136 CONTRACTS REGARDING GROWING TIMBER 



title at once. l It is then only necessary to determine 

 which trees were actually merchantable and parol evidence 

 is admissible in the making of this determination. 



105. Fallen Trees Sometimes Pass with Land. In 



conformity with the rule in the law of fixtures that, where a 

 thing has been so annexed to land as to become in law a part 

 thereof, the accidental severance of the same does not change 

 its legal character from realty to personalty, a Pennsylvania 

 court held (in 1881) that trees severed from the soil by 

 the elements do not become personalty until they are cut 

 into logs or the owner of the land does some act which in- 

 dicates an intention on his part to treat them as person- 

 alty. 2 However, an English case, decided subsequently (in 

 1885), 3 held that a tree severed from the soil by a storm 

 was personalty. The English rule appears to be that if a 

 tree still remains so connected with the soil that some new 

 force would be necessary to effect a separation, it is still 

 attached and therefore realty; but if the connection of all 

 important roots with the soil is severed, the tree becomes 

 personalty even though a part of the roots remain covered 

 with earth or some small roots or filaments are unbroken. 4 

 In a Maine case it was held that hemlock timber trees 

 which had been cut down by the owner of the land for the 

 purpose of removing the bark, but from which the tops had 

 not been removed, passed with a conveyance of the land 

 even though it had been the intention of the owner to cut off 

 the tops and haul the trees off as logs to be sawed into 1 um- 

 ber during the ensuing winter. 5 The court expressed the 

 opinion that the trees would have been personalty if they 

 had been cut into logs or hewed into timber before the time 

 of the conveyance of the land. This decision appears to 

 have rested upon analogous early decisions regarding wind 

 thrown trees or those holding that trees severed and im- 



1. Lee Lbr. Co. v. Hotard, 122 La. 850, 48 So. 286. 



Haskell v. Ayres, 35 Mich. 89; Hays v. McLin, 115 Ky. 39; Dorris v. King et al. 

 (Ch. Div. Tenn. 1899) 54 S. W. 683; See Ayer & Lord Tie Co. v. Davenport, 26 

 Ky. L. Rep. 115. 



2. Leidy v. Proctor, 97 Pa. St. 486. Altemose v. Huf smith 45 Pa. 121. 



3. Re Ainslie, 30 Ch. D. 485 (overruling 28 Ch. 89, 92, D. (Dec. 1884). \ 



4. EweJl's Fixtures, 2d Ed., Callaghan & Co., Chicago, 1905, p. 332. 



5. Brackett v. Goddard, 54 Me. 309 (1866) ; See Kittredge v. Woods, 3 N. H. 503 and 



2 Kent's Comm. 346. Maine Rev. St. 1903, p. 657 Sec. 1. 



