38 Vt. 115 | Vt. | 1865
The opinion of the court was delivered by
In this case it appears that the plaintiff planted or set apple trees on his own land jspti&Bi. from,j the division line between his land and the defendant’s land ; the trees grew until the roots extended into, and the branches overhung, the defendant’s land. The question is whether the defendant is liable either in trespass on the freehold or in trover for picking, carrying away and converting to his own use, the apples growing on the branches overhanging his own land.
Each party claims to be the sole owner of the fruit in question ; the plaintiff upon the ground that he is the owner of the tree, and the defendant upon the ground that the branches and the fruit thereon overhung his land, and that in virtue of his ownership of his land he owns everything above it. It is true that 'whoever owns
The remaining ground of justification on which the defendant relies is, that he was tenant in common with the plaintiff of the tree, and consequently of its product. A tree standing upon the division
In Masters v. Pollie, 2 Roll. 141, it was adjudged that if a tree grows in A.’s close and roots in B.’s, yet the body of the tree being in the soil of A., all the residue of the tree belongs to him also.
There seems to have been the same conflict of opinion in the civil law on this subject, notwithstanding the law of vicinage and the rights and duties of adjoining proprietors, were by the Roman code defined with much more particularity than by the common law. There is a passage in the Institutes of Justinian that, as it is generally translated, would seem to favor the doctrine of Waterman v. Soper, as claimed by the defendant. After stating that if one sets his plant in another’s ground, it becomes the property of the owner of the land where it is set, after it has taken root, the passage proceeds as follows: “So that if the tree of a neighbor borders so closely upon the ground of Titius as to take root in it, and be wholly nourished there, we may affirm that such tree is become the property of Titius ; for reason doth not permit that a tree should be deemed the property of any other than of him in whose ground it hath rooted; therefore if a tree planted near the bounds of one person, shall also extend its roots into the land of another, it will become common to both.” Instit. 2, 1, 31, (Coop. Just. 79). This passage may have reference only to a tree so near the line as to be regarded as standing substantially upon the line. But however this may be, it is to be observed that the civil law in the days of Rome required a
On the whole we think the weight of authority, reason and analogy, as well as convenience, is in favor of the principle that a, tree.
No importance is attached to the agreement between the plaintiff and the defendant’s grantor as to the distance at which each might set trees ; as the defendant, especially as for ought that appears, purchased without notice of it, and is not bound by such verbal agreement.
Judgment reversed and new trial granted.