McLeran v. Stevens , 16 Vt. 616 ( 1844 )

The opinion of the court was delivered by

Hebard, J.

Two objections are urged by the defendant against the plaintiff’s right of recovery. The first is that the plaintiff has charged for a quantity of timber sold to the defendant, — item No. 28. The other is a charge for 70 pine trees, — item No. 50.

The objection to item No. 28 is based upon the assumed fact, that the plaintiff did not himself own the property for which he claims pay. By the report, it would seem that the objection to a recovery for this item was based upon the ground that the article was not a subject of book charge. But this objection is not urged here. In relation to the ownership, the auditor has found that fact. The auditor has found, that, by an arrangement between the parties, this timber was to be the property of the plaintiff, and that defendant afterwards treated it as the plaintiffs property. His purchasing the timber of the plaintiff, without some explanation that is very conclusive and satisfactory, would estop him from setting up a claim in himself to defeat the plaintiff.

In relation to the other disputed item, the objection is still urged on the ground that the pine trees are not a subject of book charge. But we think that they were proper subjects of deal to be charged on book, and recovered for in this form of action. The trees were sold and delivered; and it is a general rule that the book action will lie when general assumpsit will lie; and it of course would not be insisted that general assumpsit would not lie for these trees. It has been held that book account will not lie for use and occupation of land; but this has no analogy to a charge for the use of land. Trees, for some purposes, while standing, are regarded as a part of the soil; but when severed, they are personal property, and do not pass with the land. Yale v. Seeley et al., 15 Vt. 221. And the sale of these trees was not intended to convey any right or interest in the land. The sale of the trees implied a license to take them away ; but that license might be just as necessary, and as much implied, in the sale of any other species of property, if it should happen to be similarly located.

Judgment affirmed.