It is contended by the defendant that the lease (so called) of Chamberlain, under which the defendant claims as assignee, conveyed an interest in the land, and that, after the expiration of the lease, he became a tenant at sufferance, and so this action will not lie against him before entry by the plaintiff.

The instrument relied upon is the contract or covenant between Chamberlain and Wait for the sale of all the timber on 100 acres of woodland — every species of timber suitable for hewing, sawing, splitting or shaving; Wait to have five years, from the 1st of April 1837, to get the timber from the land, and to cut clean, leaving all the wood, and doing as little injury to the young trees as practicable, and to have no right to the wood which might arise from cutting the timber. This is a sale of the standing" timber on the land, with a right to remove it any time within five years. It is not a grant of the land, nor of any such interest in it as to give *159to the lessee any exclusive possession of the land. A mistake is sometimes made by not distinguishing between a right to enter on land for a specified purpose, under a license or contract, and a right of possession by a lessee, to the exclusion of the owner of the fee. The first is not only consistent with the possession of the owner, but does not alter' or affect his possession. The latter is a grant of the possession, which cannot be resumed without an entry by the owner, either absolute or constructive. In the present case, the possession of the owner was not changed by force of the contract. The purchaser of the timber had the full right to enter, and cut and carry off the timber, but not to oust or disturb the owner, who reserved to himself the wood cut from the timber in lopping or hewing it, and every other beneficial interest in the land or its issues.

The plaintiff, therefore, as the assignee of the grantee of Chamberlain, was, by force of his deed, in possession of the estate, and there was no necessity of an entry by him to terminate any right on the part of the defendant. The defendant was not a tenant by sufferance. He had no interest in the land; and his right of entry to cut and carry away the timber was put an end to by the determination of the lease. During its continuance, if he had been disturbed in his right of entering and cutting the timber, he could well have maintained an action for such injury, because of his separate interest in the timber. And even an estate of inheritance may exist in the trees on land, while the fee of the soil is in another. Clap v. Draper, 4 Mass. 266. But here no' such estate was created, but simply a right, during five years, to take off the timber growing on the land.

The case at bar is not distinguishable in principle from that of Pease v. Gibson, 6 Greenl. 81, cited by the plaintiff’s counsel, in which the court held that a sale by deed of all the timber trees standing on a parcel of land, the purchaser to have two years to take off the timber, was only a sale of so much of the timber as the vendee might take off in two years, and that an entry by him, after that period, was a trespass , *160although, after the time had expired, the land was sold, reserving any rights which the pin-chaser of the timber might have. And this case is also a full answer to the defendant’s allegation that he became the absolute owner of the timber by force of the contract, and that, being the owner, he might lawfully enter, and cut and carry it away, after the period limited in the contract. If this were so, it would not only deprive the owner of the land of the right to cultivate and enjoy it, but it would amount to an indefinite permission to cut and carry off the timber in so gradual a manner that he might avail himself of a second growth before the first was all removed, and thus in fact defeat the owner of his right in the estate, during the life- of the vendee. Gilmore v. Wilbur, 12 Pick, 120.

As to the point raised, that after the five years had passed by, there was an understanding and such negotiations between the parties as amounted to a license to the defendant to enter and take off the timber, without being a trespasser, it has been disposed of by the finding of the jury.

Exceptions overruled.