By the Court.
Leonard, J.[After stating the facts as above.] — The solution of the question involved depends upon the construction of the deed: whether the sale of “ all the oak and pine timber” on the land is limited to the term of ten years within which the defendant may enter “ for the purpose of cutting, taking and carrying away.”
The judgment below appears to me to give the true interpretation.
The parties fixed the time within which the vendee or his representatives might enter the land and carry away the timber. After the expiration of the term, every entry upon the land for the purpose of taking timber away, was without the license of the deed. Had there been no term named, the vendee would be entitled to enter and carry away timber for a reasonable time, which would have depended for its limit upon the facts of the case: as to the amount of timber ; the extent of the land; the natural impediments to be overcome in removing it; and other attending circumstances.
But to hold to the continuation of the right to remove the timber from the land, after the term for so doing has been agreed on by the parties, and has expired, is to disregard their agreement, or to make a new one. Every entry upon the land by the defendant, to carry away timber or logs, after the expiration of the term, was an entry without license, and a clear *164trespass; and if he or his servants carried away timber the plaintiffs could he made good for the injury committed only by damages to the extent of the value of the timber removed.
These facts indicate clearly, to my judgment, that it was the intention of the parties to the original agreement to limit the right to take and carry away timber, to the term within which the vendee or his representatives might lawfully enter upon the land; and that the vendee has no title to the timber by cutting logs and leaving them upon the land; but to complete his title he must also remove the logs within the term. If the defendant were responsible; the practice in equity might require that the plaintiffs should be left to their action at law for such damages as they might sustain. In a case like the present, where, by reason of the defendant’s insolvency, the remedy at law would be ineffectual, the plaintiffs are entitled to an injunction. The American authorities cited by Justice Masost, in delivering the opinion at the general term in the court below, fully sustain the conclusion to which he arrived, and must be held to overrule the ancient case of Stukely v. Butler (Hobart [Bost. ed, 1829], p. 300, [original paging 168]), so far as it is in conflict with the cases cited.
It would be inferred from reading that case that the defendant had entered upon the land and carried away the timber without any notice from the landlord that he was a trespasser, or acting without the authority of his contract. This fact, however, is not mentioned as a ground for denying the right of the landlord to recover for the alleged trespass. The facts are otherwise quite analogous to the present case. The common pleas hold in that case, that if the covenant were on the part of the lessee not to take away after the term, it would not extinguish his property in the trees, nor consequently his right to take them; he might plead not guilty in trespass, but should be answerable to an action of covenant for it. The rules of evidence applicable to the two forms of action are different, and the decision of that venerable case may have turned on the form of the action. This might answer as a dry technicality in a court of common law three hundred years *165ago, but is not in harmony with the decision of a case in equity like the present one.
In the case of Warren v. Leland, 2 Barb. 613, Judge Paige, in delivering the opinion in that case, refers to the other American cases cited by Justice Mas os, and says (p. 623): "I am inclined to the opinion that those decisions were correctly made, notwithstanding the case of Stukely v. Butler.”
The defendant here cut down more timber than he could remove within his term. He knew that his right to enter and carry away expired at a particular day. . He attempted to overreach the letter of his covenant, and must be allowed to bear his loss without remedy.
The judgment should be affirmed, with costs.
A majority of the judges concurred.
Judgment affirmed, with costs.