ADVERSE POSSESSION 69 



, The grantee : or lessee 2 of land cannot maintain an 

 action of trespass for the removal of trees which were severed 

 by his grantor or lessor, nor for any property of another 

 which is upon or attached to the land for he acquires neither 

 actual nor constructive possession of such personalty; but 

 the action of quare clausum fregit lies in his favor against 

 the grantor or a third person for an effort to use a sawmill 

 site for a different purpose than that contemplated in the 

 reservation of the same. 3 



Any one owning trees standing upon the land of another 

 can maintain the action of trespass quare clausum fregit for 

 any injury to them, 4 either by a stranger after entry by 

 the purchaser, 5 or by the owner of the land, 6 and a 

 qualified interest in the trees gives sufficient possession for 

 the maintenance of the action. 7 In such cases the title 

 in the trees may arise either from a reservation in a grant 

 of the land, 8 or from a direct grant of the trees. 9 A 

 mere license 10 to enter upon land and cut trees, an agree- 

 ment of sale giving a certain time for removal, n which is 

 effective only as a license, or a mere stipulation by a lessor 

 that the trees shall not be cut 12 does not afford the posses- 

 sion required to support an action of trespass upon realty. 



70. Adverse Possession. It has been held that if 

 land is in the possession of an adverse holder, the land 

 owner cannot, during the time of such adverse holding, 

 maintain an action of trespass de bonis against the adverse 

 holder for the taking of trees and other things attached 

 to the realty; n but in some juridsictions, although action 

 on the case is the only remedy for severance, trespass is 



1. Cohen v. Bryant, (15 S. W. :U7, 23 Ky. L. Kep. 144S. 



2. Brock v. Smith, 14 Ark. 431. 



3. nygert v. Matthews, 11 Wend. (X. Y.) 35. 



4. Gronour v. Daniels, 7 Blaekf. (Ind.) IDS; Haskin v. Record, 32 Vt. 575; But see, 



Whitehouse Cannel Coal Co. v. Wells, 74 S. W. 736, 25 Ky. L. Kep. GO. 



5. Goodrich v. Hathaway, 1 Vt. 4S5, IS Am. Dec. 701. 

 G. Narehood v. Wilhelm, 09 Pa. St. 64. 



7. Bui-lei^h Tp. etc. Corp. v. Hales, 27 U. C. Q. B. 72. 



8. Goodwin v. Hubbard, 47 Me. 595; Phillips v. DcGroat. 2 Lans. (X. Y.) 192; 



Schermorhorn v. Buell, 4 Den. (X. Y.) 422; Robinson v. (iee. 2G X. C. ISO; 

 Grebcr v. Kloekner, 2 I'a. St. 2S9; Irwin v. Patchen, 1G4 Pa. St. 51, 30 All. 430. 



9. Clap v. Draper, 4 Mass. 26G, 3 Am. Dec. 215. 



10. Fletcher v. Livingston, 153 Mass. 388, 26 X. K. 1001. 



11. Gates v. Comstock, 107 Mich. 54G, 65 N. W. 544. 



12. Schermerhorn v. Buell, 4 Den. (X. Y.) 422. 



13. Jarvis v. Edgett, N. Brunsw. 66. 



