Timber trees, if blown down, or severed by a stranger, pass by a deed of the land. "We think that it cannot admit of a doubt," remarks Richardson, C. J., in Kittredge v. Wood, 3 N. H. 503, " that trees felled and left upon the land, fruit upon trees, or fallen and left under the trees where it grew, and stones lying upon the earth, go with the land, if there be no reservation." The hemlock trees were lying upon the ground. The tops and branches were remaining upon them. They were not excepted from the defendant's deed, and, being in an unmanufactured state, they must, from analogy to the instances already cited, pass with the land. Such, too, is the statute of 1867, c. 88, defining the ownership of down timber. It would have been otherwise, had they been cut into logs or hewed into timber. Cook v. Whitney, 16 111. 481.

The defendant, at the plaintiff's request, traveled from another State, as a witness, to testify for him in his suit against Works. He claims to have his fees allowed in set-off in this suit. His account in set-off was regularly filed. He is entitled to compensation therefor, which, as claimed, will be travel from his then place of residence, and attendance, in accordance with the fees established by statute.

Offset allowed.

(2.) Bushes and Small Fruits.

Sparrow V. Pond

49 Minnesota, 412. - 1892,

Sparrow, in 1886, recovered a judgment against Pond and others. Pond owned land, a part of which was planted to blackberries. The bushes were cultivated and cared for in the usual way. In 1891, Pond was about to gather the berries, when the sheriff made a levy upon them under execution on Sparrow's judgment. The crop was sold to plaintiff on the execution. Pond prevented the plaintiff from taking the berries, and Sparrow brings this action in replevin. Verdict and judgment for defendant. Plaintiff appeals.

Mitchell, J. - At common law those products of the earth which are annual, and are raised by yearly manurance and labor, and essentially owe their annual existence to the cultivation by man, termed "emblements," and sometimes "fructus industriales" were, even while still annexed to the soil, treated as chattels with the usual incidents thereof as to seizure on attachment during the owner's life, and transmission after death.

This class included grain, garden vegetables, and the like. On the other hand, the fruit of trees, perennial bushes, and grasses growing from perennial roots, and called, by way of contradistinction, "friictas naturales," were, while unsevered from the soil, considered as pertaining to the realty, and as such passed to the heir at the death of the owner, and were not subject to attachment during his life. 4 Kent, Comm. p. *73; 4 Bac. Abr. 372, tit. " Emblements; " Freem. Ex'ns, sec. 113; 1 Schouler, Pers. Prop., sec. 100 et seq. ; State v. Gemmill, 1 Houst. 9; Craddock v. Riddlesbarger, 2 Dana, 205; 4 Amer. & Eng. Enc. Law, tit, "Crops;" Rodwell v. Phillips, 9 Mees. & W. 501.

A possible exception to this classification is the case of hops on the vines, which have been held to be personal chattels, and subject to sale as such. The ground upon which this seems to be held is that, although the roots of hops are perennial, the vines die yearly, and the crop from the new vines is wholly or mainly dependent upon annual cultivation. The decisions upon that question, however, seem to be all based upon the old case of Latham v. Atwood, Cro. Car. 515. See Frank v. Harrington, 36 Barb. 415.

It is sometimes stated that the test whether the unsevered product of the soil is an emblement, and, as such, personal property, is whether it is produced chiefly by the manurance and industry of the owner. But, while this test is correct as far as it goes, it is incomplete. Under modern improved methods, all fruits are cultivated, the quality and quantity of the yield depending more or less upon the annual expenditure of labor upon the trees, bushes, or vines; but it has never been held that fruit growing upon cultivated trees was subject to levy as personal property. No doubt all emblements are produced by the manurance and labor of the owner, and are called "fructus industriales," for that reason; but the manner, as well as purpose, of planting is an essential element to be taken into consideration. If the purpose of planting is not the permanent enhancement of the land itself, but merely to secure a single crop, which is to be the sole return for the labor expended, the product would naturally fall under the head of "emblements." On the other hand, if the tree, bush, or vine is one which requires to be planted but once, and will then bear successive crops for years, the planting would be naturally calculated to permanently enhance the value of the land itself, and the product of any one year could not be said to essentially owe its existence to labor expended during that year; and hence it would be classed among "fructus uatura/es," and the right of emblements would not attach. Darlington, Pers. Prop. 26.

This classification is, of course, more or less arbitrary, but it is the one uniformly adopted by the courts (unless hops be an exception), and it is the only one which will furnish a definite and exact rule. Blackberry bushes are perennial, and when planted once yield successive crops. They grow wild, but, like every other kind of fruit or berry, are improved by cultivation. The quantity and quality of the yield is largely dependent upon the amount of annual care expended upon them, but the difference in that respect between them and other fruits is only one of degree.

It seems to us quite clear that at common law such berries, while growing upon the bushes, were not subject to levy on execution as personal property, and we have no statute changing the rule. Evidently the main purpose of 1878, G. S. ch. 66, sec. 315, was, while permitting immature growing crops to be levied on, to prohibit their sale until they were ripe and fit to be harvested.