¶1The opinion of the Court was drawn up by
¶2The referee made an alternative award. Judgment is to be entered thereon, according to the construction which the Court give to the reservation in the deed from the plaintiff to John Abbott, under whom the defendants claim title in the land, on which the trees in question were standing. The facts are to be treated as conclusively settled, and the law applicable thereto finally determined, excepting so far as it is presented in the referee’s report.
¶3The reservation is in these words: — “Excepting and reserving the pine trees and the pine timber standing and lying on said lot.”
¶4In Ly ford’s case, 11 Coke, 46, which was, where the party, seized in fee of a farm, leased it to the plaintiff and wife for life, “ except timber trees, oak, &c., growing on the land, of more than twenty years’ growth,” it was .held that the trees remained the property of the lessor. This doctrine was applied, in the case of Howard v. Lincoln, 13 Maine, 122, where the reservation was in these words: — “ Reserving all the pine timber on said land, above the size of ten inches in diameter, twenty feet from the stump.” The cases referred to, are distinguished in no respect from the one before us, touching the point involved in the latter. Exceptions overruled;—
¶5Judgment on the award of the referee.