Perkins v. Stockwell
| Decision Date | 23 November 1881 |
| Citation | 131 Mass. 529 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Joseph L. Perkins & another v. Cyrus Stockwell |
Worcester. Tort for cutting and carrying away pine wood and timber. Writ dated January 17, 1880. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, upon an agreed statement of facts, the material parts of which appear in the opinion.
Judgment for the defendant.
H. C Hartwell, for the plaintiffs.
S Cady, for the defendant.
OPINION
One provision in the deed of the plaintiffs of March 2, 1871, by which they conveyed a tract of woodland to the defendant, was as follows: "Except reserving all the pine trees or pine timber thereon standing and to stand and grow thereon for the term of ten years from October 30, A. D. 1867, and longer by paying said Stockwell ten dollars per year after the expiration of the ten years aforesaid, and said Stockwell is to pay all taxes assessed on said land and pine trees while said trees stand thereon, and not to injure said pines in getting off other timber on said premises."
In determining the rights of the parties, it will be convenient to consider the effect of the first portion of the clause, and what right or estate was excepted or reserved thereby, and afterwards what was added thereto by the second portion thereof.
The distinction between an exception in a deed and a reservation is fully recognized. By an exception something is separated from and taken out of that which would be otherwise granted by the more general words, so that the deed does not operate upon that which is thus excepted. By a reservation, a new right is created in the thing granted which did not previously exist, and is reserved to the grantor. Of reservations, rights of way or rent are common illustrations. By the deed, the whole estate is deemed to pass to the grantee, who then conveys to the original grantor the new right or estate created by the reservation, which is thus an implied grant. The rules by which a reservation or implied grant are to be construed, are the same as those which govern an express grant. Whether a particular provision is intended to operate as an exception or reservation is to be determined by its character, rather than by the particular words used. Shep. Touch. 80. Stockwell v. Couillard 129 Mass. 231. Stockbridge Iron Co. v. Hudson Iron Co. 107 Mass. 290, 321. Ashcroft v. Eastern Railroad, 126 Mass. 196. Even if a reservation of all the trees and timber then growing, or which might thereafter grow, upon the land conveyed, might constitute an estate of inheritance which would be an exception from the grant, such would not be the effect of a reservation of so limited a character as that of a portion of the timber with the right only to have it stand for a definite period. Liford's case, 11 Rep. 46 b. Howard v. Lincoln, 13 Me. 122. Goodwin v. Hubbard, 47 Me. 595. Clap v. Draper, 4 Mass. 266. Putnam v. Tuttle, 10 Gray 48. A sale by deed of all the timber standing on a parcel of land, the purchaser to have two years to take off the same, is a sale of only so much timber as the vendee may take off in that time. Pease v. Gibson, 6 Greenl. 81. Reed v. Merrifield, 10 Met. 155. So it was held in Judevine v. Goodrich, 35 Vt. 19, that, where there is a reservation of trees with a right to enter and cut the same within a limited time, the trees passed by the original grant, and no title was given in the property thus reserved, unless the same was removed within the time limited. In White v. Foster, 102 Mass. 375, which was a case where a grantor had conveyed all the wood, timber and logs on a certain tract of land, provided that the same should be removed from the land within three years, it is suggested that the estate which the grantee acquired might be regarded either as giving full title to the trees, defeasible by failure to cut and remove the same within three years, or as giving to the grantee a leasehold estate in the premises for three years, with a right of appropriation to be exercised during the term. In either aspect, the estate of the grantee would have ceased at the end of the three years, and he could exercise no further right of appropriation. The first portion of the reservation clause in the deed before us only reserves the pine trees and pine timber, with the right to have the same stand and grow for ten years from October 30, 1867; but as there is an implied...
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