Strasson v. Montgomery

Reed of growing timber, construction of; effect of on jurisdiction of justice in trespass quwe clausum. A deed of growing timber conveys an interest in the land. In an action in justice’s court for a trespass to plaintiff’s close by cutting growing timber and removing it therefrom, if defendant claims the timber under such a deed, and gives the usual bond, he is entitled to have the cause removed to the circuit court. A deed of growing timber with a proviso that the same shall be removed by grantee within a certain time, conveys only such timber as is cut within that time; and what remains uncut at the expiration thereof belongs to the grantor or his grantee of the soil. The time limited in such a deed to W. was December, 1870; and before its expiration the grantor conveyed the land to plaintiff, “ excepting and reserving.a certain amount of timber heretofore gold toW; and the saidW. or his assigns is to have until December, 1871, to take off said timber.” Held, (1.) That the reservation is, in law, contradictory and inoperative. (2.) That, the grantor’s covenant of warranty in his deed to W. having been fully performed in December, 1870, and having no application to timber cut after that time, W. is not in privity with said grantor in respect to the deed to plaintiff, but is a stranger to such deed. (3.) That a reservation in a deed in favor of a stranger is void. Rich v. Zeilsdorf, (22 Wis., 544), as to the difference between a reservation and an exception in a deed, approved.

APPEAL from tbe Circuit Court for Walworth, County. Tbis action was commenced before a justice of the peace. The complaint charges that in November, 1871, and at divers times afterwards, the defendant broke and entered into the enclosure of the plaintiff (describing the same), and cut down and carried away certain trees and timber therefrom, to the damage of the plaintiff, etc. The defendant interposed an answer in writing, which, in addition to a general denial, set forth as a defense to the action, that on the fourth day of December, 1866, one Gleason, who was then the owner in fee of the premises described in the complaint, by an instrument in writing under his hand and seal, bargained, sold and conveyed unto one White all the trees and timber of every kind growing and being upon said premises; that in September, 1867, Gleason and others conveyed the same lands to the plaintiff, but in such conveyance the grantors reserved to said White the right to take off said timber until December, 1871; that White sold and conveyed such timber to the defendant; and that the defendant thereupon entered upon the premises, and cut and carried away the trees and timber therefrom, as he lawfully might, which are the same supposed trespasses complained of, etc. At the time of tendering such answer, the defendant executed the bond required by the statute (Tay. Stats., 1364, § 57), and filed the same with the justice; and thereupon the justice transmitted the case to the circuit court. When the case was brought on for trial in the circuit court, a jury was duly waived by the parties, and before the trial commenced the defendant moved to dismiss the action for want of jurisdiction, claiming that the answer does not show that the title to lands is in question. The court denied the motion, and the defendant duly excepted to the ruling. On the trial it appeared that the timber in question was cut and taken from the premises of the plaintiff in November, 1871. The several conveyances mentioned in the answer were read in evidence. The conveyance of the timber by Gleason to White contains the following: “ Provided always, and these presents are upon this express condition, that the said party of the second part shall take all of said trees and timber off of said -lands within four years from this date.” It also contains a covenant of warranty. The conveyance of the premises by Gleason and others to the plaintiff contains the following clause: “excepting and reserving a certain amount of timber heretofore sold Elias N. White, and the said Elias N. White or his assigns is to have until December, 1871, to take off said timber.” The circuit court held that the exception or reservation in the conveyance to the plaintiff did not give the defendant any right to cut and remove' the timber from the premises after December 4, 1870, and accordingly gave judgment for the plaintiff, for one dollar damages, and for costs. The parties had stipulated during the trial that if the plaintiff recovered in the action his damages should be assessed at the above sum. The defendant appealed from the judgment. argued that if the facts alleged in the answers did not show that the title to the land would come in question, then the justice should have tried the cause and disregarded the bond, and the circuit court acquired no jurisdiction, and should have dismissed the case. R. S., ch. 120, secs. 51, 52; Verbeclc v. Verbeclc, 6Wis., 159. But, in fact, the conveyance from Gleason to White was not merely a sale of the timber, but conveyed an interest in the land. The reservation in the deed to Strasson was not for the benefit of a stranger to the deed, but for the benefit of the grantor, who had previously granted the timber by deed with covenants of warranty to White. Strasson’s grantors, being the owners in fee of the lands conveyed, had a right, by virtue of such ownership, to make the reservation in the deed. In Bose v. Bunn, 21 N. Y. (7 Smith), 275, it was held that a reservation in a grant of land, excepting therefrom grass, herbage, feeding and pasturage, if not valid a.s a reservation or exception, operates as an effectual qualification of the grant, by which the grantee is bound, and creates an easement in the grantor to enter and depasture the land. Applying the doctrine of this case, Stras-son, by accepting the deed with the reservations and exceptions, consented to and acquiesced in the right of White and his assignees to remove the trees and timber at any time before December, 1871, and is therefore estopped from claiming the trees and timber until the expiration of the time fixed in the deed for its removal. contended that the allegation in defendant’s answer that on a certain day Jacob L. Gleason was the owner in fee of the lands mentioned in the complaint, was clearly an allegation of title to realty, and ousted the justice of jurisdiction, upon the defendant giving the bond required by statute. Hogan v. Perry, 6 Wis., 194; Manning v. Smith, 10 Wis., 509. The averment in the answer that Gleason conveyed the timber to White, and that White conveyed it with the same reservations and exceptions to the defendant, was an allegation of a conveyance of such an interest in land as could only be evidence by an instrument in writing. Green v. Armstrong, 1 Denio, 555; McGregor v. Brown, 10 N. Y., 114. Hence the want of jurisdiction in the justice to try the question of title involved. The contract from Gleason to White and through him to defendant, conferred no right, either upon White or defendant, to cut or remove timber after December 4,1870. Pease v. Gibson, 6 Greenl., 81; Boisaubin v. Reed, 2 Keyes, 323 ; 3 Washb. Real Prop., 376. Defendant’s only rights were under the contract, and not under the deed. The reservation in the deed, if in favor of any one, was in favor of White, and he not being a party to the deed, the reservation was void. Hornbech v. West-brook, 9 Johns., 73 ; Borst v. Bmpie, 1 Seld., 38 ; Craig v. Wells, 1 Kern., 315 ; Ives v. Van Auken, 34 Barb., 566; 3 Washb. Real Prop., 371; 4 Kent’s Com. (11th ed.), 550, n. 4, and 549, n. 2. Even if it could be construed into a reservation or exception in favor of Gleason, the grantor in the deed, it would not enure to the defendant, because it was in the nature of a personal covenant or reservation to Gleason, and not to him and his assigns. Hornbeclc v. Westbrook, supra. But the reservation was also void, because there was no person named in it to whom, or in whose favor, it was made. Id. It could have no other effect than as a mere notice to plaintiff of the rights of "White or his assignees under the contract, and could not enlarge such rights. Pollock v. Oronise, 12 How. Pr., 363.