and the sheriff or purchaser may enter on the land for purposes of their cultivation, preservation, or removal, though having no interest in the land. The crops so levied on are thereafter to be considered as in the custody of the law.62

$228. Severance from the land-Separate sale.

Any growth of the soil, even though not produced by annual labor, is personalty after its actual severance from the soil by the owner of the land, as in the case of timber cut by him. Furthermore, by the weight of authority, there may be constructive or legal severance of vegetable products while still growing or standing in the soil. Thus, it has been decided that, by a sale by the landowner of growing trees, they become personalty,63 and the same effect has been

Cas. 171; Adams v. Smith, 1 Breese (Ill.) 283, Finch's Cas. 187; Rogers v. Elliott, 59 N. H. 201, 47 Am. Rep. 192.

61 Whipple v. Foot, 2 Johns. (N. Y.) 418, 3 Am. Dec. 442, Finch's Cas. 402; Stewart v. Doughty, 9 Johns. (N. Y.) 108, Finch's Cas. 407; Parham v. Thompson, 2 J. J. Marsh. (Ky.) 159, Finch's Cas. 214; Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284, Finch's Cas. 204; Craddock v. Riddles barger, 2 Dana (Ky.) 205, Finch's Cas. 215; Penhallow v. Dwight, 7 Mass. 34, Finch's Cas. 216; Pattison's Appeal, 61 Pa. St. 294, 100 Am. Dec. 637; Evans v. Roberts, 5 Barn. & C. 832.

In Iowa it has been held that an execution cannot be levied on the crops as personalty until their maturity. Ellithorpe v. Reidesil, 71 Iowa, 315; and see Heard v. Fairbanks, 5 Metc. (Mass.) 111, 38 Am. Dec. 394. In some states there are statutory provisions as to the state of maturity of the crop for this purpose. See 8 Am. & Eng. Enc. Law (2d Ed.) 309.

62 Peacock v. Purvis, 2 Brod. & B. 362, 1 Gray's Cas. 622.

68 Bacon, Abr. Executors (H) 3; 1 Williams, Ex'rs (9th Ed.) 620; Toller, Law of Ex'rs, 194; Wentworth, Office of Ex'rs (14th Ed.) 148: Stukeley v. Butler, Hobart, 300; Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173; Asher Lumber Co. v. Cornett, 22 Ky. Law Rep. 569, 58 S. W. 438. See Liford's Case, 11 Co. Rep. 46b, 50a. So a chattel mortgage of the crop has been held to effect a severance of crops from the land (First Nat. Bank of Clay Centre v. Beegle, 52 Kan. 709, 39 Am. St. Rep. 365), especially after breach of con

64

given to an exception of the trees on a conveyance of the land. By other decisions, while it is recognized that the ownership of the trees may be vested in a person other than the owner of the soil, they are regarded as still retaining the character of land, so long as they are rooted in the soil.65

66

By grant or exception, an estate of inheritance may be created in trees, either existing or thereafter to exist, and trees may be leased, separately from the land, for a certain period, as is frequently done where the sap is utilized for commercial purposes."7

In the case of the sale of standing trees, or of their exception from a conveyance of the land, their owner has an interest in the soil sufficient for their support and nourishment, in the nature of an easement, and also the right to enter on the land in order to remove them.68

dition (Kimball v. Sattley, 55 Vt. 285, 45 Am. Rep. 614; Bank of Lansingburgh v. Crary, 1 Barb. [N. Y.] 542, 547).

64 Wentworth, Office of Ex'rs (14th Ed.) 148; 1 Williams, Ex'rs, 620, citing Herlakenden's Case, 4 Coke, 63b, which does not, however, sustain the statement. Baker v. Jordan, 3 Ohio St. 438; Sterling v. Baldwin, 42 Vt. 306. See McClintock's Appeal, 71 Pa. St. 365.

Liford's Case, 11 Coke, 46b; White v. Foster, 102 Mass. 375. In Massachusetts, a parol contract for the sale of growing trees, to be cut by the vendee, passes an interest in the trees only when they are severed from the freehold, and hence cannot of itself effect a severance. Douglas v. Shumway, 13 Gray (Mass.) 498; Claflin v. Carpenter, 4 Metc. (Mass.) 580. But if there be a conveyance of the trees by an instrument sufficient to convey real property, the ownership of the trees is separated from that of the land, though the trees still retain the character of land. White v. Foster, 102 Mass. 375.

