#### BENJAMIN ROBINSON vs. DANIEL GEE.

Where the grantor óf á tract of land reserved to himself and his heirs “all the saw-mill timber on the land standing or being, or which may hereafterl Stand or be on the said land or any part thereof; ” held that the grantor and his assignees had only aright to the saw mill timber then on the land or to such trees as might thereafter become fit for saw mill timber, when they became so fit, but that they had no right to prevent the grantee of the land from cutting down pine saplins, though these might, if left undisturbed, have become saw mill timber at some future time.

Held further, that if the person, claiming under such reservation of saw-mill timber had been injured by the grantee of the land cutting down such timber, his proper- remedy was by an action of trespass guare clausum fre-git.

The case of- Brittain v. McKay, I Ired. 265, cited and approved.

Appeal from the Superior Court of Law of Cumberland County at the Special Term of the said Court in December, 1843, his honor Judge Manly presiding.

This was an action of trespass quare clausum fregit brought to recover damages for cutting down and using a number of pine saw-mill timber trees, and for cutting down and using pine cord wood, and for cutting down and using pine rail timber, not needed nor used for plantation purposes, upon a certain tract of land. The plaintiff produced a deed, dated in July, 1800, from Archibald Reed to James Gee, of whom the defendant was the son and heir. This *187deed conveyed to the said James Gee the tract of land in question, called “the pine thicket” containing 200 acres, “to have and to hold the aforesaid tract or parcel of land with all and singular the appurtenances to the same belonging or appertaining, reserving only to himself the said Archibald Reed and his heirs and assigns forever all the saw-mill pine timber on the same land standing and being or which may hereafter stand or be on the said land or any part thereof, with full and absolute privilege of egress and regress in and upon the said land at all times for the purpose of cutting or taking away the said reserved timber except only such timber as shall be at any time necessary for fencing and for plantation uses on the said land.” And then followed the usual covenant of warranty. The plaintiff then produced a deed dated in February, 1803, from the said Archibald Meed to one David Anderson in which the description of the premises conveyed is as follows, “ a certain piece or parcel of land in the said County of Cumberland, situate, lying and being as follows, “ Beginning &c.” (here the boundaries are described) “ being the same land which was sold to James Gee some years ago and the saw mill timber excluded — Which sawmill timber on said land the said A. Reed .only sells to David Anderson and his heirs &c. forever, and the said A. Reed doth warrant and defend the same to the said David Anderson and his heirs forever, and that the saidD. Anderson shall at all times and wheP .he pleases, go upon the said land and take off and cut down any such saw mill timber as he thinks proper free from any hindrance or molestation whatsoever from the owner of the said land or any other person or persons;” By virtue of an execution issuing on a judgment against the said David Anderson the sheriff sold, and, by deed bearing date the 4th November, 1818, conveyed to Jonathan Evans in fee “ a certain piece .or parcel o.f land &o.” (describing it) “being the same land sold by Archibald Reed to James Gee on the 15ih of July, .1800, and all of the pine saw mill timber excepted thereon, which said pine saw-mill timber was sold "by the said A. Reed to *188D. Anderson by deed bearing date the 28th of February, 1803 ; and it is the true intent and meaning of this instrument to sell and convey only the pine saw-mill timber which now is and which ever hereafter shall be on the aforesaid 200 acres of land, with all the rights and privileges vested in the said D. Anderson.” Jonathan Evans on the same day by deed conveyed to the plaintiff all that had been conveyed to him by the said deed of the Sheriff. It was in evidence that the tract of land, called “The Pine Thickett,” had never been cleared except about three acres, upon which was a house inhabited, and that nearly the entire growth thereof was pine — that the widow of James Gee, after his death, which happened nearly forty years ago, had used the land without stint as her own, and enjoyed more than twenty years actual possession of it; and there was no proof that the plaintiff, or those under whom he claimed, had ever exercised the right of getting saw-mill timber on the said land5 but it was in proof that he had got some rails thereon about the time of the alleged trespass by the defendant, and also that the defendant acted under his mother’s authority. It was also in evidence that the defendant admitted he had cut down for market about thirty cords of pine-wood, but denied that he had cut down any trees fit for saw-mill timber. And it was also proved that, at divers times, the defendant had cut down pine wood for the use of his mother’s plantation adjoining, though no times were fixed upon as those at which the acts were done.

