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 boundary of five feet to be left between farm and farm, or rather between the trees of the two adjoining proprietors, except in the case of an olive or a fig tree, where a space of nine feet was required. It is evident that the passage above quoted has reference to trees set within the prohibited distance from the extreme boundary line. There might be more reason in saying if a party set his tree on the extreme limit of his land, in violation of express law, that the adjoining proprietor should become tenant in common of the tree, than if no such legal regulation existed, or if the tree was set no nearer the division line than the law prescribed. On the other hand, it is laid down in another book of the civil law, that such tree extended its roots into the land of the adjoining proprietor, is nevertheless the property of him in whose land it had its origin. Dig. 47, 7, 6, 2. This is the rule recognized by Littledale, J., in Holden v. Coates. This rule generally would lead to the same result as the rule that the tree belongs to him on whose land the trunk or body of the tree is situated; as a tree would naturally be supposed to grow where it was set or planted. Yet in the case last cited the jury were unable to find on whose land the tree was planted, although the trunk of the tree was on the defendant's land, because the court told the jury to determine it from the evidence as to the situation of the trunk of the tree above the soil, and of the roots within it. Domat, in treating this subject, attributes no consequence to the setting of a tree nearer the division line than the law allows, except that the party thus offending may be compelled to remove it and pay the damages. He does not intimate that the tree thereby becomes the common property of the two adjoining proprietors. I Domat, Civil Law, 589, tit. 6, sec. 1, art. 2; 591, sec. 2, art. 1; Cooper's Justinian, 460, notes. The civil law on the whole is rather in favor of the plaintiff, and is more in accordance with Masters v. Pollie. The civil code of France regulates the subject by declaring the boundary hedges and the trees within them, with some exceptions, common property. The civil law cannot be referred to as authority, and can have no bearing unless for its reason, and then only on a question not settled by the common-law.

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 and its products is the sole property of him on whose land it is situated; and that considering the necessary uncertainty of evidence as to the location and extent of the roots of a tree, its location and property should be determined by the position of the trunk or body of the tree above the soil, rather than by the roots within or branches above it. But even if a tree standing with its trunk at the extreme limit of one's land, with the main roots extending immediately into the soil of the adjoining proprietor, should be regarded as so far substantially upon the line as to become common property, it cannot be so regarded in relation to the tree in question, situate six feet from the division line.

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 aught that appears, purchased without notice of it, and is not bound by such verbal agreement.

Judgment reversed and new trial granted.

Hoffman V. Armstrong

48 New York, 201. - 1872.

[Reported herein at p. 97.]

Purner V. Piercy

40 Maryland, 212. - 1874.

Stewart, J., delivered the opinion of the court. - * * * There then remained but the fifth count, upon which the plaintiff could recover, which alleged the purchase from the plaintiff by the defendant of the fruit growing in his peach orchard, and that the defendant took possession thereof and carried it away. We think the jury were clearly and correctly instructed by the granting of the plaintiff's prayer. * * * *

But the defendant's counsel insists that the contract was invalid under the operation of the fourth section of the statute of frauds. That section provides that no action shall be brought to charge any person upon any contract or sale of lands, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing, etc.

Agreement and contract seem to be considered in the section of the same purport, and the appellant's counsel insists the contract or agreement relied upon here to charge the defendant is for lands, or some interest in or concerning them, and therefore not to be established by parol proof.