#### W. B. BASNIGHT et al. v. P. H. SMALL.

(Filed 10 September, 1913.)

1. Fixtures — Logging Roads.

An ordinary logging road affixed to the land by tbe owner of the land is a fixture which ■ goes with the conveyance of the title thereto.

2. Same — Deeds and Conveyances — Vendor and Vendee — Reservation of Timber — Expressio Unius, Etc. — Intent.

A deed to land whereon is laid and affixed an ordinary logging road, which reserves a part of the timber growing on the land, and does not reserve the logging road, passes the title to the latter, under the doctrine of expressio unius exclusio alterms; and the contention that the logging road was not intended as a fixture and should not be considered as such, for that it was for the purpose of removing the timber reserved in the deed, cannot be maintained. S. v. Martin, 141 N. C., S32, cited and applied.

Appeal by plaintiffs from Whedbee, J., at Eall Term, 1912, of PekquimaNS.

Tbis is an action to recover damages for entering upon tbe land of tbe plaintiff and removing a logging road tbexefrom.

On 31 December, 1910, tbe defendant conveyed tbe land to tbe plaintiffs, reserving all tbe pine timber tbat would measure 10 inches across tbe stump wben cut, provided tbe same was cut witbin ten1" years.

Tbe plaintiff W. B. Basnigbt testified as follows: “I am one of tbe plaintiffs. Oason and I bought tbe land described in deed from Small for $10,000. About one-third- of it was wood*16land. Besides the pine reserved by Small, there was some poplar and a good bit of gum and oak. At the time the bargain for the land was made, and when tbe deed was made, looth, there was a logging road upon the land. This road started at the sound and ran back, through the woods, on edge of the pasture and into the swamp, for about a mile. All of the road was on this tract of land and was built for the purpose of getting out the timber on this tract. This road was just an ordinary logging road. -First the ties were laid and then the rails. A few of the ties were entirely underground, others filled in with dirt, so as to make the road level. Road was made level enough for mules to walk upon. There were two trestles, one 30 and one 40 yards in length. The 30-yard one was about 4 feet high. On these trestles the ties were laid on posts- or piling, right close together, joining so as 'to make it solid. The rails were 12-pound rails,. and were fastened to the ties with spikes. Ties were pine — sap pine, I think — and would have lasted four or five years. At the time of Small’s deed to Cason and me, there was timber upon this tract, other than the pine reserved by Small, large enough to cut, and we could have used this road beneficially in getting out this other timber.

“Small moved this road. This after his deed to plaintiffs was made. Tore up the road and hauled the rails away. The land was worth $1,500 less, after the road was removed, than it was with the road there as it was when plaintiffs bought it.

“Small moved but a few pines after plaintiffs bought land. Don’t know whether he hauled them over road or in wagons. He used road for hauling pines before he sold land to me.

“After Small moved road, he sold me the pine timber (reserved in his first deed) for $2,000. Don’t remember whether this was before or after this suit was brought — some time in July or August last year.”

Plaintiffs then introduced the following admissions:

“It is admitted that Miles Goodwin, if present, subject to competency and relevancy, would swear that he has had much experience in cutting out rights of way through woods, similar to that spoken of in complaint, and that the cost of cutting out *17such right of way and laying ties and iron on it, in making a timber road, would be from 25 cents to 30 cents_ per yard, in making a mile of road.”

Plaintiffs rested.

At the conclusion of the plaintiffs’ evidence, the defendant moved for judgment as of nonsuit, which was allowed. Plaintiffs excepted and appealed to the Supreme Court.

Bond & Bond and P. W. McMullan for plaintiffs.

Ward & Thompson and Charles Whedbee for defendant.

AlleN, J.,

after stating the case: If there is- any evidence that the logging road was a fixture, there was error in entering the judgment of nonsuit, because, if a fixture, it passed to the plaintiff by a conveyance of the land, and he would be entitled to recover damages for its removal, and we are of opinion there is such evidence.

The logging road was annexed to the soil, and if the testimony of the plaintiff is true, it was built for the better enjoyment of the land, and was adapted to that purpose, thus meeting the rule stated by Justice Walker in S. v. Martin, 141 N. C., 832, which, while correct as applied to the facts then being considered, is more favorable than the one adopted by our Court as applicable between vendor and vendee, which is the relationship of the plaintiffs and the defendant.

In Overman v. Sasser, 107 N. C., 435, substantially all of the cases bearing directly on this question are collected by the present Chief Justice, and the Court there adopts the rule laid down by Lord Ellenborough in Elwes v. Mawe, 3 East, 38, that as between vendor and vendee “the common-law rule, that whatever is affixed to the freehold becomes a part of it and passes with it, is observed in full vigor.”

The defendant contends, however, that although this may be the rule usually applied between vendor and vendee, that the fact that the logging road was built for the removal of the timber, and that the pine timber is excepted in the deed, take this case out of the rule, and that when the character of the road is- considered, it appears that it was not the intention of the parties that the logging road should pass by the deed.

*18The answer is, that if he built the road for the sole purpose of removing the timber, he was at that time the owner of the timber, and if he then made the road a part of the land by annexation, he could not afterwards change its character by selling the land, reserving the timber.

It also appears from the evidence of the plaintiff that there was other timber on the land, not reserved, large enough to cut, and that the plaintiffs could have used the road beneficially in getting out this timber.

The reservation in the deed, instead of strengthening the contention of the defendant, refutes it, upon the familiar maxim, expressio unius exclusio alterius.

The conclusion is almost irresistible, that when the attention of the defendant was called to the reservations he wished to make by mentioning the pine timber, he would have also included the logging road, if he had not intended it to pass by the deed.

There is error.

Reversed.