Brackett v. Goddard , 54 Me. 309 ( 1866 )

AepletoN, C. J.,

This is an action brought to recover the price of certain logs sold by the defendant to the-tiff." The claim is based upon an-alleged failure of • . fendant’s title. '

The defendant, while owning a lot of land in cut down a quantity of hemlock trees thereon. AfteV : +'ie ing the bark therefrom aud hauling it off the land, he conveyed the lot to one Works, by deed of warranty, without any reservation whatever. At .the date of this deed, the hemlock frees in controversy were lying on the lot where they had been cut, with the tops remaining thereon.

The defendant, after his deed of the land to Works, conveyed the hemlocks cut by .him to the plaintiff. Works, the grantee of the defendant, claimed the same by virtue of his deed. The question presented is whether the title to the logs is in the plaintiff or in Works.

Manure made upon a farm is personal property and mayx be seized and sold on execution. Staples v. Emery, 7 Greenl., 301. So, wheat or corn growing is a chattel and'' may be sold on execution. Whipple v. Tool, 2 Johns., 419. Yet it is held that growing crops and manure, lying upon the land, pass to the vendee of the land, if not excepted in the deed. 2 Kent, 340, or by statute, as in this State byR. S., c. 81, § 6, clause 6. Fencing materials on a farm, which have been used as a part of the fences, but are temporarily detached, without any intent of diverting them from their use, as such, are a part of the freehold, and pass by a conveyance of the farm to a purchaser. Goodrich v. Jones, 2 Hill, 142. Hop poles, used necessarily in cultivating hops, which were taken down for the purpose of gathering the crop and piled in the yard, with the intention of being replaced in the season of hop raising, are part of the real estate. Bishop v. Bishop, 1 Kenan, 123.

Timber trees, if blown down, or severed by a stranger pass by a deed of the land. "We think that it cannot admit of a doubt,” remarks Richardson, 0. J., in Kittredge v. Wood, 3 N. H., 503, "that trees felled and left upon the ruit upon trees, or fallen and left under the trees J grew, and stones lying upon the earth, go with the e Riere be no reservation.” t- The hemlock trees werei pon the ground. The tops and branches were*re4 .ig upon them. They were not excepted from the de-j fondant’s deed,' and, beingvin an unmanufactured state, they must, from analogy to the instances-already cited, pass witli the land. Such, too, is the statute of 1867, c. 88, defining.thel ownership of-down timber. It would have been otherwise,¶ had they been cut into logs .or hewed into timber. Cook v. Whitney, 16 Illinois, 481.

The defendant, at the plaintiff’s request, travelled from another State, as a witness, to testify for him in his suit against Works. He claims to have his fees allowed in set-off in this suit. His account in set-off was regularly filed. He is entitled to compensation therefor, which, as claimed, will be travel from his then place of residence, and attend-anee,'in accordance with the fees established by statute.

Of set allowed. — Defendant defaulted, to be heard in damages.

CuttiNG, Kent, Walton, Dickerson and Barrows, JJ., concurred.' Tapley, J., did not concur.