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CHAPTER III.

BORDER TREES.

Dig. 47, 7, 6, 2. If a tree has extended its roots into the land of a neighbor, the neighbor cannot cut them off, but he can bring suit to have it declared that there is no right to have it projecting like a beam or tile. If a tree is nourished by roots in a neighbor's land, yet it belongs to him in whose land it had its origin.

Inst. 2, 1, 31. If Titius put another's plant into his own ground, it will belong to him; and conversely if Titius puts his plant into Mævius's ground, it will be Mævius's plant, provided only that in each case it has struck root; but before it has struck root it continues his whose it was. But to such a degree is the property in a plant changed from the time of its striking root, that if a neighbor's tree encroach on the ground of Titius so as to strike its roots into his land, we say that the tree belongs to Titius ; for reason does not allow a tree to be considered as belonging to any one but him in whose land it has struck root: and therefore a tree placed near a boundary, if it strike root in the neighbor's land, becomes common property. 1

MASTERS v. POLLIE.
King's BENCH. 1620.

(Reported 2 Roll. R. 141.) . TRESPASS quare clausum fregit et asportavit his boards. The defendant justifies because that there was a great tree which grew between the closes of the plaintiff and of the defendant, and that part of the roots of this tree extended into the close of the defendant, and that the tree was nourished by the soil, and that the plaintiff cut down the tree and carried it away into his own close, and sawed it into boards, and the defendant entered and took some of the boards and carried them away, prout ei bene licuit, and on this the plaintiff demurred.

Harris. The plea is not good, for although some of the roots of the

Bracton (lib. 2, c. 2, § 6, fol. 10), after giving the substance of the passage from the Institutes, adds, “Nor can the neighbor cut off the roots. And this is true, if my tree has struck root in a neighbor's land, without which roots it cannot live, because it ought to be common ; but if it can live well enough without those roots, it will not be common."

tree are in the defendant's soil, yet the body of the main part of the tree being in the plaintiff's soil, therefore all the rest of the tree belongs to him also, and so Bracton holds ; but if the plaintiff had planted a tree in the soil of the defendant, then it will be otherwise, quod Curia concessit. But Montagu, Chief Justice, said the plaintiff cannot limit the roots of the tree, how far they shall grow and go; vide 2 Edw. IV. 23.1

ANONYMOUS. King's BENCH. 1622. [Reported 2 Roll. R. 255.)

by the roots takes nourishment in the land of A. and also of B., they are tenants in common of this tree; and so it was adjudged.

Nısı PRIUs. 1698.

[Reported 1 Ld. Raym. 737.) It was ruled by Holt, Chief Justice, at Lent assizes at Winchester, upon a trial at Nisi Prius 1697–8: 1. That if A. plants a tree upon

into the land of B. next adjoining, A. and B. are tenants in common of this tree. But if all the root grows into the land of A., though the boughs overshadow the land of B., yet the branches follow the root, and the property of the whole is in A. 2. Two tenants in common of a tree, and one cuts the whole tree; though the other cannot have an action for the tree, yet he may have an action for the special damage by this cutting ; as where one tenant in common destroys the whole flight of pigeons.

HOLDER v. COATES.

Nisi PRIUS. 1827.

[Reported i Moo. & M. 112.] TRESPASS for cutting a tree of the plaintiff.

The plaintiff's land, and that of the defendant, adjoined each other, the plaintiff's land being rather the higher, and the separation between

1 See 8. c. 2 Roll. R. 207.

the two being by a hedge belonging to the plaintiff, and standing at the extremity of his ground, on the bank or declivity descending to that of the defendant. The trunk of the tree stood in the defendant's land, but some of the lateral or spur roots grew into the land of both parties; and evidence was given on the part of the plaintiff to show that there was no tap root, and that all the principal roots, from which the tree derived its main nourishment, were those which grew into the plaintiff's land. The defendant, on the other hand, gave evidence that there was a tap root, growing entirely in his land, and that the spur roots grew alike in the lands of both parties.

On the part of the defendant it was contended that, upon the evi. dence, the tree must be taken as belonging entirely to his land; but that, at all events, it derived part of its nourishment from his land, and that the plaintiff and defendant in that case would be tenants in common of the tree, according to the rule in the case of Waterman v. Soper, 1 Lord Raym. 737; and in that case the action of trespass could not be supported.

LITTLEDALE, J. There is another case on that subject (Masters v. Pollie, 2 Roll. Rep. 141), in which it was considered that, if a tree grows in A.'s close, though the roots grow in B.'s, yet the body of the tree being in A.'s soil, the tree belongs to him. I remember, when I read those cases, I was of opinion that the doctrine in the case of Masters v. Pollie was preferable to that in Waterman v. Soper ; and I still think so. However, if the question becomes material, I will give you leave, on the authority of that case, to move to enter a nonsuit.

