TREES SUBJECT TO TAXATION AND EXECUTION 23 



their immovability, even after sale, until they are cut 

 down. ] 



28. Trees as Subject to Taxation and Execution. 



Trees constructively severed by a timber lease giving merely 

 the right to cut and carry away the trees have been held 

 to be subject to execution. 2 But a mere license to enter 

 and cut timber on another's land has been held to par- 

 take of the nature of a personal trust and not to be subject 

 to levy and sale under execution. 3 



Ordinarily trees and their fruits cannot be seized and 

 sold as chattels until severed from the soil. 4 Timber 

 felled after a judgment lien attached to land passes with 

 the land at an execution sale. 5 Easements and other 

 special rights and interests in land are taxable only when 

 made so by statute. 6 Thus it has been held that a de- 

 mise giving a lessee the right to enter, box trees, and make 

 turpentine, did not create a taxable interest in the land, 7 

 even under a very inclusive statute regarding taxation; 8 

 and the same was held as to a right to cut timber and erect 

 buildings. 9 However, under a Minnesota statute a right 

 to cut trees from non-taxable railroad lands was consid- 

 ered a taxable interest. 10 Prior to physical severance 

 from the soil trees are ordinarily taxable as realty; 11 but 

 if through a valid sale trees have been constructively sev- 

 ered, they may be assessed to the true owner while still 



1. Morgan v. O'Bannon, 125 La. 367, 51 So. 293. 



2. Caldwell v. Fifield, 24 N. J. L. 150; Cf. Sparrow v. Pond, 49 Minn. 412, 52 N. W. 



36, 32 Am. St. Rep. 571, 16 L. R. A. 103, holding blackberries on bushes not 

 subject to execution as personalty; See 17 Cyc. 942, Note 90, 1291, Note 41. 



3. Potter v. Everett, 40 Mo. App. 152; Cf. Adams v. Smith, 1 Breese (111.) 283; 



Rogers v. Elliott, 59 N. H. 201, 47 Am. Rep. 192. 



4. State v. Gemmill, 1 Houst. (Del. 1855) 9, 16; Osborne & Rabe 67 111. 108 (1873, 



Nursery trees); Bank of Lansingburgh v. Crary, 1 Barb. (N. Y.) 542 (1847). 

 But see Battennan v. Albright, 122 N. Y. 484 (1890 nursery trees); State v. 

 Fowler, 88 Md. 601 (1898) and Purner v. Piercy, 40 Md. 212. Cf. Late v. Mc- 

 Lean. 2 Nova S. Dec. 69 (1870). 



5. Frank v. Magee, 49 La. Ann. 1250, 22 So. 739; Leidy v. Proctor, 97 Pa. St. 486; 



Duff v. Bindley, 16 Fed. 178. 



6. DeWitt v. Hays, 2 Cal. 463, 56 Am. Dec. 352; Boreel v. New York, 2 Sandf. 



(N. Y.) 552; Willis v. Com., 97 Va. 667, 34 S. E. 460. 



7. Hancock v. Imperial Naval Stores Co. 93 Miss. 822, 47 So. 177. 



8. Ashe Carson Co. v. State, 138 Ala. 108, 35 So. 38. 



9. Clove Springs Iron Works v. Cone, 56 Vt. 603. 



10. Pine County v. Toyer, 56 Minn. 288, 57 N. W. 796. 



11. Wilson v. Cass County, 69 Iowa 147, 28 N. W. 483: Williams v. Triche, 107 La. 



92, 31 So. 926; Palfrey v. Connely, 106 La. 699, 31 So. 148; Fletcher v. Alcona 

 Tp., 72 Mich. 18, 40 N. W. 36. 

 Cf. Cottle v. Spitzer, 65 Cal. 456 (1884.) 



