Opinion of the Court.

ises." 1 Wash. Real Prop. 5th ed. 95. As was said in De Peyster v. Michael, 6 N. Y. 467, 506, a right of reëntry "is not a reversion, nor is it the possibility of reversion, nor is it any estate in the land. It is a mere right or chose in action, and, if enforced, the grantor would be in by a forfeiture of a condition, and not by a reverter. It is only by statute that the assignee of the lessor can reënter for condition broken. But the statute only authorized the transfer of the right, and did not convert it into a reversionary interest, nor into any other estate. When property is held on condition, all the attributes and incidents of absolute property belong to it until the condition be broken." Had the State through its agents cut timber upon these lands, an action would have lain by the United States upon the covenant of the State that the lands should be held for railway purposes only, and devoted to no other use or purpose; but the State was not responsible for the unauthorized acts of a mere trespasser, and it was no violation of its covenant that another person had stripped the lands of its timber.

In the case of Schulenberg v. Harriman, 21 Wall. 44, an act immediately preceding this, granting public lands to the State of Wisconsin to aid in the construction of railroads in that State, and precisely similar to this act in its terms, was construed by this court as a grant in præsenti of title to the odd sections designated, to be afterwards located; that when the route was fixed their location became certain, and the title, which was previously imperfect, acquired precision and became attached to the lands. As it is stipulated in this case that the lands from which the timber was cut were a part of the grant of June 3, 1856, to the State of Michigan, and were a part of the lands within the six-mile limit, certified and approved to the State by the Secretary of the Interior, no. question arises with respect to the identity of the lands.

The case of Schulenberg v. Harriman was also an action for timber cut upon lands granted to the State, against an agent of the State who had seized the logs, which had been cut after the ten years had expired for the construction of the railroad, but before any action had been taken by Congress

Opinion of the Court.

to forfeit the grant. The complaint in the case alleged property and right of possession in the plaintiffs. It was stipulated by the parties that the plaintiffs were in the quiet and peaceable possession of the logs at the time of their seizure by the defendants, and that such possession should be conclusive evidence of title in the plaintiffs against evidence of title in a stranger, unless the defendant should connect himself with such title by agency, or authority in himself. The title of the plaintiffs was not otherwise stated. It was held that the title to the lands did not revert to the United States after the expiration of the ten years, in the absence of judicial proceedings in the nature of an inquest of office, or a legislative forfeiture, and that until a forfeiture had taken place the lands themselves and the timber cut from them were the property of the State. Said Mr. Justice Field, in delivering the opinion of the court, p. 64: "The title to the land remaining in the State, the lumber cut upon the land belonged to the State. Whilst the timber was standing it constituted a part of the realty; being severed from the soil its character was changed; it became personalty, but its title was not affected; it continued as previously the property of the owner of the land, and could be pursued wherever it was carried. All the remedies were open to the owner which the law affords in other cases of the wrongful removal or conversion of personal property." The same rule regarding the construction of this identical land grant was applied by this court in Lake Superior Ship Canal &c. Co. v. Cunningham, 155 U. S. 354. Indeed, the principle is too well settled to require the citation of authorities. The case of Schulenberg v. Harriman, 21 Wall. 44, differs from the one under consideration in the fact that no act forfeiting the grant was ever passed; but it is pertinent as showing that under a statute precisely like the present the title to the timber cut before such forfeiture is in the State and not in the General Government.

It follows that the United States, having no title to the lands at the time of the trespass and no right to the possession of the timber, are in no position to maintain this suit. Neither a deed of land nor an assignment of a patent for an

Opinion of the Court.

invention carries with it a right of action for prior trespasses or infringements. Such rights of action are, it is true, now assignable by the statutes of most of the States, but they only pass with a conveyance of the property itself where the language is clear and explicit to that effect. 1 Chitty on Pleading, 68; Gardner v. Adams, 12 Wend. 297, 299; Clark v. Wilson, 103 Mass. 219, 223; Moore v. Marsh, 7 Wall. 515; Dibble v. Augur, 7 Blatchf. 86; Merriam v. Smith, 11 Fed. Rep. 588; May v. Juneau County, 30 Fed. Rep. 241; Kaolatype Engraving Company v. Hoke, 30 Fed. Rep. 444.

So where a landowner entrusts another with the possession. of his lands, either by lease, by contract to sell, or otherwise, the right of action for trespasses committed during such tenancy belongs to the latter, and except under special circumstances an action for a trespass, such as the cutting of timber, will not lie in favor of the landlord. Greber v. Kleckner, 2 Penn. St. 289; Campbell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns. 468; Cutts v. Spring, 15 Mass. 135; Lienow v. Ritchie, 8 Pick. 235; Ward v. Macauley, 4 T. R. 489; Revett v. Brown, 5 Bing. 7; Harper v. Charlesworth, 4 B. & C. 574; Graham v. Peat, 1 East, 244; Lunt v. Brown, 13 Maine, 236; 2 Greenlf. on Ev. § 616.