His lordship, in summing up to the jury, said, that with respect to any question which had been raised as to the proportion of nourishment derived by the tree from the soil of the plaintiff and defendant, he did not see on what grounds the jury could find for either party; but that the safest criterion for them would be, to consider whether, from the evidence given as to the situation of the trunk of the tree above the soil, and of the roots within it, they could ascertain where the tree was first sown or planted ; if they thought it was first set in the land of the plaintiff, they would find a verdict for him ; for the defendant, if the tree had originally been set in his. If they could form no opinion on this subject, he would afterwards give them his direction on the questions which they would then lrave to consider.

The jury saying that they could not tell in whose ground the tree first grew, a verdict for the defendant was taken by consent, on terins agreed on between the parties.

Russell, Serjt., and Whitcombe for the plaintiff.
Campbell and Ludlow, Serjt., for the defendant.

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LYMAN v. HALE.
SUPREME COURT OF ERRORS OF CONNECTICUT. 1836.

[Reported 11 Conn. 177.] This was an action of trespass quare clausum fregit, alleging, that the defendant, on the 19th of October, 1835, entered upon the plaintiff's land, described in the declaration, and gathered, carried away and converted to his own use a great number, viz. twenty bushels, of

plaintiff standing upon the land described. On the trial before the County Court, November term, 1835, it was proved and admitted, that at the time of the alleged trespass, the plaintiff owned and possessed the locus in quo; that the defendant, at the same time, as a tenant, was also in the lawful possession of a lot of land adjoining, on the south side, to the plaintiff's land, the latter being raised two or three feet above the former; that a pear-tree then was, and for many years had been, standing and growing on the plaintiff's land, a little more than four feet from the line between his land and that occupied by the defendant; that the trunk of this tree, at the distance of five feet above the ground, was about seventeen inches in diameter, and grew up perpendicularly about eight feet, and then divided itself into several branches, some of which had extended to some distance across the line and over the defendant's land ; and that from these branches the defendant picked and gathered six bushels of pears and converted them to his own use, claiming a right to do so. For the taking and appropriation of these pears, the action was brought.

It was proved, on the part of the defendant, that two of the roots of the tree, one of about two inches in diameter, and the other a little smaller, together with several others from an eighth to balf an inch in diameter, had entered his land.

The plaintiff offered testimony to prove, and claimed that he had proved, that this tree had, for more than twenty-five years, stood in the same situation in which it did at the time of the alleged trespass, and extended its branches, in like manner, over the defendant's land; and that, during all that time, the plaintiff had exclusively gathered and appropriated to his own use the pears from the parts of the tree projecting over the defendant's land, as well as from the other parts, and had the sole use and occupancy thereof, claiming exclusive title thereto; and that neither the defendant, nor those under whom he claimed, had ever gathered the pears, or exercised any right of ownership over the tree, or the fruit thereof, or claimed any title thereto. This claim of the plaintiff was resisted by the defendant.

The plaintiff claimed, that from the facts proved and admitted, the branches of the tree, which extended over the defendant's land and the

pears growing thereon, as well as the other parts of the tree, belonged to him and were his property; and that the defendant had no right to gather the pears from such projecting branches and appropriate them to his own use, as he had done ; and consequently, that the plaintiff was entitled to recover in this action; and he requested the court so to charge the jury.

The plaintiff further claimed, that if from the facts proved and admitted, he had no title to the pears gathered by the defendant, yet if the jury should find, that the plaintiff had, for more than fifteen years next before the alleged trespass, exclusively gathered and appropriated to his own use the pears growing upon the branches projecting over the defendant's land, and exclusively exercised acts of ownership over the tree and such branches, claiming title thereto, he had thereby become the owner thereof, and had the sole property in the pears gathered by the defendant; and requested the court so to instruct the jury. The defendant claimed, that from the facts proved and admitted, he was either the tenant in common or joint owner with the plaintiff, or the exclusive owner of the pears so gathered by him; and that in either case, he had a right to gather them and appropriate them to his own use, and consequently that the action could not be maintained ; and he requested the court so to charge the jury. The defendant also resisted the plaintiff's claim to the pears from fifteen years' exclusive enjoyment, and requested the court to charge the jury in opposition to such claim.

only a right to the soil, but the right, in contemplation of law, includes everything in a direct line upward to the heavens, and everything downwards to the centre of the earth. The owner of the surface of the ground owns all that is over and under it.

“ If a tree stand in the division line between two persons' lands, they are tenants in common of the tree, or are joint owners of it. If one plants a tree near the extreme limits of his land, and the roots do not extend into the land of the adjoining proprietor, he who planted it will own the whole tree, although the branches overhang and overshadow the land of the adjoining proprietor; but if the tree so planted, in growing extend its roots into the land of the adjoining proprietor, whereby it derives a portion of its sustenance from the land of both, they are tenants in common of the tree; and the universal practice in Connecticut has been for each to take the fruit overhanging his own land.

As it regards the usage, or the right by possession, the law is, that to obtain it, the person claiming it is bound to show, by strict proof, that he has had actual, exclusive, uninterrupted, and adverse possession, for the period of fifteen years, under a claim of title. It is also necessary, that the possession should have been definitely marked, and certain, and invariably the same ; and if the possession claimed is land, it must be marked by definite boundaries.

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