Must the law apply a different rule in each case? Suppose the case of trees prostrated by a tornado, but with roots still adhering to the soil; shall they pass by the deed, or be reserved by parol? Obviously, such trees must be considered as part of the realty, and we think that there can be no safer general rule, than that founded on the old maxim, "Cujus est solum ejus est usque ad caelum," which may, perhaps, be liberally translated, " The owner of the soil owns from the center of the earth up to the sky." Various qualifications and limitations have been established as to fixtures, emblements, and the like; but we find no judicial warrant or authority for the claims of the defendant in this case.

The judgment must be reversed, and the case remanded for a new trial.

Brady V. Waldron

2 Johnson's Chancery (N. Y.), 148. - 1816.

Bill filed by the plaintiff, a mortgagee, for an injunction to stay waste in cutting timber on the mortgaged premises, whereby the land would become an insufficient security for the debt. There was no suit pending for a foreclosure.

The Chancellor - An injunction lies against a mortgagor in possession to stay waste. The court will not suffer him to prejudice the security. Dick. 75; 3 Atk. 210, 237, 3 Ves. 105.

Injunction granted.

(2.) How Exceptions or Reservations Must be Made. Their Effect.

Cockrill V. Downey

4 Kansas, 426. - 1868.

[Reported herein at p. 174.]

Clap V. Draper

4 Massachusetts, 266. - 1808.

Parsons, C. J. [After stating the action and reciting the substance of the special verdict.] - The two deeds in this case, executed on the same day, the latter referring to the former, and relating to the same transaction, must be considered as intended to effect the same contract, and must be construed together. The result of this joint construction is, that the grantor conveyed the close to the grantee in fee, reserving to himself an inheritance in the trees and timber, not only then growing, but which might thereafter be growing in the close. This is the natural effect of the grantee's agreement that the grantor and his heirs should have all the trees and timber stand-ing and growing on the close forever, and not merely those then standing, or which should be standing within a limited time; and of a perpetual license to cut and carry them away. The plaintiff having all the estate in the trees, timber and close, which the grantor had after execution of these two deeds, he has an inheritance in the trees and timber, with an exclusive interest in the soil so far only as it may be necessary for the support and nourishment of the trees. 8 Co. 271; Cro. Jac. 487; 2 Roll. Abr. 455, 20; 11 Co. 46.

For cutting down and carrying away the trees, trespass undoubtedly lies. 2 Leon. 213; Hitchcock x. Harvey.

But the defendant insisted that the plaintiff could not maintain trespass for breaking the close. Upon looking into the cases, we are satisfied that the plaintiff, having an inheritance in the trees, and an exclusive right in the soil of the close, as far as was necessary for their support and nourishment, may maintain trespass for breaking the close, as well as for cutting. It appears to be a principle of law well settled, that where a man has a separate interest in the soil for a particular use, although the right of the soil is not in him, if he be injured in the enjoyment of his particular use of the soil, he may maintain trespass quare clausum fregit; but not if his interest is in common with others. Thus, this action lies for him who has the herbage, although not a right to the soil. Moor. 355; Hoe v. Taylor, - Co. Litt. 4b; Dalison 47, - ; Moor. 302, - ; Cro. Eliz. 421. But if he is entitled to a portion of the herbage for a particular part of the year, he cannot maintain this action, but may maintain an action of trespass for spoiling his grass. 2 Leon. 213. Vide also Yelv. 187, Dewclas et al. v. Kendall et al.

The latest case on this subject is the case of Wilson v. Mackreth, 3 Burr. 1824. The plaintiff had an exclusive right to take the turf in a several parcel of ground, in which, and in other parcels adjoining, he and the other tenants of the manor had common of pasture, the right of the soil being in the lord of the manor. The defendant dug and carried away peats in the place in question, and it was held that the plaintiff might maintain trespass quare clausum fregit against him. And the difference there taken is between exclusive rights and rights in common; that if the plaintiff had only a common of turbary, trespass would not lie.

Upon the authority of this case, as well as the reasonableness of the principle, in the plaintiff, in consequence of his inheritance in the trees had such an interest in, although not the right of soil, that he may maintain trespass quare clausum fregit in this case, and must have judgment on the special verdict.

Saltonstall V. Little

90 Pennsylvania State, 422. - 1879.

Ejectment by Little, as executor of Kingsbury, against defendants as trustees, succeeding to the interest of Veazie.

Kingsbury, in 1859, sold to one Hyde certain standing timber to be taken off within twelve years. A few days later he deeded the law of prop, in land - 12 land to Veazie, reserving said timber with the right to take it off within twelve years from date of deed.

It was agreed at the hearing below that if the court should be of opinion that the property in said pine timber, remained in Kingsbury, his heirs, etc., after the expiration of the term of twelve years, limited in the deed, then there should be judgment for the plaintiff, but if the court be of opinion, that after the expiration of said term the property passed to Veazie and his assigns, then judgment should be entered for defendants.

Judgment for plaintiffs. Defendants bring writ of error.

Paxton, J. - Whether we regard the clause in controversy, in the deed from Kingsbury to Veazie, as a reservation or an exception, the result is the same, for in either event Kingsbury or his grantee of the timber was restricted to twelve years, in which to cut and remove it. The reservation of the timber was not an absolute severance of it from the freehold. It was a severance only upon the condition of its removal within twelve years. It is true no such express condition appears, and the words, proviso, ita quod and sub conditione, so much relied upon by Lord Coke, are not to be found in the reservation. But conditions may be implied as well as expressed. There is abundance in the reservation from which such a condition may be implied. " If a man grant all his trees to be taken within five years, the grantee cannot take any after the expiration of five years, for this is in the nature of a condition annexed to the grant." Bacon's Abridgment, tit. Grant. In Boults v. Mitchell, 3 Harris, 371, there was a sale of the land, " excepting and reserving therefrom, all the timber that is suitable for rafting and sawing of every description." In that case no time was limited within which the timber must be removed, yet it was held that " the grant was in its very nature determinable; the right to cut timber was not to continue forever at the pleasure of the grantee and his assigns; and if from the destruction of the trees, the subject of it, or the refusal of the party to exercise his right after a reasonable notice to do so, the right itself is determined; the privilege of entry is gone with it, and the owner of the land may sue for breach of close, though he may not recover in damages the value of trees taken, the property of which is not in him." In the case in hand, the parties have fixed the time during which the trees may be removed. Had no time been limited, the law would have allowed a reasonable time in order that the grantor might not be defeated of his reservation. But he would have been compelled to remove them upon reasonable notice, otherwise the reservation would have been a perpetual servitude, which was not contemplated by the parties, and is repugnant to the grant. Having fixed their own time for the removal of the timber, it is too clear for argument, that the right of entry falls with its expiration. It was contended, however, that even if the right of entry is gone, the right of property in the trees remains, and the case stated was evidently framed to meet this possibility. It would certainly be a barren right to own trees upon another's land, with no right of entry to take them away. The plaintiffs have no such property in the timber. The limitation upon the right of entry was a limitation upon the exception itself. It was a reservation of the timber for twelve years and no longer. After that time, the trees remaining passed with the grant of the soil to which they were attached. This is the construction placed upon such agreements in the lumber regions where they are frequent, and it accords with reason and common sense. We made a somewhat similar ruling in Leconte v. Royer, decided in 1877.