolts, while
Hicks ". Smith, n Wis. 146 applies
the same doctrine to saw logs but
in this case there was no condition
or reversion clause in the deed,
which distinguishes it from the case
at bar. and as the case stands wn