
    * Joseph Clap versus Ira Draper.
    A grant to one, his heirs and assigns, of all the trees and timber standing and growing in a close forever, with free liberty to cut and carry tliem away at pleasure, conveys'an estate of inheritance in the trees and timber; and the grantee may maintain trespass quare clausum fregit against the owner of the soil for cutting down the trees.
    Trespass for breaking and entering the plaintiff’s close in Dorchester, in the county of Norfolk, and cutting and carrying away five hundred trees of the value of five hundred dollars.
    Upon not guilty pleaded, the cause was tried at Dedham, and a special verdict found, from which it appears that on the 18th of May, 1763, Joseph Humfrey was seised of the close in fee, and by a deed then executed conveyed the same to one Stephen Fowler in fee ; that on the same day, Fowler reconveyed to Humfrey, his heirs and assigns, all the trees and timber standing and growing on said land forever, with free liberty for them to cut and carry away said trees and timber, at all times, at their pleasure forever; that the plaintiff holds all the right which was conveyed by Fowler to Humfrey, and the defendant holds all the estate that was Fotvler’s ; that in the deed executed by Fowler no consideration is expressed ; that the defendant cut and carried away the trees mentioned in the declaration, some of which were standing at the date of the deeds aforesaid ; that from the said date to the present time, the plaintiff, and all those under whom he claims, have taken and carried away the trees at their pleasure; and that, during all that time, the defendant, and all those under whom he.claims, have had the herbage And if, upon the facts found, the Court should be of opinion that the defendant is guilty of the trespass charged, or of any part of it, the jury find him guilty accordingly, and assess the damages; otherwise they find him not, guilty.
    The question upon the plaintiff’s right to recover upon this verdict was argued at the last September term at Dedham, by L. Richardson for the plaintiff, and J. Richardson for the defendant.
    
      L. Richardson,
    
    to show that the plaintiff had an estate of inheritance in the timber and trees growing on the land, in virtue of the deeds produced at the trial, and that he was well entitled to this form of action, cited Richard Lifford’s case, 11 Co. 49.— [ * 267 ] Sir Francis Barrington’s case, 11 Co. 27]. — Ives’s * case, 5 Co. 11.—3 Dyer’s Rep. 285, — 2 Brownl. 289, 322, 328. — Bracton, 222.— Co. Lit. 4. — Rolle’s Rep. 96, 99, 137.
    
      J. Richardson
    
    contended, 1. That the grant of the trees amounted only to a license, and cited 3 East’s Rep. 115, Spyve vs. Topham. 2. That the grant was confined to the trees then growing, and did not extend to such as should afterwards spring up. Whistler vs. Paslow, Cro.Jac.481.—Pincomb vs. Thomas, Cro. Jac. 524. 3. That the plaintiff cannot have this action of trespass guare clausum, he not being owner of the close. The breaking the close being the principal or gist of this action of trespass, it lies only for the owner of the soil, and not for him who has a right to some accidental profits to be derived from it. If the plaintiff may maintain this action, it will follow that a stranger breaking this close will be subject to several actions, to be brought by the present plaintiff and defendant respectively.
   The cause was continued nisi for advisement, and now, at this term, the opinion of the Court was delivered by

Parsons, C. J.

[After stating the action and reciting the substance of the special verdict.] The two deeds in this case, executed on the same day, the latter referring to the former, and relating to the same transaction, must be considered as intended to effect the same contract, and must be construed together. The result of this joint construction is, that the grantor conveyed the close to the grantee in fee, reserving to himself an inheritance in the trees and timber, not only then growing, but which might thereafter be growing, in the close. This is the natural effect of the grantee’s agree ment that the grantor and his heirs should have all the trees and timber standing and growing on the close forever, and not merely those then standing, or which should be standing within a limited time; and of a perpetual license to cut and carry them away. The plaintiff having all the estate in the trees, timber and close, which the grantor had after the execution of these two deeds, he has an inheritance in the trees and timber, with an exclusive interest in the soil so far only as it may be necessary for the support and nourishment of the trees. 8 Co. 271.— Cro. Jac. 487. — 2 Roll. Abr. 455, l. 20.—11 Co. 46.

* For cutting down and carrying away the trees, tres- [ * 268 ] pass undoubtedly lies. 2 Leon. 213, Hitchcock vs. Harvey.

But the defendant insisted that the plaintiff could not maintain trespass for breaking the close. Upon looking into the cases, we are satisfied that the plaintiff, having an inheritance in the trees, and an exclusive right in the soil of the close, as far as was necessary for their support and nourishment, may maintain trespass for breaking the close, as well as for cutting. It appears to be a principle of law well settled, that where a man has a separate interest in the soil for a particular use, although the right of the soil is not in him, if he be injured in the enjoyment of his particular use of the soil, he may maintain trespass quare clausum fregit; but not if his interest is in common with others. Thus this action lies for him who has the herbage, although not a right to the soil. Moor. 355, Hoe vs. Taylor. Co. Lit, 4, b. Dalison, 47.—Moor. 302. — Cro. Eliz. 421. But if he is entitled to a portion of the herbage for a particular part of the year, he cannot maintain this action, but may maintain an action of trespass for spoiling his grass. 2 Leon. 213. Vide also Yelv. 187, Dewclas & Al. vs. Kendall & Al.

The latest case on this subject is the case of Wilson vs. Mackreth, 3 Burr. 1824. The plaintiff had an exclusive right to take the turf in a several parcel of ground, in which, and in other parcels adjoin ing, he and the other tenants of the manor had common of pasture, the right of the soil being in the lord of the manor. The defendant dug and carried away peats in the place in question, and it was held that the plaintiff might maintain trespass quare clausum fregit against him. And the difference there taken is between exclusive rights and rights in common ; that if the plaintiff had only a common of turbary, trespass would not lie.

Upon the authority of this case, as well as the reasonableness of the principle, the plaintiff, in consequence of his inheritance in the trees, had such an interest in, although not the right of soil, that he may maintain trespass quare clausum fregit in this case, and must have judgment on the special verdict.  