Hill v. Cutting , 113 Mass. 107 ( 1873 )

Ames, J.

The questions raised in this case are substantially disposed of by the decision in Hill v. Hill, ante, 103. It was there held that the extent of John Hill, Jr.’s right under the attempted reservation in his deed was to cut and remove the trees within a reasonable time; and that, as he had failed to do so, his right ceased, and the trees became the property of this plaintiff, who was the owner of the soil. The written notice to John Hill, Jr., forbidding him to enter upon the premises for the purpose of cutting the wood and removing the same, was an effectual revocation of his license and put an end to his right. As he could give no greater title than he had, his subsequent bill of sale of the same property to -this defendant was a mere nullity, so far as concerns the plaintiff; and the entry of Cutting upon the land, being wholly unauthorized, was a trespass for which the plaintiff can maintain his action.

In Hill v. Cutting, 107 Mass. 596, which was an action for the conversion of certain lumber on the same premises, and which was submitted to the court upon an agreed statement of facts, it was held that the so called reservation had the effect of a parol transfer and license to enter and cut the wood, which license did not appear by the agreed statement to have been countermanded. In the case now before us, this important element of an express previous countermand distinctly appears.

The judgment in the former action is no bar to this, because the cause of action was not the same, and although the right or license to enter upon the land was involved in that case, it was incidentally only, and as a fact bearing upon the question of title to the wood alleged to have been wrongfully appropriated by the defendant. It was not essential to the judgment in point of pleading, and was not in fact tried as a part of the issues in the case. The agreed statement of facts was an admission for the purposes of that case only, and does not create an estoppel to be set up in another.

The recovery in this case is for a wrongful entry upon the land. Personal property removed at the same time may be recovered for, as an aggravation of the trespass. But if the plaintiff had already recovered in the former action for the wood taken away at the time of such entry, he could not have damages therefor again in this action. The parties have, however, agreed as to the amount of damages, and no question arises upon that point.

Judgment for the plaintiff.