Whether timber rights held by defendant constitute a valid, perpetual estate in land.

Yes. The purchase of rights to cut standing and growing timber, in perpetuity, coupled with perpetual easement rights, is a transfer of an interest in land constituting a freehold estate.

Plaintiffs purchased several parcels of property in Hamilton County. They comprised several hundred acres once held by a common grantor, Harrer. Harrer sold each of the parcels, excepting and reserving forever the right to all hardwood and softwood trees and timber on the lots. The land was ultimately conveyed to plaintiffs through deeds excepting and reserving those rights. In 1978, Harrer conveyed his reserved timber rights to Imaco, Inc. In 1981, Imaco conveyed those rights to defendant.

In February 1996, defendant began harvesting timber. Plaintiffs commenced a trespass action seeking a preliminary injunction. The Supreme Court granted summary judgment to defendant finding that they held a valid estate in timber and that plaintiffs purchased the property with record notice of defendant's reserved timber rights. The Appellate Division affirmed, rejecting plaintiff's contention that defendant's rights were governed by the sale of goods provisions of Article 2 of the Uniform Commercial Code. Citing McGregor v. Brown, 10 NY 114, the Appellate Division concluded that such a grant of timber, which transfers not only timber then growing but also that which may grow in the future, and gave the buyer the right at any time thereafter to enter upon the premises, was a transfer of such an interest in land and constituted a freehold estate.

The Court of Appeals affirmed, rejecting Plaintiffs' contentions that the sale of the reserved timber rights was governed by UCC 2-107 and that defendant's failure to harvest the trees within a reasonable period of time constituted an abandonment of said rights. The rights defendant purchased were not limited to severing standing timber. Rather, they conveyed in perpetuity, the right to cut standing and growing timber along with a perpetual easement. The Court held, as in McGregor, that such a transfer created a freehold estate.