66 Barrington's Case, 8 Coke, 136b; Liford's Case, 11 Coke, 46b, Cro. Jac. 487; Stanley v. White, 14 East, 338; Clap v. Draper, Mass. 266, Finch's Cas. 176; White v. Foster, 102 Mass. 375.

67 Perkins v. Peterson, 110 Ga. 24; Carter v. Williamson, 106 Ga. 280.

68 Liford's Case, 11 Coke, 46b; White v. Foster, 102 Mass. 375; Walt v. Baldwin, 60 Mich. 622.

(529)

If there is a limitation as to the time within which the owner of the trees may enter to remove them, his rights to the trees, according to some decisions, cease at the end of the period named, and the ownership vests in the owner of the land."9

Formal requisites of sale.

A sale of growing trees, or of other growths of a quasi permanent character, such as grass, or fruit growing on trees (fructus naturales), is, by the weight of authority, prima facie a sale of an interest in land, and consequently it must be in writing under the fourth section of the Statute of Frauds.70 And so it has been held that a mortgage or sale of standing timber must comply with the same requirements as if it were of the land itself." If, however, the title is not to pass until the products have been severed from the soil, as when one contracts to sell lumber to be cut, the contract is for the sale of goods.72

In some jurisdictions the contract is regarded as a sale of chattels, and not of land, if the products are to be immediately removed, that is, are not, before severance, to ac

• Saltonstall v. Little, 90 Pa. St. 422, Finch's Cas. 177; McRae v. Stillwell, 111 Ga. 65. Contra, Irons v. Webb, 41 N. J. Law, 203; Hoit v. Stratton Mills, 54 N. H. 109. See, also, Davis v. Emery, 61 Me. 140, apparently overruling Pease v. Gibson, 6 Me. 81.

70 Burdick, Sales, § 43; Mechem, Sales, §§ 336, 341; Slocum v. Seymour, 36 N. J. Law, 138, 13 Am. Rep. 432, Finch's Cas. 151; Hirth v. Graham, 50 Ohio St. 57, Finch's Cas. 84; Green v. Armstrong, 1 Denio (N. Y.) 550, Finch's Cas. 38; Putney v. Day, 6 N. H. 430, 25 Am. Dec. 470; Buck v. Pickwell, 27 Vt. 158; Stuart v. Pennis, 91 Va. 688; Harrell v. Miller, 35 Miss. 700, 72 Am. Dec. 154; Bowers v. Bowers, 95 Pa. St. 477; Kingsley v. Hulbrook, 45 N. H. 313, 86 Am. Dec. 173; Howe v. Batchelder, 49 N. H. 204.

71 White v. King, 87 Mich. 107; Williams v. Hyde, 98 Mich. 152; White v. Foster, 102 Mass. 375.

72 Smith v. Surman, 9 Barn. & C. 561; Killmore v. Howlett, 48 N. Y. 569, Finch's Cas. 179; Dorris v. King (Tenn.) 54 S. W. 683.

quire further benefits from the soil; and occasionally it is held that, even though the severance is to be made by the purchaser, and, until such severance, the products will receive nourishment from the soil, the sale is to be regarded as one of chattels, if the purchaser obtains title merely to the trees or other growths specifically sold, without any rights in the soil itself.74

Fructus industriales, being at common law regarded as chattels, for most purposes, are so treated in connection with the Statute of Frauds, and they do not constitute an interest in land, within the fourth section.75

229. Border trees.

While a tree growing upon the division line between the lands of two persons is prima facie the property of both as

78 Tiffany, Sales, 46; Marshall v. Green, 1 C. P. Div. 35; Byassee ▼. Reese, 4 Metc. (Ky.) 372, 83 Am. Dec. 481, Finch's Cas. 180; Tilford v. Dotson, 21 Ky. Law Rep. 333, 51 S. W. 583; Upson v. Holmes, 51 Conn. 500. See Sterling v. Baldwin, 42 Vt. 306; McClintock's Appeal, 71 Pa. St. 365.

