The Hawaiian gazette., 1871-08-16
Supreme Cour.-JuIy Term, 1871.
THOMAS CLARK VS.. BENJAMIN.

1
This is an action OF trespass for damages resulting
to the plaintiff for injury done By the said defendant
to the real property of the plaintiff between the 18th
day of May and the 18th day of May 1871 in cutting
and carrying away some twenty-thre trees from the
PLAINTIFF land and converting the same to his own
use; and he further alleges that crop of fruit was
injured By the removal of the trees by the defend
ant.
The defendant filed plea of general issue and the
parties waived trial by jury.
The first material question In this case is that of
the boundary line between these adjacent proprie-
tors. A judgment was introduced aud recovered by
the present defendant against the present plaintiff
at the last January term of this Court by which it
appears that the plaintiff in thst suit recovered dam
ages for trespass against the defendant who is now
plaintiff on land near their boundary line and the
Court in that case decided that Kalama's survey
should govern, by which, the boundary line run
through the line of trees
We therefore regard this line as adjudicated and
fixed as between these parties
halama testies that the line directly through
some OF the trees which were cut, but he is unable
to testify how many, but much the larger portion
were on the defendants side Of the line.
1t is in evidence that these trees were planted by
Beniamna within line, but some of these trees
had grown so large as to extend over the line lam
therefore Of opinion that the adjoining proprietors
had an interest in these trees and neither had right
TO remove them without the consent of the other.
1t appears by the evidence that much the larger
portion were on the side of the defendant, which he
had perfect right to cut and carry away. 1t is
contended by the defendant, that although the
roots Of the into yla
it does not give him any title to the trunk OF
the tree. This is undoubtedly true neither does
the extension of the branches over the adjoining
proprietors land give him any right to the trunk;
but in this the trunk of the tree is on the land
of each and therefore each has right in it as the
production of the soil of each.
The PLAINTIFF land had been occupied by several
persons, and the defendant had always maintained
that he had planted the trees and that they were
within his line; one has nterfered with him but
the plaintiff
1t is very evident that he thought they were with
in his line and that he had not entertained the idea
that trees planted his land could by their growth
become in part the property of adjoining propreors
1t is evidently not Of willful trespass, and
have no doubt that it is difficult for the defendant TO
be convinced that trees which he planted on his own
land should ever become the property of the adjoin
ing proprietors by increased size
The cutting and the removal of the trees was an
net unauthorized by the ownership in common and
in violation of the strict legal rights of the plaintiff
g N. H., odiorne VS.. Lyfard, 511.
In the case of Griffin vs. Boxby, II N. H. 459, the
Court say: THAT tree standing directly upon the
line between adjoining owners, so that the line pas
ses through it, is the common property of both par
Ties, whether marked or not, and that trespass will
be if one cuts and destroys it without the consent
Of the other"
In relation TO damages am of opinion that as
he greater portion of the trees were on defendants
and and as very few of those cut were on the line
md none on the plaintiffs land he has not made
'ut case of damage for injury TO the strawberry
bed as a consequence of the removal of the trees.
am not satisfied that the very few trees cut on |
he line would have been any special protection If
Ill the others were removed which clearly belonged
o Beniamana, the defendant
In view of all the circumstances of the case, ad-
udge the damages for the plaintiff at $500"
ELISHA H. ALLEN
Chief Justice Of the Supreme Court
Honolulu, july Is 1871