This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Any growth of the soil, even though not produced by annual labor, is personalty after its actual severance from the soil by the owner of the land, as in the case of timber cut by him. Furthermore, by the weight of authority, there may be constructive or legal severance of vegetable products while still growing or standing in the soil. Thus, it has been de-decided that, upon a conveyance by the landowner of growing trees apart from the land, they become personalty,77 and the same effect has been given to an
74. Sparrow v. Pond, 49 Minn. 412, 16 L. R. A. 103, 32 Am. St. Rep. 571, 52 N. W. 36; Adams v. Smith, 1 Breese (111.) 283, Rogers v. Elliott, 59 N. H. 201, 47 Am. Rep. 192.
75. Evans v. Roberts, 5 Barn & C. 832; Parham v. Thompson, 2 J. J. Marsh (Ky.) 159; Craddock v. Riddlesbarger, 2 Dana (Ky) 205; Penhallow v. Dwight, 7 Mass. 34; Whipple v. Foot, 2 Johns. (N. Y.) 418, 3 Am. Dec. 442; Stewart v Doughty, 9 Johns. (N. Y.) 108; Pattison's Appeal, 61 Pa. St. 294, 100 Am. Dec. 637; Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284.
It has occasionally been held that an execution cannot be levied on the crops as personalty until their maturity. Ellithorpe v.
Reidesil, 71 Iowa, 315, 32 N. W. 238; Tipton v. Martzell, 21 Wash. 273, 75 Am. St. Rep. 838, 57 Pac. 806, criticized, 3 Harv. Law Rev. 218; and see Heard v. Fairbanks,
5 Mete. (Mass.) I11, 38 Am. Dec. 394. In some states there are statutory provisions as to the state of maturity of the crop for this purpose. See 8 Am. & Eng. Enc. Law (2d Ed.) 309.
76. Peacock v. Purvis, 2 Brod.
& B. 362.
77. Bacon, Abr. Executors (H) 3; 1 Williams. Executors (9th En.) 620; Toller, Law of Executors, 194; Went worth, Office of Executors, 194; Stukeley v. Butler, Hobart, 168; Asher Lumber Co. v. Cornett, 22 Ky. L. Rep. 659, 58 S. W. 438; Kingsley v. HolR. P.-56.
[Sec. 261 exception of the trees on a conveyance of the land.78 By other decisions, while it is recognized that the ownership of the trees may be vested in a person other than the owner of the soil, they are regarded as still retaining the character of land, so long as they are rooted in the soil,79 and, so regarded, an estate therein may properly be considered to exist in such other person, either an estate of inheritance,79aor an estate for years, as when trees are leased, separately from the land, for a certain period, as is frequently done where the sap is utilized for commercial purposes.80
In the case of the separate conveyance of standing trees, or of their exception from a conveyance of the land, their owner has an interest in the soil sufficient for their support and nourishment, in the nature of an easement, and also the right to enter on the land in order to cut and remove them.81 brook, 45 N. H. 313, 86 Am. Dec 173; Bank of Lansingburg v. Crary, 1 Barb. (N. Y.)• 542; Fair-banks v. Stowe, 82 Vt. 155, 138 Am. St. Rep. 1074, 74 Atl. 1006. See Liford's Case, 11 Co. Rep. 46b, 50a.
In France v. Deep River Logging Co., 79 Wash. 336, 140 Pac. 361, it was considered that a conveyance of the trees effected their conversion into personalty only if there was some limitation of time within which the grantee might remove the trees.
78. Wentworth, Office of Executors (14th Ed.) 148; 1 Williams, Executors 620, (citing Her-lakenden's Case, 4 Coke, 63b, which does not, however, sustain the statement); Baker v. Jordan, 3 Ohio St. 438; Sterling v. Baldwin, 42 Vt. 306. See McClintock's uncut trees but merely a license to cut and remove them during that time.90 In a few cases the stipulation as to time was regarded as not affecting the right to cut and remove trees after the time named, but as at most giving merely a right of action to the landowner for the damage caused by the occupation of the land by the trees, and the entry thereon by their owner, after that time.91
Appeal, 71 Pa St. 366.
79. Liford's Case, 11 Coke, 46b; White v. Foster, 102 Mass. 375; Knotts v. Hydriok, 12 Rich. L. (S. C.) 314; Williams v. Jones. 131 Wis 361, 111 N. W. 505.
79a. Barrington's Case, 8 Coke, 136b; Liford's Case, 11 Coke, 46b, Cro. Jac 487; Stanley v. White, 14 East, 338; North Georgia Co. v. Bebee, 128 Ga. 563, 57 S. E. 873; Clap v. Draper, 4 Mass. 266; White v. Foster, 102 Mass. 375; Chapman v. Dearman, - Tex. -, 181 S. W. 808.
80. Perkins v. Petersor 110 Ga. 24, 35 S. E. 319; Carter v. Williamson, 106 Ga. 280, 31 S. E. G51.
81. Liford's Case, 11 Coke, 46b; White v. Foster, 102 Mass 375; Wait v. Baldwin, 60 Mich. 622, 1 Am. St. Rep. 551, 27 N. W. 697.
- Form of conveyance. In order to effect a valid conveyance of growing trees, there must be a written instrument executed with the same formalities as are required in the transfer of a like interest in any other part of the land.82 Even though the effect of the conveyance is to make the trees chattels, still they are not chattels when it is executed. For the same reason a mortgage of growing trees as such should, it seems clear, he executed and recorded as a mortgage of land and not as a mortgage of chattels.83 Occasional decisions84 to the effect that trees, or other fruc-tns naturales, such as grasses, may he the subject of chattel mortgage by the owner of the land, are, it is submitted, unsound. If they can be conveyed only as land, they can be mortgaged only as land.85 A separate transfer or mortgage of fructus industriales is to be distinguished in this regard, a transfer or
82. Heflin v. Bingham, 56 Ala. £66, 28 Am. Rep. 776; Griffith v. Ayer-Lord Tie Co., 109 Ark. 223, 159 S. W. 218; Richbourg v. Rose, 53 Fla. 173, 44 So. 69; Coody v. Lumber Co., 82 Ga. 793, 10 S. E. 218; Bank v. Bouse, 142 Ky. 612, 134 S. W. 1121; Powers v. Clark-son, 17 Kan. 218 (growing grass); White v. Foster, 102 Mass. 875; White v. King, 87 Mich. 107, 49 N. W. 518; J. Neils Lumber Co. v. Hines, 93 Minn. 505, 101 N. W. 959; Williams Cooperage Co. v. Quercus Lumber Co., 187 Mo. App. 373, 173 S. W. 42; Kingsley v. Hol-brook, 45 N. H. 313, 86 Am. Dec. 173; Bank of Lansingburgh v. Crary, 1 Barb. (N. Y.) 546 (growing grass); Drake v. Howell, 133 N. C. 162, 45 S. E. 539; Pattison's Appeal, 61 Pa. 294; Childers v Coleman Co., 122 Tenn. 109, 118 S. W. 1018; Prance v. Deep River chattels 93 In two or throe states there seems to be a presumption in favor of such a const ruction of the contract,94 and the fact that, there appears an intention that the cutting or gathering shall take place immediately has been regarded as strongly in favor of such a construction.95