Pease v. Gibson

• Court: Maine Supreme Court
• Writing for the Court: MELLEN, C. J.
• Citation: Pease v. Gibson, 6 Me. 81 (Me. 1829)
• Decision Date: 01 May 1829
• Parties: PEASE & AL. v. GIBSON

6 Me. 81

PEASE & AL. v. GIBSON

Supreme Judicial Court of Maine, Oxford

May, 1829

IN this case, which was trespass for breaking and entering the plaintiff's close in Brownfield, and cutting his timber trees, the defendant pleaded the general issue; and a license, given Dec. 7, 1819, by one James Osgood, who was then seised in fee of the close, to one Joseph Howard; and a conveyance Nov. 24, 1824, by Howard, of all his interest therein, to one Jackson Wood; and alleged that Joseph Howard and one Moses Howard, Oct. 11, 1825, being seised in fee of the premises, conveyed them to the plaintiffs, who, on the same day, gave license to Wood, under whom the defendant justified as his servant. Which was traversed, and issue was joined thereon.

To prove the issue on their part, the plaintiffs introduced a deed with general warranty, dated Oct. 11, 1825, from Joseph and Moses Howard, conveying to the plaintiffs the locus in quo, " reserving all the privileges to Jackson Wood for the timber sold him, as per James Osgood's obligation to me in Wood's possession." And they proved the cutting of the timber as late as the year 1826, as alleged in the writ.

The defendant relied wholly on the obligation alluded to in the plaintiff's deed, which was under seal, and in the following terms: " I hereby agree to let Joseph Howard Esq. have all the pine trees fit for mill-logs on my land in Brownfield, beginning at Capt. Abner Sawyer's corner, on Brownfield line, thence running on Sawyer's line, and by said line to the county road, thence on said road to the ten-mile-brook, thence up the ten-mile-brook to the town line of Brownfield. Said Howard to have the timber on the north side of said brook, and on the southwest side of the Kezer-hills. Said Howard not to cut any timber on said Kezer-hills, nor on the side of said hills, the same being reserved by the subscriber. Said Howard to have two years from date to take off said timber. I acknowledge one hundred and fifty dollars for the same. Brownfield, Dec. 7, 1819. James Osgood." It was assigned to Wood by the following indorsement.--" This may certify that I have sold to Jackson Wood all my right and interest in and to the within obligation, to have the same privilege of cutting and hauling the pine trees that I have. Nov. 24, 1824. Joseph Howard."

The defence was overruled by Parris J. before whom the cause was tried; and a verdict was taken for the plaintiffs, subject to the opinion of the court upon the effect of the instrument adduced.

Judgment on the verdict.

Holmes and Chase, for the defendant, argued that it was an absolute sale, of all the timber on the land, and not merely of such as the vendee could get off in two years; and that the limitation of that term of time was only an indication of the period within which he might enter and carry away timber without the payment of damages. After its expiration, they contended, he might still take away his timber, subject to any reasonable claim of the owner of the soil, for damages thereby occasioned. And such was the construction given to the instrument by Howard, in the deed to the plaintiffs. The reservation in this deed was the creation of a new lease, and operated for the benefit of the party in whose favor it was created. Emery v. Chase, 5 Greenl. 232.

Greenleaf and Deblois for the plaintiffs.

OPINION

MELLEN C. J. delivered the opinion of the Court at the ensuing May term in Lincoln.

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