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“ In this case, the court instruct you, that if you find the roots of the tree extended into the land of the defendant, and the branches overhung it, he had a right to gather the fruit on those branches, unless the plaintiff has acquired an exclusive right by possession.”

The jury returned a verdict for the defendant; and the plaintiff, haring filed a bill of exceptions, brought a writ of error in the Superior Court. The judgment of the County Court was then affirmed; whereupon the plaintiff brought the case before this court, by motion in error.

Ilungerford and Cone, for the plaintiff in error.
Johnson and Chapman, for the defendant in error.

BISSELL, J. This writ of error is reserved for our advice; and the principal question raised and discussed, is, whether, upon the facts disclosed on the record, the plaintiff and defendant are joint owners, or tenants in common, of the tree in controversy.

It is admitted that the tree stands upon the plaintiff's land, and about four feet from the line dividing his land from that of the defendant. It is further admitted that a part of the branches overhang, and that a portion of the roots extend into, the defendant's land. If, then. he be a joint owner of the tree with the plaintiff, he is so in conse. quence of one or the other of these facts, or of both of them united. It has not been insisted on, in the argument, that the mere fact, that some of the branches overhang the defendant's land, creates such a joint ownership. Indeed, such a claim could not have been made, with any well-grounded hope of success. It is opposed to all the authorities, and especially to that on which the defendant chiefly relies. - Thus” (it is said) “if a house overhang the land of a man, he may enter and throw down the part hanging over, but no more ; for he can abate only that part which constitutes the nuisance.” 2 Roll. 144, 1, 30; Rex v. Pappineau, 2 Stra. 688 ; Cooper v. Marshall, 1 Burr. 267; Welsh v. Nish, 8 East, 394; Dyson v. Collick, 5 Barn. & Ald. 600 ; Com. Dig. tit. Action on the case for a nuisance, D. 4. And in Waterman v. Soper, 1 Ld. Raym. 737, the case principally relied on, by the defendant's counsel, it is laid down : “ That if A. plants a tree upon the extremest limits of his land, and the tree growing extend its root into the land of B. next adjoining, A. and B. are tenants in common of the tree. But if all the root grows in 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.”

The claim of joint ownership, then, rests on the fact that the tree extends its roots into the defendant's land, and derives a part of its nourishment from his soil. On this ground, the charge proceeded, in the court below; and on this, the case bas been argued in this court. We are to inquire, then, whether this ground be tenable. The only cases relied upon, in support of the principle, are, the cases already cited from Ld. Raymond, and an anonymous case from Rolle's Reports (2 Roll. 255). The principle is, indeed, laid down in several of our elementary treatises. 1 Sw. Dig. 104; 3 Stark. Ev. 1457 n. ; Bul. N. P. 84. But the only authority cited is the case from Ld. Raymond. And it may well deserve consideration, whether that case is strictly applicable to the case at bar; and whether it carries the principle so far as is necessary to sustain the present defence. That case supposes the tree to be planted on the “ extremest limit” – that is, on the utmost point or verge of A.'s land. Is it not then fairly inferable, from the statement of the case, that the tree, when grown, stood in the clividing line? And in the case cited from Rolle, the tree stood in the heilge, dividing the land of the plaintiff from that of the defendant. Is it the doctrine of these cases, that whenever a tree, growing upon the land of one man, whatever may be its distance from the line, extends any portion of its roots into the lands of another, they therefore become tenants in common of the tree? We think not; and if it were, we cannot assent to it. Because, in the first place, there would be insurmountable difficulties in reducing the principles to practice; and, in the next place, we think the weight of authorities is clearly the other way.

How, it may be asked, is the principle to be reduced to practice? And here, it should be remembered, that nothing depends on the question whether the branches do or do not overhang the lands of the adjoining proprietor. All is made to depend solely on the inquiry, whether any portion of the roots extend into his land. It is this fact alone, which creates the tenancy in common. And how is the fact to be ascertained ?

