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(Reported 48 N. Y. 201.] Appeal from judgment of the General Term of the Supreme Court in the Seventh Judicial District, affirming a judgment for the plaintiff en tered on a verdict. The action is for assault and battery. (Reported 46 Barb. 337.)

The facts are these : Dr. Hoffman and the defendant were the owners of adjoining lands, separated by a line fence. There was a cherry tree standing upon the land of Dr. Hoffman with limbs overhanging the land of the defendant. The plaintiff, who was a sister of Dr. Hoffman, and lived with him, went upon the line fence and undertook to pick cherries from a limb of the tree which overhung the defendant's land. He forbade her, and on her still persisting, the defendant attempted to prevent her by force, and did her a personal injury.

The court held, and so charged the jury, that " every person upon whose lands a tree stands owns the whole of that tree, notwithstanding portions of it may overhang the lands of another; and in this case, as it is conceded that the body or trunk of the tree was wholly upon the land of Dr. Hoffinan, he was entitled to all the fruit growing thereon, and hence, if the defendant attempted to prevent the plaintiff from picking such fruit by violence he was a wrong-doer, and this action lies against him. If he touched her at all, with the intention of preventing her from picking the cherries while she was standing on the premises or fence of Dr. Hoffman, although they were upon the limbs overhanging his yard, then this action lies against him, and your verdict should be for the plaintiff."

The defendant excepted to the several legal propositions contained in the charge, and requested the judge substantially to charge that the limbs of the tree overhanging the land of the defendant belonged to him, that he was entitled to the fruit thereon, and that he had the right to prevent the plaintiff from picking it by the application of all necessary force, if she refused to desist after being requested to do so. This was refused, and exceptions were taken to such refusals.

Amasa J. Parker, for the appellant.
II. V. Hovland, for the respondent.

Lort, Ch. C. The only material question presented in this case is, whether the owner of land overhung by the branches of a fruit tree standing wholly on the land of an adjoining owner is entitled to the fruit growing thereon.

The defendant claims that the ownership of land includes everything above the surface, and bases his claim on the maxim of the law, Cujus est solum ejus est usque ad coelum," and that consequently he was the 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 pon 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 other special conversion. Legere in one sense is to gather. If upon evidence to a jury, there a denial is good evidence to prove a conversion, but if he saith that he had locked it up, and brought it into the court, here stabitur presumptioni donec in contrarium probetur ; this is no conversion, if the contrary be not proved." Per COKE, C. J., in Isaack v. Clark, 2 Bulst. 306, 314 (1615).

"If trees grow in my hedge, and the fruit of such a tree hangs over your land, and falls on your land, I can justify the collection of it, if I do not make too long a stay there or break down his (your) hedge. Because ripe fruit naturally falls." Per DODERIDGE, J., in Millen v. Faudry, Latch, 119, 120 (1626).



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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 fern, 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. St. 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 lnst. 302.

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