delivered the opinion of the Court at the ensuing May term in Lincoln.
In this ease the defendant has pleaded the general issue and also a license. Under the general issue he has not offered any proof of title to the locus in quo, as he might have done by law ; and the trespass alleged having been proved, we need not take any further notice of the first plea. Under the special plea in bar, no proof can avail the defendant but proof of a license. Johnson v. Carter, 16 Mass. 443. The very design of special pleading is to bring the question for trial to a point, and direct the evidence to that point. We need not, therefore, inquire whether there is any legal evidence of a sale, as has been contended in the argument. The only evidence of the license, offered by the defendant, was the written license to Howard ; but that was only a license to enter and cut timber within two years from the date 5 and of course it expired, by its own limitation, on the 7th of .Dec. 1821; and it is admitted that the trespass alleged and proved in this action was committed as late as the year 1826. It cannot therefore justify the trespass, even if a license of this kind was by law assignable, which is by no means admitted as a sound principle. The counsel for the defendant has, however, relied upon another piece of evidence, which was introduced by the plaintiffs, as being proof of the alleged license. It is a clause in the deed from Joseph and Moses Howard abovementioned, dated Oct. 11, 1835, in these words ; “ reserving all the privileges to Jackson Wood, for the timber sold hirn as per James Osgood’s obligation to me in Wood’s possession.”' It is contended that this *84clause amounts to a new license, which justifies the trespass alleged ; but the license pleaded is one from the plaintiffs and not from the Howards. But it is contended farther, that the acceptance of this' •deed from the Howards, containing the above clause, amounts to a license from the plaintiffs themselves,' and thus supports the plea. All this may be ingenious reasoning, but it is in our opinion by no means conclusive. If at the time the deed was made, Jackson Wood had no existing rights under the assignment of the limited license given by Osgood to Howard, then there was nothing reserved by the beforementioned clause, and there was nothing on which it could have .any legal operation; and we are well satisfied that there was not. The license had expired almost four years before. A If the parties to that deed entertained erroneous ideas on the subject of the license, that circumstance cannot affect their legal rights, nor the rights of other persons. The clause might have been inserted by way of caution ; at any rate, it did not produce any change in the existing legal relations of all concerned. But if we were at liberty to consider a sale of the timber as proof of the license pleaded, still our opinion would be that it was- only a conditional sale j that is, a sale of the timber that Howard or his assignee should cut and carry away within the two years mentioned in the license. To admit the construction given by the defendant’s counsel, and consider such a pérmission as a sale of the trees, to be cut and carried away at the good pleasure of the purchaser, and without any reference to the limitation, in point of time, specified in the permit, would be highly injuriousjn its eonsequencesi It would deprive the owner of the land of the privilege of cultivating it and rendering it productive, thus occasioning public inconvenience and injury; and in fact, it would amount to an indefinite permission. . The purchaser, on this' principle, might, by gradually cutting the trees and clearing them away, make room for a succeeding growth, and before he would have removed the trees standing on the land at the time of receiving such a license or sale, others would, grow to a sufficient size to be useful and valuable ; and thus the owner of the land would be-completely deprived of all use of it. Principles leading to such conse-. quences as we have mentioned* cannot receive the sanction of this *85court. We arc all of opinion that the instructions of the judge were correct; and accordingly there must be
Judgment on the verdict.