¶1Nine years after executing a contract for the sale of real estate the vendor thereof sought to cut the soft wood timber thereon, under the following reservation: “Excepting and reserving all the soft wood timber poplar and basswood and evergreen, enter on property to get timber at any time and place.” This was not a reservation of a right over the land sold to enter from time to time and take profits from another. It was rather an exception of timber then in esse, so that *806title thereto never passed. Now, a substantial growth in trees reserved would create new timber as surely as would newly planted trees. It was, therefore, necessary that the vendor should cut and remove within a period only sufficiently long to be reasonably convenient for such work; otherwise he would obtain that which he did not have at the time of the sale, and consequently that which he did not reserve. Such a period was far less than nine years..
¶2I, therefore, favor an affirmance.
¶3Judgment reversed on law and facts and new trial granted, with costs to the appellant to abide the event. The court disapproves of the finding that a reasonable time had elapsed in which the defendant could have removed the timber.