16 TREES AND TIMBER AS PROPERTY 



maple, and hornbeam to be timber trees and imposed the 

 penalties of Chapter 48, 6 Geo. Ill, for the destruction of 

 these trees after May 1, 1773. 



Some of the early trespass statutes in the United States 

 named the timber species, but in America the courts have 

 generally been influenced by the view that land should 

 be devoted to its most profitable use, even though prepara- 

 tion for such use required the removal of trees suitable for 

 the manufacture of beams, planks, boards, etc., and a liber- 

 ization of the law against waste has resulted. It appears, 

 however, that this departure from the English rule has 

 been announced principally in cases which have involved 

 the relationship of tenancy. The law has been construed 

 more closely in accord with the English common law 

 rule when controversies have arisen between vendor and 

 purchaser, or in the administration of civil or criminal 

 statutes imposing penalties for the unlawful cutting of 

 trees. l Thus in a Maine case it was held that the construc- 

 tion to be placed upon the word "timber" as used in a con- 

 tract for the sale of standing timber was a matter of law 

 and could not be given to the jury for a determination of 

 the meaning of the word as a matter of fact, and that a 

 contract which gave the purchaser "the right to cut and 

 haul all the timber and bark," on certain land, "down to 

 as small as ten inches at the stump or butt of the trees," 

 did not authorize the cutting and removal of trees fit 

 only for firewood. 2 



In a prosecution for the unlawful cutting of timber in 

 violation of a criminal statute which imposed a penalty 

 ior the cutting and removal of live oak, red cedar and other 

 timber trees from the public lands of the United States 

 (Act of March 2, 1831, Sec. 2461, U. S. R. S.), the Federal 

 district court held that mesquite was not a timber tree 

 such as was contemplated by the statute and that the one 

 who was charged with the cutting of mesquite on public 

 lands of the United States was not liable to the penalties 



1. Com. v. LaBar. 32 Pa. Sup. Ct. 228; Wilson v. State 17 Tex. App. 393; Fogo v. 



Boyle 130 Wis. 154, 109 N. W. 977. 



2. Nash v. Drisco, 51 Me. 417.; Baldwin v. Seeley, 160 Mich. 186, 125 N. W. 37; 

 Lbr. Co. v. Lyman, (Vt.) 94 Atl. 837 (all standing timber means that fit for 



lumber only) See also Lbr. Co. v. Jeraigan, 185 Ala. 125. 64 So. 300 (Local 



custom may limit to pine timber only.) 



