Peck v. Brown

By the Court, WhitmáN, J.: The decree from which this appeal is taken was rendered in an action for the recovery of real property; seeking also an injunction to prevent the cutting of standing timber upon the premises, and the removal of trees already cut and made into cordwood or other merchantable form. The .decree granted the entiré relief sought. This appeal, though nominally from the whole thereof, is really only from such portion as enjoins the removal of timber cut, as aftwesaid. It is • true, as urged by respondent, there is no assignment of errors, or proper statement in the transcript; what is offered as a statement, lacks its vital and essential ingredient; there is no recital [83] of tbe grounds upon which the parties rely for relief, but the judgment-roll presents all that is necessary for the decision of the point urged by appellants. The District Court finds that they were in possession at the date of suit, and had so been for some time there before, and had then cut the timber aforesaid; that respondent had no title to the described premises until the tenth day of July, 1868, when he acquired a patent by purchase from the State; that the “ greater part ” of the acts of appellants were done prior to such date. What acts were subsequently done is not found, and as no subdivision is made, the case stands here as if all were done before that time. Unless the right to the timber cut passed to respondent by his patent, he had none; and it could only pass as of a fixture on, or appurtenance to, the realty; but timber felled by act of man, or wood cut, is personal property. Some of the decided cases go a great length in passing with the freehold what abstractly would be held personalty; perhaps none has further extended the rule, or its application, than Farrar v. Stackpole, (6 Maine 155) and Kittridge v. Woods, (3 N.H. 503). In the first of these cases, it was held that a mill-chain, dogs, and bars in their appropriate places when the deed was made, the chain attached by a-hook to a piece of draft chain, which was fastened to the shaft by a spike, passed under a deed conveying a saw mill with the privileges and appurtenances. This decision was based upon the principle, “ that certain things, personal in their nature, when fitted and prepared to be used with real estate, change their character and appertain to the realty as an incident or accessory to its principal.” In the second case cited under the same rule, it was held that certain heaps of manure passed by deed for the land, as appurtenant, being intended to be used upon it, and for its benefit. In the present ease the timber and wood were cut expressly to be taken from the premises, and the ríale of decision quoted has no application. (Walker v. Sherman, 2 Wend. 638; Cook v. Whitney, 16 Ill. 481; Wincher v. Shembury, 2 Scam. R. 283.) This last case is precisely in point upon the facts, so far as respondent’s claim is concerned. Shembury had obtained a certificate of purchase to certain government land, upon which prior to its date, Wincher had cut certain rails and sawed timber. [84] After acquiring his certificate, .S. prohibited W. from removing the rails or timber, and took them away himself. , W. brought action to recover the value, and the Co'urt held that he could maintain the same as against Shembury, saying: “ A certificate of purchase or patent vests in the patentee a title to the land, and generally all that is growing on, or is. in the contemplation of law attached to the land — as houses, fences, growing timber, grains, etc.,* and it is said fallen timber passes with the land. But that which has been severed from the land, and by the art and labor of man converted into personal property, such as implements of husbandry, barrels, furniture, or even rails when not put into a fence, or evidently intended to be so used upon the land, (which could not be inferred if made by a stranger) do not pass with it, any more than the grain, grass, or fruit which has grown upon, and been gathered from it.” Respondent having then no title to the timber and wood cut, had no right to an injunction to restrain appellants from removing the same. (Whether under any state of facts such relief would he proper is not here decided.) The District Court erred in granting such relief; the decree, correct in other respects, must be modified in this, and the cause is remanded, with direction to strike from the decree all thqt portion'restraining appellants from removing the timber or wood cut prior to the tenth day of July, a.d. 1868. JOHNSON, J., did not participate in the foregoing decision.