it is found not free from reasonable doubt. The doubt must be reasonable, and so far as it depends upon the contingent events and uncertain facts, their occurrence and existence must be fairly probable. Facts must be known at the time which fairly raise a reasonable doubt or render the title doubtful and not merely a possibility or conjecture that such a state of facts may be developed at some future time. Gates v. Parmly, 93 Wis. 294 (66 N. W. Rep. 253). A title claimed to be derived from a tax sale of property incumbered at the time of the tax sale with a judicial mortgage, still of record against the owner, will not be forced on a proposed pur. chaser, under his agreement to buy, unless the tax deed is produced, and its prima facie effect is unimpaired by testimony. Fitzpatrick v. Leake, 47 La. 1643 (18 So. Rep. 649).

Sec. 932. Prima facie proof of title. In proving title where the name of the garntor in the deed is the same as that of a previous grantee of the premises, and the premises conveyed are indentical, the proof of identity is prima facie sufficient though the recitals in the deeds as to the residence of such person differ. Geer v. Missouri Lum. & Min. Co., 134 Mo. 85 (34 S. W. Rep. 1099; 56 Am. St. Rep. 489). Proof of possession under claim of title maks a prima facie case against one who offers no evidence of title. This prima facie case is not overcome by the fact that the claimant in addition thereto undertakes to prove a better title and fails. Coombs v. Hertig, 162 Ill. 171 (44 N. E. Rep. 392).

Sec. 933. Slander of title. An action for the slander of title cannot be maintained unless the injurious false statements are maliciously made. Harrison v. Howe, 109 Mich. 476 (67 N. W. Rep. 527). Citing, Walkley v. Bostwick, 49 Mich. 374 (13 N. W. Rep. 780); Newell on Defamation, 206. In order to recover damages for slander of title, it is necessary to show that the slanderous statements were made maliciously, that they were untrue, and that the plaintiff sustained pecuniary loss as a necessary or natural and proximate consequence of the slanderous statement. It is not necessary to show that the defendant had knowledge of any proposed trade or that the value of the real estate was depreciated by

the statements or that they were made for the purpose of preventing a trade, depreciating the value of the property or in order to injure the plaintiff. May v. Anderson, 14 Ind. App. 251 (42 N. E. Rep. 946).

TREES.

EPITOME OF CASES.

Sec. 934. Contracts and conveyances concerning growing trees. Where a contract for the sale of standing timber provides for its removal within a specified time, timber not cut within that time reverts to the owner, but timber which has been cut into logs will be considered as " removed." Macomber v. Detroit, L. & N. R. Co., 108 Mich. 491 (66 N. W. Rep. 376; 62 Am. St. Rep. 713). A parol reservation of trees by the grantor conveying land cannot be shown. Dodder v. Snyder, 110 Mich. 69 (67 N. W. Rep. 1101). A covenant of warranty in a conveyance of standing timber will be treated as a real, and not a personal, covenant. Mizell v. Ruffin, 118 N. C. 69 (23 S. E. Rep. 927). A lease of standing timber must be executed and recorded the same as a lease of real estate. Milliken v. Faulk, 111 Ala. 658 (20 So. Rep. 594). For construction of a particular lease of pine timber "for the purpose of manufacturing spirits of turpentine," see Carmichael v. Brown, 97 Ga. 486 (25 S. E. Rep. 357).

Sec. 935. Action for injuring or removing treesMeasure of damages. The assignee of a bond of the vendor of lands covenanting for the making of title to the obligee on the full payment of the purchase money, cannot maintain an action against the vendor, who enters before the purchase money is fully paid, cutting and removing trees from the lands, to recover penalties given to the owner of the lands on account of such acts by Ala. Code, § 3296. Gravlee v. Williams, 112 Ala. 539 (20 So. Rep. 952). An injury to shade trees by the escape of natural gas carelessly suffered to escape from a gas main in an adjoining street renders the gas com

pany liable to the owner for the damage. The measure of damages for an injury to shade trees is the difference in the value of the land before and after the injury. Evans v. Keystone Gas Co., 148 N. Y. 112 (42 N. E. Rep. 513; 51 Am. St. Rep. 681; 30 L. R. A. 651). S. & B. Ann. Wis. Stat., § 4269, applied-measure of damages for wrongful cutting of timber. Everett v. Gores, 92 Wis. 527 (66 N. W. Rep. 616). For an additional decision in the case of Robinson v. Clapp, epitomized in Vol. IV, § 828, which does not modify the doctrine there laid down, see Robinson v. Clapp, 67 Conn. 538 (35 Atl. Rep. 504; 52 Am. St. Rep. 298).

TRESPASS.

EPITOME OF CASES.

66

Sec. 936. As to what constitutes a trespass on lands. In an action of trespass against an adjoining owner for the removal of a partition fence it was held that the defendant necessarily entered upon" the plaintiff's land, though he may have all the while stood and walked upon his side of the line, and though his feet may not have touched the earth on the plaintiff's side. Garrett v. Sewell, 108 Ala. 521 (18 So. Rep. 787); Flannery v. Hightower, 97 Ga. 592 (25 S. E. Rep. 371). A trespass on realty, in general, may be defined to be an injury to or use of the land of another, by one who has no right or authority whatever. Brown v. Solary, 37 Fla. 102 (19 So. Rep. 161). Kan. Gen. Stat. 1889, pars. 2241, 7157, construed and applied-what constitutes malicious trespass. State v. Tincher, 57 Kan. 136 (45 Pac. Rep. 91).

