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owner of the overhanging branches and the fruit thereon. The general rule unquestionably is, that land hath in its legal signification an indefinite extent upward, including everything terrestrial, not only the ground or soil, but everything which is attached to the earth, whether by the course of nature, as trees, herbage, and water, or by the hands of man, as houses and other buildings. (See Co. Lit. 4 a; 2 Black. Com. 18; 3 Kent's Com., p. 401 ; 2 Bouvier's Ins. $ 1570.)
This rule, while it entitles the owner of the land to the right to it, and to the exclusive use and enjoyment of all the space above it, and to erect any superstructure thereon that he may see fit, — and no one can lawfully obstruct it to his prejudice, — yet if an adjoining owner should build his house so as to overhang it, such an encroachment would not give the owner of the land the legal title to the part so overhanging. It would be a violation of his right, for which the law would afford an adequate remedy, but would not give him an ownership or right to the possession thereof. (See Aiken v. Benedict, 39 Barb. 400.)
Although different opinions have been held as to the rights of owners of adjoining land in trees planted, the bodies of which are wholly upon that of one, while the roots extend and grow into that of the other and derive nourishment therefrom, it was considered by Allen, J., in giving the opinion of the court in Dubois v. Beaver, 25 N. Y. Rep. 123, etc., that the tree is wholly the property of him upon whose land the trunk stands. This principle is sustained in Masters v. Pollie, 2 Rol. Rep. 141 ; Holder v. Coates, 1 Moody & Malkin, 112.
The ground or reason assigned in those cases for holding that the owner of land on which no part of a tree stands, but into which the roots extend, has any interest, is that the tree derives its nourishment from both estates, and not the ground or maxim on which the defendant's claim is based.
We have not been referred to any case showing that where no part of a tree stood on the land of a party, and it did not receive any nourishment therefrom, that he had any right therein, and it is laid down in Bouvier's Institutes (section 1573) that if the branches of a tree only overshadow the adjoining land, and the roots do not enter into it, the tree wholly belongs to the estate where the roots grow. (See also Masters v. Pollie, 2 Rol. Rep. 141 ; Waterman v. Soper, 1 Ld. Raymond, 737.)
The rule or maxim giving the right of ownership to everything above the surface to the owner of the soil has full effect without extending it to anything entirely disconnected with or detached from the soil itself.
It follows, from the views above expressed, that the ruling of the judge at the Circuit was right, and the judgment appealed from must be affirmed, with costs. All concur.
Judgment affirmed. NOTE. — “I cannot see how that a bare denial of a thing detained shall make a conversion : Thumblethorpe's Case, a lessee, at the end of his term, leaves a timber log on the ground; afterwards he demands it. A denial of this, without some other act done,
shall not make a conversion of this, if he doth not remove this, and so makes some
“If trees grow in my hedge, and the fruit of such a tree hangs over your land, and S
See Refuences under trees.
Cal.cases. abboil doubli if owner can cul suo clown & cut hools. Thinks you can fine links.
St. 52 HEN. III. St. OF MARLBOROUGH (1267), c. 23, § 2. Also ferinors, during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of anything belonging to the tenements that they have to ferm, without special license had by writing of covenant, making mention that they may do it; which thing, if they do, and thereof be convict, they shall yield full damage, and shall be punished by amerciament grievously.
St. 6 Edw. I. Sr. OF GLOUCESTER (1278), c. 5. It is provided also that a man from henceforth shall have a writ of waste in the Chancery against him that holdeth by law of England, or otherwise for term of life, or for term of years, or a woman in dower; and he which shall be attainted of waste shall lose the thing that he hath wasted, and moreover shall recompence thrice so much as the waste shall be taxed at.
Reg. Brev. 73. The king to the sheriff, &c., greeting. If A. shall give you security of prosecuting his claim, then summon B. by good summoners that he be before our justices at Westminster on the octave of St. Michael to show wherefore since it has been provided by the common council of our realm of England that it is not lawful for any one to commit waste, sale, or destruction of lands, houses, woods, or gardens demised to them for term of life or of years, the same B. has made of the lands, houses, woods, and gardens in L., which the said A. demised to him for the term of the life of the said B. (or which the said A. demised to him for a term of years, or which F., the father or mother or other ancestor of the said A. whose heir he is, demised to the said B., for the life of the said B. or for a term of years) waste, sale, and destruction, to the disherison (ad exheredationem) of A., and against the form of the Statute aforesaid, as he says: And have there the summoners and this writ.
