Litchfield enquirer., 1841-03-04
ERIILT TREES

'"t' Oh the Tents ~ lelknnor1ng pTOpTIe tOrss wheT
irt trees growing IN the land Of one, Overhang Ii
inIid Ut mother. The subject was n TERED to the u
dietary Committee, and when offered, it remark
ed byn Senator, that the difficulty, thoMyh appa remit
be settled. The Committee, however, report that tn
SUBJECT has frequently be en- before the courts III Eng
land and this c"un'ry and although there have beef
y" "dJutcat'ons on The question in this state, the la
IS so we'll settled, that special cssIa lion is needed
We mud by the report, which is very learned aud ella
oorate, that the sut1ect has eiic:,ed mach eon,ro
Nersy among the authorities Of the Roman law al
ottIIe Conuo0 law, and That it was thought Of suiI
rIent Importance to he regulated by distinct enact
nen's' 10y the trainers 81 the Code Napoleon! The
but win be useful to lhUse who NAV have Occason 3,
make Practical application oljt.-BOSOn Advertiser
- g. .. e.. In SENATE, Jan. -, 1871.
The Committee on the Judiciary, who were
directed to consider and report, whether
| any provision by law ought TO be made in
regard 10 the owners Of adjacent lands, as
TO fruit and other trees standing near the
boundary lines of such lands, ask leave to
II .,or-s T. REPORT. .-,.s .., ,.'.'
The question whether any action of the
Legislature is necessary to declare or vary
the rights Of adjoining proprietors, on whose
lands are trees, which, growing on the land
OF one proprietor, overhang the land of, the
other, necessarily involves an inquiry into
the present state of the law upon this subject.
NO case directly involving that law, has
ever, to the knowledge of your Committee,
been decided in this Commonwealth; but
there have been elsewhere decisions sutli.
cient in number, in authority, and in concl,l.
siYeness of reasoning, to indicate what would
be the result if such a case should occur in
our own courts.
There is an apparent discrepancy among
the earlier English authorities in relation to
this subject. Ia the case of Waterman VS..
Soper, Lord Raymond's Reports, 1877, de-
cided in 1897, and in an anonymous case in
2 ROLES Reports, 255, decided in the 10Th
year OF the reign of James l., it was held, that
IT A plant tree upon the EXTREMIST limits of
his land, and the tree growing extend its
roots INTO the land of Is, next adjoining, A
and b are tenants in common Of this tree
But 1t all the root grows in the land of A,
though the boughs overshadow the land Of
b, yetthe branches follow the root, and the
property Of the whole is in A. Probably
from these cases, in connexion with the well
known nlaxim, I" whatsoever owns the
ground, it is his up to the sky,"' originated
the impression which is SO universal among
the people of this Colnmonwealth. that the
proprietor whose land is overhung by fruit
trees, has right to all the fruit on the oyer
hanging branches. ~ ?, 1'9s
But these cases are distinctly, and for good
reasons. overruled by other authorities, both
English and American, -. ',,. ~
la Masters VS.. Polite, 9 ROLES Reports,
l4l, decided in the 18th year Of James l., II
was held that If a tree grow in AS close, tho
the roots grow in BIS soil, yet the body of the
tree being in AS soil, the tree belongs to him;
and this last case is cited with appreciation,
end commented upon as oyerruling The two
in 1927 in which case it was again held,
that "if a tree grows near the Confines Of
land of two parties, SO that the roots extend
into the soil of each, tho property in the tree
belongs to the owner Of that land in which
the tree was first sown or planted" ... ...-,
In Danes Digest, vol. 3, CHI. &c, art. 8,
sec. Is, the case of Waterman vs.. Soper, is
cited, and the compiler states his belief that
the principle Of that case is not adopted in
this country. tof..-.,-,L .....,. .,.r
In Lyman VS.. Hale, IL Connecticut Re-
ports, III, decided in 1886, after an argu-
mcnt in which all the learning of the sub
ject was exhausted, i was held that ~ 2
tree, the trunk of which stands on the land
Of A, extend some of its branches over, and
some Of its roots into, the land Of B, A and
B are not joint owners or tenants in common
Of such tree, but it is, with such oycrhang-
ing branches and, the fruit thereof, the sole
property of A; and il B gather the fruit
from such ovcrhanging branches, and APP
propfiate it TO his own use, he is liable in
trespass to A. III -,.l'.t ...a. .,an,.,i
Your Committee have found no case
where it was ever contended to be law, that
the properly in overhanging branches or
fruit passed to the proprietor OF the land
which they overhung, unless the roots also
drew some part Of their sustcnance from
the same land and it is now well settled
that in all cases the fruit and branches 'fol-
low the settlement" Of the body Of the tree.
The man who allows the branches OF his
tree to overhang. his heighbor's field, I'M
doubleday, commits wrong but he does
not thereby lose his title to those branches,
any more than he would lose his title to his
cattle. by their being found trcspassing,
through his negligence, upon his ncighpor's
field. ,''D ,,'7'...... ......1 IL ,,...s
A proprietor Of land has u right to undis-
turbed possession Of earth and air, from the
limits Of his own ground to the sky; but il
by no means follows that he shall acquire
the ownership of every thing which inter.
rupts or trcspasses upon his possession.
,rhe title, then, TO the whole tree IS in the
proprietor on whose land is the trunk. But
the proprietor who permits his tree to over
shadow or to draw nourishment from his
neighbours land, does that neighbor an in
Jury, and permits nuisance, Tor which
there are obvious and easy remedies. In
Morrice VS.. Baker, 3 Bulstfodr, 1893, decided
in the l4tlI year OF James l., il was remark
ed by Justice Croke. some may cut down
boughs il they hang over his ground" The
| court of Connecticut, in the case of Lyman
VS.. Hale, already cited, held the same doc
trine. The suggestion of Judge Croke is
also quoted az good law by Mr.. Chitty, ar
English law writer of high authority, in his
4 co,,.r,l pr.ct;ca I R5:S uR,it {" hc adds