74 Burdick, Sales, § 44; Purner v. Piercy, 40 Md. 212, Finch's Cas. 160.

In Massachusetts and Maine, the view is taken that the contract, if not sufficient for the conveyance of an interest in land, is prima facie one of a merely executory nature, title not to pass until the products are actually severed, and that consequently it is not within the statute, though a different effect will be given to a contract in proper form to pass an interest in land. White v. Foster, 102 Mass. 375, Finch's Cas. 184; Drake v. Wells, 11 Allen (Mass.) 141, Finch's Cas. 182; Claflin v. Carpenter, 4 Metc. (Ky.) 583; Banton v. Shorey, 77 Me. 48. Consequently, until the timber is actually cut, the purchaser has merely a license to enter in order to cut and remove them, and, if the license is wrongly revoked, he has merely a right of action for breach of contract. Fletcher v. Livingston, 153 Mass. 388.

T5 Benjamin, Sales, § 126; Mechem, Sales, § 342; Evans v. Roberts, 5 Barn. & C. 829; Graff v. Fitch, 58 Ill. 373; Backenstoss v. Stahler's Adm'rs, 33 Pa. St. 251; Marshall v. Ferguson, 23 Cal. 66. Whether fructus industriales are "goods, wares, and merchandises," within

tenants in common," 1,76 this presumption is rebutted by proof that it was planted upon the land of one of such owners," and it belongs to him on whose land it was planted, even though the roots extend into the other's land.78

79

Since branches of a tree planted on the ground of one proprietor constitute a nuisance if they extend over the land of another proprietor, they may be removed by the latter;' but he is not entitled to appropriate such overhanging branches, or the fruit thereon, since these belong to the owner of the land on which the tree is planted.80

If the tree is on the boundary line between two proprietors, neither can remove or destroy the tree as a whole.31

the seventeenth section of the Statute of Frauds, is a doubtful question. See citations in Tiffany, Sales, 48.

T6 2 Leake, 29; Griffin v. Bixby, 12 N. H. 454, 1 Gray's Cas. 551; Skinner v. Wilder, 38 Vt. 115, 88 Am. Dec. 645, Finch's Cas. 154; Dubois v. Beaver, 25 N. Y. 123, Finch's Cas. 168; Musch v. Burkhart, 83, Iowa, 301; Relyea v. Beaver, 34 Barb. (N. Y.) 547. But see Robinson v. Clapp, 65 Conn. 365.

77 Hoffman v. Armstrong, 48 N. Y. 201, 8 Am. Rep. 537, 1 Gray's Cas. 553, Finch's Cas. 97; Skinner v. Wilder, 38 Vt. 115, 88 Am. Dec. 645, Finch's Cas. 154; Holder v. Coates, 1 Moody & M. 112, 1 Gray's Cas. 544.

78 Masters v. Pollie, 2 Rolle, 141, 1 Gray's Cas. 543; Lyman v. Hale, 11 Conn. 177, 1 Gray's Cas. 546; Skinner v. Wilder, 38 Vt. 115, 88 Am. Dec. 645, Finch's Cas. 154; Dubois v. Beaver, 25 N. Y. 123, 82 Am. Dec. 326, Finch's Cas. 168. And see Holder v. Coates, 1 Moody & M. 112, 1 Gray's Cas. 544. Contra, Anon., 2 Rolle, 255; Waterman v. Soper, 1 Ld. Raym. 737, 1 Gray's Cas. 544.

19 Hoffman v. Armstrong, 48 N. Y. 201, Finch's Cas. 97; Grandona v. Lovdal, 70 Cal. 161, 78 Cal. 611, Finch's Cas. 99; Lyman v. Hale, 11 Conn. 177, 1 Gray's Cas. 546; Lemmon v. Webb [1894] 3 Ch. Div. 1. 80 Lyman v. Hale, 11 Conn. 177, 27 Am. Dec. 728, 1 Gray's Cas. 546; Skinner v. Wilder, 38 Vt. 115, 88 Am. Dec. 645, Finch's Cas. 154; Hoffman v. Armstrong, 48 N. Y. 201, 8 Am. Rep. 537, 1 Gray's Cas. 553, Finch's Cas. 97.

81 Griffin v. Bixby, 12 N. H. 454, 1 Gray's Cas. 551; Dubois v. Beav er, 25 N. Y. 123, Finch's Cas. 168; Musch v. Burkhart, 83 Iowa, 301; Relyea v. Beaver, 34 Barb. (N. Y.) 547; Comfort v. Everhardt, 35 Wkly. Notes Cas. (Pa.) 364. In Robinson v. Clapp, 65 Conn. 365,