Gregg v. Birdsall

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.]