Timber

Generically, only such trees as are used in building ships or dwellings. When the trunk of a tree is severed from the root and felled to the earth it becomes " tim- ' Drew V Peer, 93 Pa. 242 (1880); Mc Crea v. Marsh, 12 Gray, 213 (1858) — "a license, legally revocable." " Pearce v. Spalding, 12 Mo. Ap. 141 (1882). ■ Reeoe v. Miller. S Q. B. D. 630 (1883), Grove, J. * The Genesee Chief, 12 How. 454-55, 457 (1851), Taney, C. J.; The Hine, 4 Wall. 566 (1866). » Robinson v. Sutter, 8 F. R. 830 (1881). ber" or "lumber" according to the use to which it can be applied. i The body, stem or trunk of a tree, or the larger pieces or sticks of wood which enter the frame-work of a building or other structure, excluding the plank, boards, shingles or lath used to complete the structure.^ In a contract for cutting and removing certain kinds of trees, held to refer to trees standing or felled and lying in their natural condition upon the ground, andr not to include "railroad ties" made out of the trees. 3 The particular meaning depends upon the connection in which the word is used or the calling of the person by whom it is tised.** In the act of Congress of March 2, 1831 (R. S, § 2461), making it a crime to cut timber on lands of the United States for purposes of sale rather than of cultivation, " timber " refers to trees prepared for transportation, such as saw logs or lumber in bulk; * includes trees of any size that may be used in any kind of manufacture or the construction of any article. It matters not to what purposes the trees are api)lied after being cut, if converted to the use of the accused.* The homesteader may use or dispose of timber as an incident to his settlement, cultivation and improvement. He has only those rights in or over the property which are necessary to perfecting his title. *, Boxing pine trees for turpentine is not forbidden, where they are not upon lands reserved for the uses of the navy, and there is no intent to export, dispose of, use, or employ the trees or timber.^ An act approved June 4, 1888 (25 St. L. 166), amending R. S. § 5388, provides that every person who unlawfully cuts or wantonly destroys any timber standing upon land which, in pursuance of law, may be reserved or purchased for military or other purposes, or upon dny Indian reservation, or lands belonging to or occupied by any tribe of Indians under, authority of the United States, shall pay a fine of not more than five hundred dollars or be imprisoned not more than twelve months, or both, in the discretion of the court. In a contract for the purchase of "timber" the ■ purchaser acquires no title to trees suitable only for fire-wood or cord-wood.^ An indictment for carrying away fence rails will not lie under a statute punishing cutting and carrying away timber.^ When the title to land remains in a State timber cut upon the ^and belongs to the State. While the timber is standing it constitutes a part of the realty; severed » United States v. Schuler, 6 McL.

37 (ISfiS), Wilkins, J. afiabka v. Eldred, 47 Wis. 193 (1879), Lyon, J.: Lien Act, 1862; 22 Wis. 669 — "shingles." ^ Hubbard v. Burton, 75 Mo. 67 (1881). < United States v. Stores, 14 F. R. 825 (1882), Locke, D. J.; The Timber Oases, 11 id. 81 (1881). * United States v. Murphy, 32 F. R. 379 (1887), cases; United States v. Ball, 31 id. 667 (1887).

6 Leatherbury v. United States, 32 F. R. 780 (1887). from the soil, its character is changed — it becomes personalty, but its title is not affected: it continues to be the property of the owner of the land, and can be pursued wherever it is carried. All the remedies are open to the owner which the law affords in other cases of wrongful removal of personalty.* Timber unlawfully cut by one of two owners of land may not become personalty as to the other owner unless he elects to treat it as personalty. '^ That which was real estate continues real until the owner of the freehold elects to give it a different character.

— 3 Where the plaintiff, in an action for timber cut and carried away from his land, recovers damages, the rule for assessing them against the defendant is: (1) Where he is a willful trespasser, the full value of the property at the time and place of demand, or of suit brought, with no deduction for his labor and expense, (2) Where he is an unintentional or mistaken trespasser, or an innocent vendee from such trespasser, the value at the time of conversion, less the amount which he and his vendor have added to its value. (3) Where he is a purchaser without notice of wrong from a willful trespasser, the value at the time of such purchase.* See Adjacent; Logs; Mortgage; Operate; Stump;

Use, 2; Waste, 2; Woods.