
    Gregg & Sage vs. Birdsall.
    By the terms of an exception and reservation in a conveyance of land, “ all the pine and hemlock timber suitable for sawing, and all necessary facilities for removing the same, with the right of flowing the lands now (then) covered by the mill pond, while necessary for manufacturing the timber on the adjacent lands,” were excepted and reserved to the grantor. Held that such exception and 'reservation, being absolute in terms, and unlimited as to the period when the act of removal and manufacture should be exercised, if any timé could be fixed by the act of the grantee, or of a judicial tribunal, within which the power of removal and manufacture was to be exercised, it should be in the future, upon notice to be given to the grantor, to exercise his. power of removal within some time to be named; so as to enable him to obtain the benefit of his reservation.
    
      Held, also, that he could not be deprived of his property or reserved rights by an allegation that a reasonaile time for removal and manufacture had already elapsed, and therefore his rights were extinguished.
    And that so long as the grantor had timber, which he might remove, he had also the right to overflow the lands for such reasonable time as might be necessary for the manufacture of the timber, after removal; which right ' was not extinguished by delay in its exercise.
    THIS was an action in equity, brought to restrain the defendant from the further exercise of certain exceptions and reservations contained in a deed from the defendant to one Heminover, under whom the plaintiffs claim; for a construction of those exceptions and reservations; and for a decree declaring them canceled and extinguished.
    The complaint sets forth that the. defendant, in 1856, conveyed to one Heminover a tract of land, excepting and reserving “ all the pine and hemlock suitable for sawing,- and all necessary facilities for removing the same, with the right of flowing the lands now covered by the mill pond, while necessary for manufacturing the timber "on the adjacent lands.”
    The plaintiffs are the grantees of Heminover, and they set forth that prior to the commencement of this action, the defendant had cut and removed from said premises all the pine and hemlock timber thereon,- reserved by him in his said deed, that was suitable for sawing at the time of making such reservation. They further allege that he has cut timber not suitable for sawing, and claims the growth of the timber, and the right to overflow the premises covered by the mill pond, until the pine and hemlock are manufactured. Also that the term “adjacent lands” means only those lands conveyed by Heminover; and that previous to the commencement of the suit they forbade his cutting any more timber on the premises. They aver that he has no further rights there, to cut timber or to overflow, and ask for a judgment prohibiting him from cutting any more, and from overflowing on the premises, and to have the reservation canceled. Ho damages were claimed, and the action was, therefore, for the specific relief demanded.
    The defendant, by his answer, denied all the equities of the complaint, also the plaintiffs’ title, and most of the other allegations, except the execution of a conveyance to Heminover, which was admitted; and claimed specifically that there was at the commencement of the suit, and is, a large quantity of hemlock and pine timber on the premises, which was reserved in the deed. He also averred that the term. “ adjacent lands,” used in the deed,, was understood by the parties, and meant those lands owned by him, the grantor, and conveyed to Heminover, but alleged that the term “ adjacent lands ” was used in its ordinary sense.
    The plaintiffs therefore claimed the interposition of the equity powers of the court:
    1. To have the alleged cloud upon the title removed.
    2. To have the defendant restrained from» cutting and removing any further timber from the premises.
    3. To have the defendant restrained from overflowing the lands in question, in the process of manufacturing the timber cut and removed from this and adjacent lands.
    4. To have a construction of the words of reservation.
    The referee to whom the case was referred for hearing and decision, among other things, decided that the exceptions and reservations in question were made; that the defendant had been in the full enjoyment of the premises and reservations, and might, with proper and reasonable effort and industry, have availed himself of all the benefits and advantages secured, or intended to be secured, by the reservations. He further found that there was still a large number of pine and hemlock trees standing on the premises, sufficient to make from 40,000 to 50,000 feet of lumber, which was suitable for sawing at the time of the conveyance from the defendant to Heminover; and that he had also cut and removed a large quantity of pine and hemlock timber not suitable for sawing, at the time of such conveyance; and he adjudged," among other things, that all the exceptions and reservations should be removed, canceled and terminated, except the right to cut and remove such pine and hemlock timber still remaining on the premises, as was suitable for sawing at the time the deed was executed; and directed a perpetual injunction against overflowing any part of the premises by the waters of the mill pond, and the removal of the water from said lands; and that the plaintiffs recover of the defendant their costs.
    The defendant duly excepted, and judgment having been perfected, appealed to this court.
    
      A. J. Parker, for the appellant.
    
      W. J. Gros, for the respondent.
   By the Court, Hogeboom, J.

By the judgment pronounced in this case, taken in connection with the referee’s report, it appears that at the commencement of the action there was still upon the premises in question a large number of pine and hemlock trees suitable for sawing at the time of the conveyance to Heminover, and which, under the exception and reservation in the conveyance to him, belonged to the defendant. By the terms of this exception, and reservation “ all the pine and hemlock timber suitable for sawing, and all necessary facilities for removing the same, with the right of flowing the lands now (then) covered by the mill pond, while necessary for manufacturing the timber on the adjacent lands,” were excepted and reserved to the defendant. This exception and reservation was absolute in terms, and unlimited as to the period when the act of removal and manufacture should be exercised. I do not see why the property in the excepted timber would not forever remain in the defendant, and those who derived title through him, and if any time could be fixed by the act of the adverse party, or of a judicial tribunal, within which the power of removal and manufacture was to be exercised, (which I think doubtful,) it should be in the future. ¡Notice should be given to the defendant to exercise his power of removal within some time to. be named, so as to enable him to obtain the benefit of his reservation; and he should not be deprived of his property or reserved rights by an allegation that a reasonable time for removal and manufacture had already elapsed, and therefore his rights were extinguished, and this without notice that the plaintiffs wished him to remove his property from their premises. The only notice they gave him was one, in effect, that his rights were already terminated, and that he must remove no more timber. The referee has decided that while there was still timber on the land which the defendant owned and had a right to remove, he had no right to manufacture it by overflowing the lands covered by the adjacent mill pond, for ever so short a time after such removal. The right to manufacture (and overflow for such- purpose) was coextensive with the right to remove; and it seems to me clear that so long as the defendant has timber, which he may remove, he has also the right to overflow the lands in question, for such reasonable time as may be necessary for such manufacture, after such removal. This right the referee has cut off' by declaring it canceled and terminated, and forbidding the further exercise; and I think improperly. This right is not extinguished by delay in its exercise. The parties have not seen fit to impose any limitation of time, in the conveyance, in regard to the exercise or enjoyment of these privileges; and if any limitation can now be interposed, I think it cannot, in equity, be done without allowing a reasonable time, in the future, for their exercise.

[Albany General Term,

September 15, 1866.

As this is decisive of the case, and necessarily leads to a reversal of the judgment, it is superfluous to consider any of the other questions in the case. •

The judgment must be reversed, and a new trial granted, with costs to abide the event.

Miller, Ingalls and Hogehoom, Justices.]  