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, 54 N.H. 109. It was there held that unless the sale of standing trees was made conditional upon their removal within a limited time, the property in the trees was not forfeited by the failure to remove them, and that a mere stipulation as to the time of removal did not render the deed conditional[.] This decision was made in 1873. The reasoning of the case has been frequently referred to and the decision upon the precise point followed in recent cases. Stackpole v. Railroad, 62 N.H. 493; Smith v. Furvish, 68 N.H. 123, 130; Kidder v. Flanders, 73 N.H. 345; Dyer v. Hartshorn, 73 N.H. 509. Whether the result was reached by a correct application of the reasoning of the case or not, the rule of the case has been too long settled and followed to be now disturbed. It is a rule of property which must be taken to have been within the contemplation of the parties. If it had been intended that Peirce should lose the property conveyed to him in 1892, by failure to remove it before January 1, 1900, a provision to that effect, in the light of the well settled and understood law upon the subject, would have been inserted in the conveyance. The absence of such a stipulation conclusively establishes that no such purpose was entertained. As the trees were not forfeited by the failure to remove them, the plaintiff's state of mind during his failure to act is immaterial. His property right rests, not upon considerations of equity and good conscience, but upon his legal right under an absolute conveyance and the absence of anything in the nature of the subject-matter which would make conditional a conveyance of trees, which would be an absolute conveyance of other property. Hoit v. Stratton Mills, 54 N.H. 109, 116. The validity of this conclusion is not now an open question. The growth on the defendant's land on January 1, 1900, and still remaining there, is the plaintiff's property.
Hoit v. Stratton Mills, 54 N.H. 109, was trespass quare *Page 41 clausum et de bonis. The conveyance of the timber in that case contained an agreement that the grantor, Very, would deliver the timber at a certain place not on the land, on or before April 1, 1866, and that if the grantor failed to so deliver the timber, the grantee, Kingsley, might enter the premises and take the timber. Very did not deliver the timber, and in 1871 the defendants, claiming under the original conveyance, entered, cut some of the timber, and carried it away. Doe, J., says: "Very, the former owner of the land, having failed to deliver the timber April 1, 1866 (the time agreed upon), Kingsley, his heirs and assigns, had a reasonable time after that date in which to take it. . . . It would be unreasonable to infer that the parties understood that Kingsley, his heirs and assigns, would have a right to leave the timber incumbering [encumbering] the land forever, or to enter and remove it whenever they pleased at any time or times in the distant future. The reasonable inference is, that the parties understood and agreed that the timber not delivered by Very on or before the first day of April, 1866, might rightfully remain on the land a reasonable time after that date, and that Kingsley, his heirs and assigns, might rightfully enter within that reasonable time to remove it. The length of the reasonable time is a question of fact for the jury. If the defendants entered after the expiration of the reasonable time, they are liable for the entry." The case was transferred upon a disagreement of the jury, and the ruling was that the plaintiff could maintain trespass quare clausum if the fact as to the expiration of a reasonable time were found by the jury in his favor. Subsequently, after a trial, the case was again before the court.54 N.H. 452. The right of the plaintiff to maintain trespass quare clausum was reaffirmed and his damages limited to such as were recoverable in that form of action.
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, 54 N.H. 109, 112. The further conclusion that the plaintiff in that case could not recover for the value of the trees, since his title thereto was not conditioned upon their removal within a reasonable time, rests upon the rule that "an unconditional conveyance of growing trees without the land instantaneously severs them from the land, in contemplation of law, and transforms them into personal property" (Kingsley v. Holbrook, 45 N.H. 313), and the decision in Plumer v. Prescott, 43 N.H. 277, that if the grantee of trees removes after the time limited trees actually severed within the time, the landowner cannot recover the value of the trees.
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, 38 N.H. 429, 432; Baker v. Chase, 55 N.H. 61; Stackpole v. Railroad, 62 N.H. 493. In Dyer v. Hartshorn, 73 N.H. 509, the most recent case relied upon by the plaintiff, the right to maintain trespass quare clausum et de bonis is denied upon the ground that the plaintiff was neither "the owner of the land or the trees when the alleged trespass was committed." This plainly implies, in accordance with all the authorities, that if the plaintiff had been the owner of the land the entry complained of would have been wrongful. There is a right of recaption or reclamation of personal property upon another's land without fault of the owner. In such cases, under certain circumstances the owner of personal property has a right to enter to retake his property and is not a trespasser if he does so. Dame v. Dame, 38 N.H. 429; Carter v. Thurston, 58 N.H. 104, 107; 3 Bl. Com. *40. But the right does not extend to cases where the situation is created by the fault or wrong of such owner.
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, 51 N.H. 596; Stackpole v. Railroad, 62 N.H. 493), though the assertion of a title to all the growth and the sale of it by Finerty to Paradis might be. Burley v. Pike, 62 N.H. 495; Town v. Hazen, supra. The right of exclusive possession is one element of the property right in real estate. For public purposes, upon the payment of damages the state may authorize the taking from the owner of some or all of the elements of real estate ownership; but as the whole cannot be transferred from one individual to another for a private purpose merely because it seems more equitable that one should own the land and the other its value, no part of the right can be so transferred. The court might as well transfer the entire title to the land to the plaintiff as to give him the right to occupy it for eighteen months without permission from the owner. As Peirce has no right to enter the land, the court cannot give him one. The landowner may think the diminution of the injury to his property by the removal of the trees under his direction may be more advantageous to him than the judgment of a jury for compensation for the damage done by the removal by one not the owner. He may prefer to remove first, now or at some future time, the growth belonging to him. Whatever his reasons may be, no ground appears upon which his land ownership right can be legally interfered with for the benefit of a wrongdoer.
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.