Lyman v. Hale

| Conn. | Jun 15, 1836

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 join towners, or tenants in common, of the tree in controver. sy.

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 consequence 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 chieflyrelies. 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. l. 30. Rex v. Pappineau, 2 Stra. 688. Cooper v. Marshall, I Burr. 267. Welsh v. Nash, 8 East, 394. Dyson v. Collick, 5 Barn & Ald. 600. (7 Serg. & Lowb. 205.) 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 has been argued in this court. We are to enquire, then, whether this ground be tenable. The only cases relied upon, in support of the principle, are, the case 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 wheth er 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”&emdash;that is, on the utmost point or verge, of A’sland. Is it not then fairly inferable, from the statement of the case, that the tree, when grown, stood in the dividing line? And in the case cited from Rolle, the tree stood in the hedge, 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 other way.

How, it may be asked, isthe 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 enquiry, 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 acertain proportion of the whole. In what proportions do the respective parties bold ? 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 set tled 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 controuling 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 treebelongs to him.The authority of this case is recognised and approved, by Littledale, J., in the case of Holder v. Coates, 1 Moo. & Malk. 112. (22 Serg. & Lowb. 264.) 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 Waterman 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 his favour.

It isurged, that land comprehends every thing 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 has 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. Arid the charge to the jury proceeds on the ground that he has a right so to do. Now, if these branches 1 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. 125" court="Conn." date_filed="1828-06-15" href="https://app.midpage.ai/document/beardslee-v-french-6574200?utm_source=webapp" opinion_id="6574200">7 Conn. Rep. 125. Welsh v. Nash, 8 East 394. Dyson v. Collick, 5 Barn.& Ald. 600. (7 Serg. & Lowb. 205.) 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. Newson,) and the general understanding and practice in Connecticut among adjoining proprietors.

Judgment reversed.