1 “ Albeit tenant in tail apres possibility of issue extinct doth hold but for life, and so within the letter of this law, yet is he out of the meaning thereof in respect of the inheritance which was once in him, in respect whereof his estate is by law dispunishable of waste, but his assignee shall be punished for waste by this Statute." 2 Inst. 302.
[Reported Fitz. Ab. Wast, pl. 30.] WASTE, and it was found by the inquest, where it was pleaded for the party that there was no waste, that as to a kitchen, it was burned by a strange woman without the knowledge of the defendant (because he was living elsewhere); and that to rebuild this kitchen he cut the oaks in the woods and hedges near the close; and that the house is now better than it was before the fire ; and that he had also cut down a certain number of oaks in the woods and hedges near the close and sold them, and had cut down some to repair the houses, and had cut down one which lay there yet unsold.
Pole prayed judgment on the verdict for the plaintiff because all that is found should be adjudged waste by the form of his plea, wherefore the defendant ought to have pleaded this matter if he wished to have availed himself of it. WilUGHBY [C. J.]. The fire is waste for the want of good watch.
THORPE (J.]. Now lately here on a writ of waste it was found by an inquest taken on default that the Welsh arrived on the sea-coast and burned a manor, and it was adjudged no waste, so here.
WILUGHBY (C. J.]. Against the Welsh the party can never have disturbance.. But do you think if your household [? main] lodges a stranger who puts the houses in fire and flame, that that will not be adjudged waste? As if he would say it was. Wherefore the fire is adjudged waste, and so the kitchen is wasted ; but the cutting to repair the house is not waste, and as to that which is cut and not sold, that is waste, and that which is cut for repairs, although it was not pleaded, is adjudged no waste, wherefore the court awards that the plaintiff recover the place wasted and treble damages.
THE ABBOT OF SHIRBOURNE'S CASE.
COMMON PLEAS. 1411.
(Reported Year Book, 12 Hen. IV. 5.) THE Abbot of Shirbourne brought a writ of waste.
Norton traversed the waste except in a barn, and said that half of the barn had fallen before the lease, and as to the other half, he said that it was unroofed by a sudden storm, and before he could roof it, the plaintiff entered on him and was seised on the day of the purchase of the writ, and he demanded judgment, if he could maintain an action for this waste.
1 Part of the case is omitted.
Skrene. We have alleged that he has done waste in a barn, which we let to him, and he says that the waste was made in one half before the lease, which is no answer to our action because, &c., and if he has made a new barn there himself, and waste has been done in that, our action is maintainable.
Hill [J.]. If the matter is so, allege it on your part, for his answer is good.
Skrene. Well, then as to the other half his plea is double, one is the sudden storm, the other is our entry on him, wherefore we pray he may be held to one of them.
Hill [J.]. The plea is not double, because the effect of this plea is your entry upon him before he could repair the unroofing
Skrene. If I traverse the entry, he will rely against me [reliera sur moy] on the sudden storm, which excuses him from waste; for if I let houses for a term of years, and they are unroofed by sudden chance, I shall have no action of waste for that. .
Hill [J.]. What you say is not law, for although at the beginning it will not be adjudged waste made by him, but by the act of God, yet if he suffers the house to be unroofed, by reason of which the timber is injured, he shall answer for this waste, because it is his own fault, and by law he is bound to roof the house.
Skrene. If the whole house is blown down by a sudden wind, I shall not make a new one.
Hill [J.]. I grant it; but when the timbers are standing, which are the substance of the house, and they fall for lack of roofing, it is clearly waste.
HANKFORD [J.] If I do waste in tenements which I hold for term of years, and within the term I am put out by the lessor, it is a question whether he has an action of waste or not, namely, during the term ; and it is proved here by the count that the term still continues; and yet if he wishes to say that the houses were unroofed by your fault and not by a sudden wind, he will be concluded by the entry which he made without cause, wherefore the plea seems double.
And then Norton alleged the cause of the entry of the plaintiff specially ; viz., that the lease was made by indenture on condition, that if waste was done, he could re-enter, and by reason of the unroofing he re-entered, wherefore, &c.
HANKFORD (J.]. Again you prove by your plea that his entry was tortious, and so the plea is double.
Hill [J.]. The plaintiff can say that the defendant had sufficient time before his entry to have repaired the house, and did not repair it, and so prove the waste in the defendant's default, and so prove his entry lawful by the condition aforesaid ; wherefore
HANKFORD [J.] to Norton. Be advised, &c.
1 “Waste and destruction are nearly equivalent, and are used indifferently in refer. ence to houses, woods, and gardens ; but exile can be used when serfs are manumitted,