Again ; if such tenancy in common exist, it is diffused over the whole tree. Each owns a certain proportion of the whole. In what proportion do the respective parties hold? And how are these proportions to be determined? How is it to be ascertained what part of its nourishment the tree derives from the soil of the adjoining proprietor? If one joint owner appropriate all the products, on what principle is the account to be settled between the parties?

Again ; suppose the line between adjoining proprietors to run through a forest, or grove. Is a new rule of property to be introduced, in regard to those trees growing so near the line as to extend some portions of their roots across it? How is a man to know whether he is the exclusive owner of trees, growing, indeed, on his own land, but near the line ; and whether he can safely cut them, without subjecting himself to an action ?

And again ; on the principle claimed, a man may be the exclusive owner of a tree, one year, and the next, a tenant in common with another; and the proportion in which he owns may be varying from year to year, as the tree progresses in its growth.

It is not seen how these consequences are to be obviated, if the principle contended for be once admitted. We think they are such as to furnish the most conclusive objections against the adoption of the principle. We are not prepared to adopt it, unless compelled to do so by the controlling force of authority. The cases relied upon for its support have been examined. We do not think them decisive. We will very briefly review those, which, in our opinion, establish a contrary doctrine.

In the case of Masters v. Pollie, 2 Roll. Rep. 141, it was adjudged, that where 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. The authority of this case is recognized and approved by Littledale, J., in the case of Holder v. Coates, 1 Moo. & Malk. 112. He says: " 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 Wuterman v. Soper ; and I still think so."

The same doctrine is also laid down in Millen v. Fandrye, Pop. Rep. 161, 163; Norris v. Baker, 3 Bulstr. 178; see also 20 Vin. Abr. 417; 1 Chitt. Gen. Pr. 652. We think, therefore, both on the ground of principle and authority, that the plaintiff and defendant are not joint owners of the tree; and that the charge to the jury, in the court below, was, on this point, erroneous.

It is, however, contended, that although the charge on this point was wrong, there ought not to be a reversal, as upon another ground the defendant was clearly entitled to judgment in bis favor.

It is urged, that land comprehends everything in a direct line above it; and therefore, where a tree is planted so near the line of another's close that the branches overhang the land, the adjoining proprietor may remove them. And in support of this position, a number of authorities are cited. The general doctrine is readily admitted ; but it bas no applicability to the case under consideration. The bill of exceptions finds, that the defendant gathered the pears growing on the branches which overhung his land, and converted them to his own use, claiming a title thereto. And the charge to the jury proceeds on the ground that he has a right so to do. Now, if these branches were a nuisance to the defendant's land, he had clearly a right to treat them as such, and as such to remove them. But he as clearly had no right to convert either the branches or the fruit to his own use. Beardslee v. French, 7 Conn. Rep. 125 ; Welsh v. Nash, 8 East, 394 ; Dyson v. Collick, 5 Barn. & Ald. 600; 2 Phill. Ev. 138.

On the whole, we are of opinion that there is manifest error in the judgment of the court below, and that it be reversed.

The other judges ultimately concurred in this opinion; Williams, Ch. J., having at first dissented, on the ground of a decision of the Superior Court in Hartford county (Fortune v. Neroson), and the general understanding and practice in Connecticut among adjoining proprietors.

Judgment reversed.

1 So Skinner v. Wilder, 38 Vt. 115.

GRIFFIN v. BIXBY.
SUPERIOR COURT OF JUDICATURE OF New HAMPSHIRE. 1841.

[Reported 12 N. H. 454.] Trespass, for breaking and entering the plaintiff's close, in Litchfield, November 1, 1838, and on other days, &c.

Plea, the general issue. Hugh Nahor, the former husband of Elizabeth Bixby, who is one of the defendants, was the owner of a farm in Litchfield. Upon his death, her dower in said farm was set off, April 12, 1815, by a committee appointed for that purpose. In the return of the committee they described the southerly line of the tract set off as running from “a pine tree marked, with stones at the root," north 82 degrees east, “ to the east end of said lot." There are acknowledged monuments at each end of this line, but the return of the committee did not designate any intermediate monuments.

