Martin v. Gilson , 37 Wis. 360 ( 1875 )

By AN, O. J.

This case is controlled by Rich v. Zeilsdorff, 22 Wis., 544. The court below could not have refused the nonsuit, without disregarding that decision. And we are not disposed to reconsider it. Whatever may have been the original wisdom of the distinction on which that case rests, it is now too late to question the rule.

The appellant’s deed to the respondent Severance does not except the wood from the grant, but only reserves the right to cut it. Trover is, therefore, not the appellant’s remedy. The case is not within Tyson v. McGuineas, 25 Wis., 656, and that class of cases.

By the Court. —The judgment of the court below is affirmed.