after stating the case: If there is- any evidence that the logging road was a fixture, there was error in entering the judgment of nonsuit, because, if a fixture, it passed to the plaintiff by a conveyance of the land, and he would be entitled to recover damages for its removal, and we are of opinion there is such evidence.
The logging road was annexed to the soil, and if the testimony of the plaintiff is true, it was built for the better enjoyment of the land, and was adapted to that purpose, thus meeting the rule stated by Justice Walker in S. v. Martin, 141 N. C., 832, which, while correct as applied to the facts then being considered, is more favorable than the one adopted by our Court as applicable between vendor and vendee, which is the relationship of the plaintiffs and the defendant.
In Overman v. Sasser, 107 N. C., 435, substantially all of the cases bearing directly on this question are collected by the present Chief Justice, and the Court there adopts the rule laid down by Lord Ellenborough in Elwes v. Mawe, 3 East, 38, that as between vendor and vendee “the common-law rule, that whatever is affixed to the freehold becomes a part of it and passes with it, is observed in full vigor.”
The defendant contends, however, that although this may be the rule usually applied between vendor and vendee, that the fact that the logging road was built for the removal of the timber, and that the pine timber is excepted in the deed, take this case out of the rule, and that when the character of the road is- considered, it appears that it was not the intention of the parties that the logging road should pass by the deed.
*18The answer is, that if he built the road for the sole purpose of removing the timber, he was at that time the owner of the timber, and if he then made the road a part of the land by annexation, he could not afterwards change its character by selling the land, reserving the timber.
It also appears from the evidence of the plaintiff that there was other timber on the land, not reserved, large enough to cut, and that the plaintiffs could have used the road beneficially in getting out this timber.
The reservation in the deed, instead of strengthening the contention of the defendant, refutes it, upon the familiar maxim, expressio unius exclusio alterius.
The conclusion is almost irresistible, that when the attention of the defendant was called to the reservations he wished to make by mentioning the pine timber, he would have also included the logging road, if he had not intended it to pass by the deed.
There is error.
Reversed.