Although, as was said by Lord Kenyon in Ward v. Macauley, 4 T. R. 489, "the distinction between the actions of trespass and trover is well settled: The former are founded on possession; the latter on property;" yet, they are concurrent remedies to the extent that, wherever trespass will lie for the unlawful taking and conversion of personal property, trover may also be maintained. The plaintiff is bound to prove a right of possession in himself at the time of the conversion, and if the goods are shown to be in the lawful possession of another by lease or similar contract, he cannot maintain trover for them. Smith v. Plomer, 15 East, 607; Wheeler v. Train, 3 Pick. 255; Gordon v. Harper, 7 T. R. 9; Ayer v. Bartlett, 9 Pick. 156; Fairbank v. Phelps, 22 Pick. 535.

It does not aid the plaintiffs' case to take the position (the soundness of which we by no means concede) that the State held the lands as trustee, to deliver them over to the railroads

Opinion of the Court.

upon certain contingencies, and to return them to the United States in case the condition subsequent were not performed, since nothing is better settled than that a trustee has the legal title to the lands, and that actions at law for trespasses must be brought by him, and by him alone. 1 Perry on Trusts, sec. 328, and cases cited; Fenn v. Holmes, 21 How. 481.

Certain cases having a contrary bearing will now be considered. Several of these are to the effect that if a man leases an estate for a term of years and the tenant unlawfully cuts timber the lessor may sue in trespass, and perhaps in trover, upon the ground that the title to the land remains in the lessor during the pendency of the lease.

In Richard Liford's case, 11 Coke Rep. 46, which was an action of trespass by a tenant against the agent of the owner of the inheritance for certain trees cut, it was said "that when a man demises his land for life or years the lessee has but a particular interest in the trees, but the general interest of the trees remains in the lessor; for the lessee shall have the mast and fruit of the trees, and shadow for his cattle, etc., but the interest of the body of the trees is in the lessor as parcel of his inheritance; and this appears in 29 H. 8 Dyer, 36, where it is held in express words that it cannot be denied that the property of great trees, scil. the timber, is reserved by the law to the lessor, but he cannot grant it without the termor's license, for the termor has an interest in it, scil. to have the mast and fruit growing upon it, and the loppings thereof for fuel, but the very property of the tree is in the lessor as annexed to his inheritance." Again, speaking of disseisin and the respective rights of the disseisee and disseisor when the former regains possession, it is said: "That after the regress of the disseisee the law adjudges as to the disseisor himself, that the freehold has continued in the disseisee, which rule and reason doth extend as well to corn as to trees or grass, etc. The same law, if the feoffee, or lessee, or the second disseisor, sows the land, or cuts down trees or grass, and severs, and carries away, or sells them to another, yet after the regress of the disseisee, he may take as well the corn as the trees and grass to what place soever they are carried; for the regress

Opinion of the Court.

of the disseisee has relation as to the property, to continue the freehold against them all in the disseisee ab initio, and the carrying them out of the land cannot alter the property."

In Gordon v. Harper, 7 T. R. 9, it was held that where goods had been leased as furniture with a house, and had been wrongfully taken in execution by the sheriff, the landlord could not maintain trover against the sheriff, pending the lease, because he did not have the right of possession as well as the right of property at the time. The case was distinguished from one where the thing was attached to the freehold, and the doctrine of Liford's case was reiterated, that where timber is cut down by a tenant for years the owner of the inheritance may maintain trover for the timber notwithstanding the lease, because the interest of the lessee in it remained no longer than while it was growing on the premises and determined instantly when it was cut down. See also Mears v. London & Southern Railway, 11 C. B. [N. S.] 850; Randall v. Cleaveland, 6 Conn. 328; Elliot v. Smith, 2 N. H. 430; Starr v. Jackson, 11 Mass. 519.

These cases obviously have no application to one where there has been a conveyance of the fee of the land prior to the cutting of the timber, and no reëntry or analogous proceeding on the part of the vendor for a breach of a condition subsequent.

The same distinction was taken in Farrant v. Thompson, 5 B. & Ald. 826, in which certain mill machinery, together with the mill, had been demised for a term to a tenant, and he, without permission of his landlord, severed the machinery from the mill, and it was afterwards seized under execution by the sheriff and sold by him. It was held that no property passed to the vendee, and the landlord was entitled to bring trover for the machinery, even during the continuance of the term, upon the ground that the machinery attached to the mill was a part of the inheritance which the tenant had a right to use, but not to sever or remove.

So in United States v. Cook, 19 Wall. 591, it was held that timber standing upon lands, occupied by Indians, cannot be cut by them for the purposes of sale, although it may be for