Sec. 937. As to who may maintain the action. In Michigan it is held that in order to maintain trespass one must have the legal title or be in actual possession of the premises, and that a vendee in a land contract who has neither actual nor constructive possession cannot maintain the action. Gates v. Comstock, 107 Mich. 546 (65 N. W. Rep. 544). The owner of 'and is not prevented from maintaining an action for

trespass thereon by reason of the fact that a tenant for a previous year was temporarily on the land with the owner's permission until he could get another place. Garrett v. Sewell, 108 Ala. 521 (18 So. Rep. 787). In order to maintain an action for trespass for an injury or wrong done to the possession, the plaintiff must have been in possession either actually or constructively at the time when the trespass was committed. Blackford v. Rogers, Va. (23 S. E. Rep. 896). As to whether the action may be maintained by one having the right to the use of a burial lot in a public cemetery, see Bessemer Land & Imp. Co. v. Jenkins, 111 Ala. 135 (18 So. Rep. 565; 56 Am. St. Rep. 26). Georgia Code, §§ 3015, 3016, construed and applied-who may maintain action for trespass and proof required. Whiddon v. Williams Lum. Co., 98 Ga. 700 (25 S. E. Rep. 770); McDonough v. Carter, 98 Ga. 703 (25 S. E. Rep. 938). A suit for injury to realty may be maintained by a mortgagee or a beneficiary in a trust deed He need not have possession or right to possession of the land; his right of possession grows out of impairment of his security. Vaughn v. Grigsby, 8 Colo. App. 373 (46 Pac. Rep. 624) A school district is the proper party to sue for trespass on land dedicated for school purposes. Morris v. School District No. 86, 63 Ark. 149 (37 S. W. Rep. 569). A purchaser of land holding a bond for a deed, to be made on the full payment of the purchase price, cannot maintain an action given to an "owner" of lands by a penal statute. Gravlce v. Williams, 112 Ala. 539 (20 So. Rep. 952).

Sec. 938.

Pleading-Sufficiency of complaint. The plaintiff in an action to recover damages for a trespass upon real estate, who seeks to aggravate the damages by showing wrongs committed by the defendant in the destruction of, or injury to, personal property of the plaintiff on such premises must allege the aggravating circumstances in his pleadings. Freelove v. Gould, 3 Kan. App. 750 (45 Pac. Rep. 454). In an action of trespass for taking water from and injuring the banks of a ditch a cross complaint by the defendant that he has possession and controls lands through which the stream supplying the ditch runs is not sufficient without an allegation that such possession and control is rightful. Silver Creek &

P. L. & W. Co. v. Hayes, 113 Cal. 142 (45 Pac. Rep. 191). Under Alabama Code, 1886, p. 795, a complaint which alleges that the plaintiff owned the land need not contain an allegation that he was in possession. O'Neal v. Simonton, 109 Ala. 167 (19 So. Rep. 412).

Sec. 939. Practice and proof. In Maine it is held that trespass quare clausum is a possessory action and it is necessary to show possession in the plaintiff except where there is an injury to the freehold while it is in the occupation of the tenant at law. A remainderman cannot maintain the action. Lawry v. Lawry, 88 Me. 482 (34 Atl. Rep. 273). It is held that when a portion of the realty is wrongfully severed from the soil, so as to give to it, after being so severed, the character of personalty, the rightful owner of the land, if in the actual possession thereof, or having constructive possession with the right of actual possession, may recover that part which has been so severed in any appropriate proceeding, and will not be driven to a suit for damages to the land itself. Jones v. Bull, 90 Tex. 187 (37 S. W. Rep. 1054). Citing, Laflin v. Griffiths, 35 Barb. 58; Kimball v. Lohmas, 31 Cal. 154; Huebschmann v. McHenry, 29 Wis. 655; Johnson v. Elwood, 53 N. Y. 431; Cresson v. Stout, 17 Johns. 116; Harlan v. Harlan, 15 Pa. St. 507 (53 Am. Dec. 612); Ogden v Stock, 34 Ill. 522 (85 Am. Dec. 332). In Rhode Island it is held that the plea of the general issue is to be deemed a part of the record in a case which is certified to the common pleas division on a claim for a jury trial, where there was an entry of appearance by the defendant in the district court; but in order to introduce evidence of a license or any other affirmative defense, a plea of the same was necessary. Collier v. Jencks, 19 R. I. 493 (34 Atl. Rep. 998). As to when the action will be considered a petitory one under the practice in Louisiana. Daigre v. Levin, 48 La. 414 (19 So. Rep. 336). Alabama Acts, 1894-95, p. 1088, construed and applied-prosecution for trespass after warning-evidence. Harper v. State, 109 Ala. 28 (19 So. Rep. 857). In an action for per manent injuries to realty whereby the value of the property was depreciated, plaintiff, in order to sustain his action, must show fee simple title to the premises, and in default of such