The defendants offered evidence, that at the time the dower was set off, the committee in fact surveyed and marked a line through a tract of wood-land, varying somewhat from a straight line, extending further south, and thus including the locus in quo ; and that there has since been a cutting of wood, by the occupants, on both sides, up to this marked line.

The plaintiff derives title from the heirs of Nabor, to the land adjoining the dower, and he contended that this evidence could not be received to control the return of the committee.

There was evidence that a part of the distance between the corners was cleared, and a fence built, which varies from a straight line, but corresponds with the first monument found in the woods.

There was further evidence tending to show that one or more of the trees alleged to have been marked upon the line as monuments, had been cut and carried away.

The questions arising upon the foregoing case were reserved for the consideration of this court.

Farley, for the plaintiff.
J. U. Parker, for the defendants.

Parker, C. J. If the committee had not run out and marked a line when they set off the dower of Mrs. Nahor, the course mentioned in the return must have determined the boundary between the parties ; and parol evidence could not have been admitted to show that there was previously a marked line there, varying from the course, and that the committee intended to adopt that line. Allen v. Kingsbury, 16 Pick. R. 235. But in this case the committee marked a line, and in this respect the present case differs from that just cited, where the monuments were not erected at the time the dower was set off, but at some antecellent period, and for some purpose not known or explained.

As the monuments in this case were marked at the time by the committee, and intended to designate the land set off, we are of opinion that this constituted an actual location, and that they must control the course mentioned in the return. Brovon v. Gay, 3 Greenl. R. 126 ; Ripley v. Berry, 5 Greenl. 24; Esmond v. Tarbox, 7 Greenl. R. 61; Thomas v. Patten, 13 Me. R. 329; Prescott v. Harokins, 12 N. H. 20, 26; and see 1 U. S. Digest, 474. The evidence offered tends to show that the parties understood that the line was marked and established by monuments, and acted with reference to that fact; which strengthens the case, and shows the propriety of the rule. Jackson v. Ogden, 7 Johns. R. 241 ; Clark v. Munyan, 22 Pick. R. 410.

As to the second question : in Waterman v. Soper, 1 Ld. Raym. 737, cited for the defendants, Holt, C. J., ruled that if A. plants a tree on the extremest limits of his land, and the tree growing extend its root into the land of B., next adjoining, A. and B. are tenants in common of this tree, and that where there are tenants in common of a tree, and one cuts the whole, though the other cannot have an action for the tree, yet he may have an action for the special damage by this cutting. What action he shall have is not stated, nor is it quite clear that such an ownership can be established, if the root merely extend into the other's land.

But in Co. Lit. 200 b, it is said, “ If two tenants in common be of land, and of mete stones, pro metis et bundis, and the one take them up and carry them away, the other shall have an action of trespass quare vi et armis against him, in like manner as he shall have for the destruction of doves."

And in Cubitt v. Porter, 8 B. & C. 257, it was held that “ the common user of a wall separating adjoining lands, belonging to different owners, is prima facie evidence that the wall, and the land on which it stands, belong to the owners of those adjoining lands in equal moieties, as tenants in common;” and “ where such an ancient wall was pulled down by one of the two tenants in common, with the intention of rebuilding the same, and a new wall was built, of a greater height than the old one, it was held that this was not such a total destruction of the wall as to entitle one of the two tenants in common to maintain trespass against the other.”

It seems to have been admitted that for an entire destruction of the wall by one, trespass might have been sustained.

Without going to the extent of the ruling in Lord Raymond, we are of opinion that a tree standing directly upon the line between adjoining owners, so that the line passes through it, is the common property of both parties, whether marked or not, and that trespass will lie if one cuts and destroys it without the consent of the other. See cases cited in Odiorne v. Lyford, 9 N. H. Rep. 511.

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