Citation Numbers: 76 A. 194, 76 N.H. 38
Judges: PEASLEE, J.
Filed Date: 2/7/1911
Status: Precedential
Modified Date: 1/12/2023
The plaintiff claims under one John Lovejoy who, being then the owner of the real estate, on December 20, 1892, by an instrument in writing under seal, sold to him "all the timber, wood, and growth of every description on the Osgood farm." The writing contained the following stipulation: "And I give him until January 1st, 1900, A. D., to get the lot off in." November 11, 1898, Lovejoy sold the farm to the defendant Finerty, "reserving to W. E. Peirce all the wood and timber on the above described premises, with the right to cut and remove the same at any time before January 1, 1900." December 27, 1902, Finerty conveyed the premises to the defendant Paradis, by warranty deed without reservation or reference to any right of Peirce. Paradis was, however, fully informed of the right claimed by Peirce. In the spring of 1899, Peirce learned that Finerty had purchased the lot and tried to obtain the right to keep the timber on the lot by paying $25 a year. Peirce understood he could do this, but Finerty did not so agree. January 29, 1901, Peirce sent Finerty a check for one year's rent for extension of time for removing the timber. Finerty returned the check, but offered to extend the time for $150 per year dating from January 1, 1900, payable for subsequent years in advance. Peirce did not accept this offer and could not after this have reasonably understood that the growth remained by permission or consent of the landowner. Peirce made no reasonable effort to remove the timber, although knowing it remained without right. With reasonable effort he could have removed the property as early as the spring of 1902, and ought to have done so. March 31, 1903, upon notice of Peirce's claim, Paradis informed him that he had a warranty deed of the premises and should not permit Peirce to enter upon or cut the lot until after the dispute was settled. In the winter of 1904, Paradis cut wood and timber on the lot. This bill was filed May 3, 1904.
The substance of the foregoing is that Peirce, the owner of the growth upon the land, did not enter to remove the same within the time limited in the conveyance of the same to him, nor within a reasonable time thereafter, and that after this the owner of the land refused to permit him to enter and cut the growth. Such permission has been granted him by the decree excepted to. The main question argued was whether Peirce now has title to any of *Page 40 the growth thereon. The defendants claim that Peirce's title was forfeited by his failure to enter and remove the same within the time limited in the conveyance or in a reasonable time thereafter, and by his conduct, which is found to have been "willful and defiant" in permitting it to remain wrongfully upon the land of another.
This question has been elaborately argued with great ability and thoroughness. If the question were an open one, the argument for the defendants would be of great assistance and might prevail; but all the grounds now urged are equally opposed to the conclusion in Hoit v. Stratton Mills,
Hoit v. Stratton Mills,
In the present case, the parties did not leave to the judgment of a jury the length of time within which the grantee of the timber should have the right to enter and take it, but expressly limited such entry to January 1, 1900. If, therefore, upon the rule of Hoit v. Stratton Mills, it must be inferred that the parties understood and agreed that Peirce's property in the growth would not be lost by his failure to remove it before January 1, 1900, it follows from the same case that they must have understood and agreed that Peirce after that date would have no right to enter to cut and remove the same. "If the time for removing trees or other things from the vendor's land is expressly fixed in the contract of sale, the *Page 42
purchaser is a trespasser in entering after that time to remove them." Hoit v. Stratton Mills,
But the holding that the value of the trees belonging to one who enters without right and takes them is not an element in the landowner's damages for the entry furnishes no basis for a claim of right to enter and take them. Inability to maintain trespass de bonis will not justify trespass quare clausum. That the owner of personal property wrongfully upon the land of another is a trespasser if he enters to take it without an express or implied license to do so — in other words, has no right to enter — has been repeatedly decided in other cases. Dame v. Dame,
The decree of the court therefore attempts to give to Peirce a right in Paradis' land which he does not possess and for which no legal foundation exists. As the plaintiff has no legal right to enter upon Paradis' land, he cannot recover damages if permission to do so is refused him. Paradis' refusal to permit him to enter and cut and *Page 43
remove the trees would not be a conversion of the trees by Paradis (Town v. Hazen,
It has been suggested that the bill originally asked for relief in another form; but as the request has been abandoned, the questions of what relief the plaintiff might have in equity or whether he might maintain trover upon the facts stated, as well as what course the landowner might pursue to rid his land of the incumbrance [encumbrance] without subjecting himself to liability and what remedy he has for the wrong done him by the plaintiff, are questions not now before the court. The conclusion that the court is without authority to license the plaintiff to trespass upon the defendant's close is fatal to the decree permitting such action.
Exception sustained: decree set aside.
All concurred.
The foregoing opinion was filed May 3, 1910. The defendant Paradis subsequently tendered to the plaintiff the sum found to be the value of the latter's trees, less the amount owed to Paradis for the occupancy of his land, as a full satisfaction of the plaintiff's *Page 44 claim to the trees. The plaintiff refused to accept the tender, and thereupon the defendant filed a motion for an order that the land and the growth thereon be freed from the plaintiff's claim, upon payment of the sum tendered. The plaintiff commenced a replevin suit for the trees claimed by him, and also filed a motion for the appointment of a receiver who should cut the entire growth and divide the proceeds.
The whole matter came on for hearing, and it was found that the plaintiff's claim is a cloud upon the defendant's title, preventing him from obtaining a fair price for his timber or land, and that the defendant's title might prevent the plaintiff from obtaining a fair price for the trees, which he does not desire to sell.
Subject to exceptions, the court pro forma denied both motions and ruled that replevin could not be maintained. It was further found that "the granting or the denial of any of the foregoing motions, or of any relief at law or in equity, so far as they rest on the discretion of the trial court on the facts found, depend on the power of the court in the premises and on what remedies at law or in equity are open to the parties." Transferred from the May term, 1910, of the superior court by Chamberlin, J.
Smith v. Furbish , 68 N.H. 123 ( 1894 )
Baker v. Chase , 55 N.H. 61 ( 1874 )
Kidder v. Flanders , 73 N.H. 345 ( 1905 )
Dyer v. Hartshorn , 73 N.H. 509 ( 1906 )
Burley v. Pike , 62 N.H. 495 ( 1883 )
Carter v. Thurston , 58 N.H. 104 ( 1877 )