¶1delivered the opinion of the court.
¶2The principal question |n this case i,s, whether a contract for the sale of a certain number of trees, not severed from the soil at the time, but made in prospect of their immediate separation, and removal *341from the soil by the vendee, is a contract within the statute of frauds, which requires a contract for the sale of lands, tenements or hereditaments, or the making any lease thereof for a longer term than one year, to be in writing and signed.by the party to be charged therewith.
¶3The parties in making such a contract do not in-, tend to embrace the land or any interest in the land, nor does such a contract confer any right to the land, except the mere right to enter upon it, and cut and carry away the growing trees that have been sold. It is, in contemplation of the parties, a sale of the timber as chattels, and cannot be regarded as a sale of the land, or any interest therein, and is not therefore embraced by the statute of frauds. (Chitty on Contracts, 301; Claffin v. Carpenter, 4 Metcalfe, 580; Erskine v. Plummer, 7 Greenl. 477.)
¶4A distinction seems to exist between contracts conferring an exclusive right to the land for a time, for the purpose of making a profit of the growing surface, and those for trees, or other things growing upon the land, in prospect of their immediate separation. The latter class of contracts are not considered as within the statute of frauds, where timber or other produce of the land, or any other thing annexed to the freehold, is specifically sold, whether it is to be severed from the soil by the vendor, or by the vendee under a special license to enter for that purpose. (1 Greenleaf on Evidence, 309, and the cases referred to.)
¶5The sale of the growing timber in this case was therefore valid, and the vendee had a right to sever and remove from the land of the vendor the eighty trees which he had purchased. To the extent of the injury he sustained by the act of the vendor in suing out an injunction and restraining order, and thereby preventing him from removing those trees that he had cut down, and from severing the remainder, he had a right to recover damages in this suit, which was brought upon the bond executed by the vendor, when he obtained the injunction, and contained the usual *342condition. The circuit court having given a different exposition of the law of the case, the judgment is erroneous.
¶6Wherefore the judgment is reversed, and cause remanded for a new trial and further proceedings consistent with this opinion.