Schermerhorn v. Buell
New York Supreme Court
Error to Genesee C. P. Schermerhom sued Buell in the court below, and declared in trespass. One count was for cutting and carrying away trees; and one count was simply for taking and carrying away.
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Error to Genesee C. P. Schermerhom sued Buell in the court below, and declared in trespass. One count was for cutting and carrying away trees; and one count was simply for taking and carrying away. The case was as follows: On the 24th of May, 1837, the plaintiff by a lease, not under seal, demised to the defendant a lot of land containing 96 acres, for the term of six years commencing on the 1st of November following, for the yearly rent of $160, which rent the defendant agreed to pay, with all taxes, &c. The lease contained a clause as follows : “ AH of the timber in the southeast corner, of…
1Opinion of the Court
By the Court, Bronson, Ch. J.
When the lessor excepts the trees on the demised premises, they do not pass with the land, and he may enter, cut and carry them away; and he can maintain trespass against the tenant, if he cuts them. (1 Saund. 322, n. 5; 1 Ld. Raym. 551, 552; Cro. Eliz. 17, 18; Vin. Abr. Trees, (A.) pl. 6; Bac. Abr. Trespass, (C.) 3; Bullen v. Denning, 5 Barn. & Cress. 842.) But in this case, 1 am not able to see that the trees were excepted. When there is any doubt about the meaning of an exception in a lease, the words, being considered those of the lessor, are construed…
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