Yeakle v. Jacob

The opinion of the court was delivered by Lowrie, C. J. There might be some sort of plausibility in the right here set up, if it was only a temporary one, to obtain timber for a single repair of certain fences. But it is a perpetual right to resort to a certain woodland for a perpetual supply of fencing material for a certain other tract of land; and it is difficult to point out any kind of interest in land that more needs a written definition than. this. Even with a written definition it would be a constant cause of dissension; and without it, it would be apt to [378] be much more so. With such a servitude on a tract of land, no wise man would buy it, except at such a discount as would be some compensation for the risk of litigation which he would necessarily incur. And no wise man can easily be' believed to have granted such a servitude of his lands; for it is equivalent, for a small tract, to a perpetual dedication of it to the purpose of growing timber, and almost equivalent to a grant of the land itself, so far as the title of the real owner of it is concerned. We are very sure that, if the contract, as the defendant understands it, had been put into writing, his father would not have signed it. At all events, it is plainly within the principle of the statute of frauds; and, not having been put into writing, no more than a license at will passed by it; and the defendant was a trespasser in cutting timber on the land after the sale of it by his father. Judgment affirmed.