Growing trees are part of the realty,, and a sale of them, without a compliance with the terms of the statute of frauds, does not pass the title. — Mitchell v. Billingslea, 17 Ala. 393 ; 3 Kent’s Com. 438, n. a; Ib. 401; Rev. Code, § 1862, subd. 6 ; Riddle v. Brown, 20 Ala. 412.
In actions of ejectment, when the plaintiff makes out a prima facie case for recovery, the defendant must show a paramount legal title, or right to the possession, or he can not prevent a recovery.— You v. Flinn, 34 Ala. 415; Childress v. Monette, at the last term; Mitchell v. Robertson, 15 Ala. 412; 1 Brick. Dig. 627, §§ 34, 35, 40.
The deed under which plaintiff sought to recover in this action, did not convey the entire property from Cook, the original owner. It declares, on its face, that “ this conveyance is made with the following reservation and exception as to the part of said land hereafter specified, which is as follows : The pine trees, of proper size and suitable quality to be sawed into lumber, that are now growing and standing on one hundred acres of said land, are excepted and reserved from this conveyance ” The deed then describes the one hundred acres of said land, in which this right was reserved. The real contestatio litis in this case arises out of an alleged abuse of the timber right above expressed. Cook, the vendor, before he sold and conveyed to Heflin, had, by oral contract, sold said timber to Bingham, received the purehase*575money, and, the bill of exceptions alleges, put him in possession. Sriuch contract is not void under our statute o£ frauds, but it conveys no title.
What was the nature of the possession Bingham could receive and hold under the oral contract as described? Evidently, not the ordinary actual accupation, as absolute owner of the fee. It was but a right to enter and remove the timber, doing no damage, and. committing no trespass, beyond what were necessary to accomplish this end. — Riddle v. Brown, supra ; Pease v. Gibson, 6 Greenl. 81; Hoit v. Stratton Mills, 54 N. H. 109. It would confer no right to erect or occupy any buildings, or other structures thereon. Cook, under the reservations in his deed, had no such right.
But the trees described in the reservation in. the deed were not conveyed to Heflin. These remained the property of Cook, subject to the right and interest he had sold to Bingham. As against Heflin, Cook retained and held the right to enter upon the lands, and, doing no unnecessary damage, to cut and remove the reserved timber therefrom. Heflin could not complain of the exercise of this right, for he had purchased subject to it. Cook, then, having the right to enter and remove the timber, he could sell and convey it, or give a parol license to another, who himself could exercise it, within the limits above expressed, so long as Cook did not interfere, or revoke the license. Such license is the act of Cook, disposing of his own interests and property — not of Heflin. — See Riddle v. Brown, supra.
But, in the absence of a time, expressed in the conveyance, within which this right of entry and removal may be exercised, it must be done within a reasonoble time. — See Hoit v. Stratton Mills, supra. What is a reasonable time, is necessarily dependent on the nature of the service, and is generally a question of fact. It is so in the present case. Still, there are certain rules not to be lost sight of. The use for which the timber is known to be wanted; the custom and rule, if such there be, of felling and removing the timber, as the capacity of the mill may require it, if kept reasonably employed, are among the inquiries which should be made in determining the question of reasonable time. The accident of a failing market, or undue delay in rebuilding the mill after its destruction; these, and similar disturbances, should exert no influence with the jury. But, when the mill was destroyed by fire, a reasonable time was allowed for its reconstruction.
If the owner of such an interest as was reserved by Cook in this case, delay unreasonably to avail himself of it, the right becomes forfeited; and neither he, nor another under *576him, can assert it, without rendering himself liable for a trespass quare clausum fregit; but, in such case, it is said the value of the trees constitutes no part of the damages. — Hoit v. Stratton Mills, supra.
Under the rules declared above, the Circuit Court erred in the first and second charges given, and in the refusal to give the third charge asked. The second plea is imperfect, in failing to aver the diligence with which defendant was removing the timber. It should have averred that he entered upon the service within a reasonable time, and that he was-prosecuting the work of cutting and removing the timber with all due diligence, &c. The demurrer to this plea, in its present form, ought to have been sustained. What we have said will be a sufficient guide for another trial.
Reversed and remanded.