
    Aaron Clark and Wife and Others vs. James Way and Joseph Way.
    
      Easement — Right to use Timber — Trespass Quare Clausum Fregit.
    
    A grant of “ the use of the timber” on the grantor’s land, confers only an incorporeal right to use the timber ; it is no conveyance of the title to the timber itself or the soil on which it grows. ‡ ?
    Trespass quare clausum, fregit will not lie for injury done to an incorporeal right.
    BEFORE WHITNER J., AT EDGEFIELD, SPRING TERM, 1858.
    Tbe report of bis Honor, the presiding Judge, is as follows: “This was an action of trespass guare clausum fregit, brought to recover damages for cutting and hauling away timber trees from a certain parcel of land situate in Edge-field.
    “ John Burgess was seized of a tract of land consisting of two thousand three hundred and sixty-four acres, and by deed executed 12th September, 1840, conveyed one-half the tract to Wiley Glover, absolutely, and in reference to the other half, provided as follows: ‘ and it is agreed between the said parties, that the said Wiley Glover is to have the use of the timber on the other half of the said tract of land, reserving to myself the use of the said timber for my domestic use on said tract of land with the privilege of sawing it at the mill.’
    “John Burgess subsequently conveyed the remaining half to different persons, the title to which, without reservation of timber, had passed to these defendants, and to three hundred and twenty-three acres of it by deed through Mrs. Glover, now Mrs. Clark, one of the plaintiffs. In reference to the. .alleged trespass, it appeared that defendant had a mill, and' bad cut and bauled a good deal of timber from the tract, but the witnesses were unable to locate either the three hundred and twenty-three acres tract, or the trespasses, with any great precision. In fact, it is not remembered that any evidence was furnished of the location of this last tract, though it was 'evidently parcel of that half of the tract out of which the dispute arises.
    
      “ A motion for nonsuit was refused on Circuit, it being .deemed advisable to take the opinion of the jury as tp the fact of any trespass, and the amount to which plaintiffs would be ^entitled. The jury returned a verdict for a very inconsiderable sum.”
    The defendants appealed, and now renewed their motion for a nonsuit upon the grounds:
    1. The deed of conveyance from John B. Burgess to Wiley Glover, of 12th September, 1840, under which alone the plaintiffs claim, transferred no interest or estate whatever in the tract of land described in the declaration, or in the timber or trees thereupon.
    2. If the deed referred to transferred any interest at all to Wiley Glover in the land described in the declaration, or in the timber or trees thereon, such interest amounted to no more than a mere easement in respect of the same, or at the uttermost to a life estate in the same, which terminated at his decease.
    8. The timber and trees upon the land referred to, if effectually transferred by the deed of 12th September, 1840, were divided in property from the freehold, and thereupon became constructively severed from the soil, and in legal contemplation, chattels to all intents and purposes, fipr an injury respecting which the personal representative of Wiley Glover, was alone competent to maintain an action at law.
    
      4. The defendant, James Way, held three hundred and twenty-three acres, parcel of the land described in the declaration, under the deed duly executed of the plaintiff, Elizabeth Clark, without any reservation of the timber or trees thereon, and there was not a tittle of proof that the timber or trees, or any part thereof, cut down and appropriated by the defendants, belonged to the residue of the land not included in the deed last mentioned.
    Oarroll, for appellants.
    
      Moragne, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

To the report accompanied by the deed of conveyance from John Burgess to Wiley Glover, it is necessary for a full understanding of the case, only to add, that, under the partition which was made of Wiley Glover’s lands, the half tract conveyed to him by Burgess, has passed from the plaintiffs, his heirs at law.

The plaintiffs here contend that by Burgess’ deed an interest in the soil of the other half tract was conveyed to Wiley Glover, which interest, yet undividéd, has descended to the plaintiffs, and is of such substantial nature, as will sustain this action of trespass guare clausum fregit, against the defendants, the owners of this other half tract, for cutting timber trees thereon.

If the cutting of defendants was confined to the parcel of three hundred and twenty-three acres, which Mrs. Clark conveyed, all her interest therein has ceased, she and her husband should- not have been amongst the plaintiffs, and for the misjoinder of them, a nonsuit should be ordered. But on this head the evidence was too doubtful for us to venture, after a verdict in favor of the plaintiffs to dismiss the action upon any deduction of fact which we might make.

What interest in the second half tract did the deed convey to Glover? Neither the covenant concerning the timber nor any other part of the deed shows words or circumstances, which indicate the intention of the parties, that all the timber was immediately, or within aDy reasonable term, to be severed from the soil. On the contrary, the word use, with its context, implies, not destruction, but such enjoyment as will leave a remainder; and the reservation shows that so long as the domestic use of the grantor (if not of the half tract kept by him) should require, timber was contemplated as remaining. There would then be no propriety in applying to this case the doctrine that timber trees sold should be regarded as severed, and so shall pass to the executor.()

An interest connected with the land on which the timber was growing, was, we conceive, embraced in the covenant. But of what kind? Was it corporeal — the trees themselves with soil sufficient for nutriment ? or was it incorporeal, the right to cut and remove timber, with the necessary incidents of ingress, and regress ? There are no words transferring the title of the timber, but the terms employed are well adapted to show that a right to use timber growing on another’s land was intended to be conferred.

Such a right in alieno solo( ) like, common of turbary, or the right to take coal or ore from another’s land, is when assignable not properly an easement but a profit a preftdre,( ) which may be acquired by grant or prescription; and a covenant by the owner of the soil that it shall exist, amounts to a grant of it. If the right be not assignable, but a mere personal privilege, the covenant gives an irrevocable license for its exercise.

The plaintiffs have contended that the reservation for the domestic use of Burgess, was void. This reservation (more properly called an exception) is more precise than tbe right conferred upon Grlover; but without any exception the grant containing no words of exclusion, would not have prevented the owner of the soil from exercising thereon the same privilege which he, had granted to another .() The exception serves to give some definiteness to the grant, by raising the implication that the grantee’s right was intended to extend to all of the timber, except what the domestic use of the grantor should require. Without the exception, Grlover could not have complained that others were permitted to use, if he was not obstructed, while the timber lasted. With the exception, Grlover could not say “ this tree is mine and that is yours.” It is not of cutting merely by the owner of the soil that he could have complained, but of cutting which was not within the exception, and which led to a diminution of his profit.

The conclusion which we have attained must result in the nonsuit of the plaintiffs, for the invasion of an incorporeal right cannot be redressed by an action of trespass guare clausum fregit.

Was the interest granted to Grlover a transmissible one? If so, was it a right in gross ? or was it appurtenant to the land conveyed to him, or to the mill said to be on that land ? Was it devisable?

These questions we have not decided; and we mention them lest it might be inferred from the obseryations that have been made on the point which has been found sufficient, that an opinion as to either of them is involved in our decision.

The motion for nonsuit is granted.

O’NEALL, WITHERS, Whither, GIlover, and MUNRO, JJ., concurred. •

Nonsuit granted. 
      
      (a) See cases collected in note Green Ev. 211 2d edition.
     
      
      (b) Oo. Litt. 4.
     
      
      (c) Ebb. 131; 5 Ad. & El. 413 758.
     
      
      
        (a) Co. Lit. 165; Leon. 147 ; 4 East. 469.
     