Page:Harvard Law Review Volume 8.djvu/385

369 SALES OF STANDING TREES. 3^9 Scorell V. Boxall ^ is very similar. The plaintiff had bought a lot of growing underwood which the defendants (not the vendor) cut and carried away, and for which the buyer brought trespass, " a possessory action ; " and it was held he had not such a possession as to enable him to maintain that particular action, though the language of the judges might have been more general. Conversely, in Harrell v. Miller ^ the subsequent vendee of the land, with no reservation of the trees, was allowed to recover against a previous oral buyer of them who, after the deed had been made, cut and carried away the trees. Pennsylvania has also frequently declared that if the trees are to stand an indefinite time the sale is within the Statute.^ The time of the removal was also indefinite in Hostetter v. Auman,* with the same result.^ Some of the objections raised in these cases to indefinite licenses would *be obviated, or diminished at least, by construing the license to continue only for a reasonable time, which might be considered to be only so long as the trees were in substantially the same condi- tion as when sold. On that view, the license would terminate and the trees be forfeited, if allowed to stand too long.^ 3. Still another view is that if the trees are sold " as trees," and are not to be first cut by the vendor and delivered in their new condition, it is immaterial whether they are to stand, or do in fact stand, a long or a short time after the sale ; in either case they are to be considered at the time of sale as realty, and therefore the Statute applies. This subject was recently examined in Hirth v. Graham,' where it was held to be immaterial whether the parties did or did not contemplate an immediate severance and removal of the trees, the contract of sale was invalid if not in writing ; so in- valid that even the buyer could not maintain an action upon it against the seller for refusing to allow him to take the trees, — the Court saying, " the question whether such sale is a sale of an inter- est in or concerning land, should depend, not upon the intention of 1 I Y.& J. 396(1827). 2 35 Miss. 700 (1858). 8 Pattison's Appeal, 61 Pa. St. 294 (1869); Bowers v. Bowers, 95 ib. 477 (1880); Miller v. Zufall, 113 ib. 317 (1886.) « See Hill v. Hill, 113 Mass. 103; Hill v. Cutting, ib. 107; Gilmore v. Wilbur, 12 Pick. 1 20 ; Heflin v. Bingham, 56 Ala. 566. T 50 Ohio St. '57 (1893).
 * 119 Ind. 7 (1888).
 * See also Yeakle v. Jacob, 33 Pa. St. 376; Huff v. McCauley, 53 Pa. St. 2c6.