It was insisted by the defendant that the plaintiff could not recover in this action, first, Because the reservation in the deed from Reed to Gee was void as a reservation; second, ly, That it could not operate legally as an exception, and, therefore, first, that lieed had nothing in him to convey to Anderson, and, secondly, that even if Reed had any thing in him and had conveyed to Anderson, the judgment, execution and Sheriff’s deed had not conveyed that interest from Anderson to Evans; thirdly, That the plaintiff and those under whom he claimed had lost their right by lapse of time, there being no proof of its having ever been exercised; *189 Fourthly, that, supposing the exception in the deed from Reed to Gee to be valid, there was an exception to an excep- ... , ..... tion, which gave Gee a right to use even saw mill pine timber, whén necessary for fencing or other plantation uses, and that the proof was that any timber of any .description taken by the defendant had been for fencing or other plantation uses; Fifthly, that there was.no proof that any saw mill pine timber had been used or taken by the defendant for any purpose; Sixthly, the defendant relied on the statute of limitations; and Seventhly, that the action of Trespass quare clausum fregit 'was not the proper action, if the plaintiff could maintain any action.

His Honor charged the jury. Reserving all other questions, which had been raised by the defendant in this cause, he left it to them to say, whether the defendant had at any time within three years before the institution of the plaintiff’s action, cut down or otherwise used or destroyed any pine trees fit for saw mill timber, not necessary for fencing the land or other plantation uses, or had commanded thesame to be done or had assented to its being done before or after-wards or had taken benefit thereof. For the present he held the action to be properly brought; and that the plaintiff had a right to all the saw mill pine timber, which might at any time be standing on the said land, subject to the exception, that the defendant might use as much thereof as might be necessary for fencing or ^other plantation uses on the said land; what was saw mill pine timber was a question for them; and having ascertained what was saw mill pine timber from the evidence submitted to them, they were next to en-quire if the defendant had used or caused to be used, at any time within three years before the plaintiff’s suit, any such timber; and, if so, whether it was necessary for fencing or other plantation uses on the said land, and if they so found they would assess the plaintiff’s damages accordingly; -otherwise they should find for the defendant. The jury found a verdict for the defendant. The plaintiff moved for a new trial, First, because his Honor did not. as requested, charge the jury, that, if the defendant cut or used any pine timber, *190wnich might thereafter have become fit for saw mill timber, it was necessary for fencing or other plantation uses, he was guilty of a trespass; Secondly, Because His Honor did not charge the jury, that, if the defendant cut or used (or caused it to be done) any pine timber fit for saw mill purposes, he was guilty of a trespass, whether the same was applied to fencing or other necessary plantation uses on said land or not.

A new trial was refused, and judgment being rendered pursuant to the verdict, the plaintiff appealed.

Henry and Winslow for the plaintiff.

Strange {or the defendant.

DaNiel, J.

The plaintiff contends, that the Judge should have charged the jury, that he was entitled to recover, if the defendant cut down on the said land pine trees or sap-lins,growing and progressing to timber, and which would in time become saw-mill timber, provided they had not been thus prematurely cut down. He insists, that he, as assignee had a title to such growing pine trees and saplins, under the reservation in Reed’s deed to Gee, “of oil the saw-mill pine timber on the same land standing and being, or which may hereafter stand or be on the said land.” It seems to us, however, that the reservation-in Reed’s deed, embraced only the saw-mill pine timber that was then standing, with a contingent use to him and his heirs and asssigns, to any pine timber standing on the land when it by growth had become fit for saw mill purposes. The reservation is not of all kinds of trees, but only of the pines, and not of all the pines, but only of saw mill pines. Whilst the pine trees were saplins were in an unfit state for saw-mill timber, they were apart of the residue of the inheritance, and might be used with that residue, by the owner of the same, in any manner he pleased. But when any of the trees and saplins by full growth became timber, fit to be used at the saw-mill, then there would be a cesser of estate in those trees, by the owner of the land, and an use in the said timber trees would spring up and vest in him, whoever he was, who could deduce .his *191title under the said reservation; with a perpetual licence, enter and cut and carry away the timber; Clap v Draper, 4 Mass. R. 266, where much ot the learning on this subject is to be found. It could never have'been intended by Reed, when he made the reservation, that the 200 acre tract of land should be a perpetual plantation for the raising of pine timber for his benefit. But Reed in his deed, conveyed to Anderson and his heirs for ever,. “ the saw-mill timber only. ” The plaintiff has therefore only the interest that was in Anderson by force ofthedeed-from-the sheriff to E vans. It would seem that Evans only got what was then of full growth for timber; but, at all events, until'the pine trees became fit for saw mill timber, Reed or the plaintiff had no title in them. No use in the trees could, until then, spring up for his benefit. It seems to us that the plaintiff had no title- in the trees, that were cut by the defendant.

If he had, this action was the proper- one for his redress. See the above cited authority, and Brittain vs McKay,. 1 Ired.265.

Per Curiam, Judgment affirmed*