Judgment affirmed.

Dubois V. Beaver

25 New York, 123. - 1862.

Trespass by one of two adjoining landowners against the other for cutting down line trees. Judgment for plaintiff. Defendant appeals.

Allen, J. * * * It is not necessary to determine whether the parties were technically tenants in common of the trees growing upon the boundary lines separating their respective farms, with all the ordinary rights and incidents of such an estate. The trees thus growing are called, in the case, "line trees." By this, I understand, is meant, not trees marked and set apart by the parties as evidences or monuments of the division line, but trees deriving their nourishment from roots extending on both sides of the line, and with bodies so directly over the line, and necessarily on both sides of that line, that it could not be determined upon which side of the line the tree was originally planted; as was the case in Holder v. Coates, 1 Moody & Malkin, 112. Different opinions have been held, as to the rights of the owner of adjoining estates in trees planted, and the bodies of which are wholly upon one, while the roots extend and grow into the other; some holding that, in such cases, the tree, by reason of the nourishment derived from both estates, becomes the joint property of the owners of such estates. Waterman. Soper, 1 Ld. Raym. 737; Griffin v. Bixby, 12 N. H. 454; 2 Bouv. Inst. 158; while others, with better reasons, as it seems to me, hold that the tree is wholly the property of him upon whose land the trunk stands. Holder v. Coates, supra; Lyman v. Hale, 11 Con. 177; Masters v. Pollie, 2 Roll. R. 141; Crabbe on Real Property, sec. 96. The same reasons, and the proprietorship of the soil, would give to the owner of the estate that part of the trunk of a tree which was upon or over his land, when the trunk was divided by the line separating the estates. The ownership of the soil would be several, in the proprietors of the two estates, while the tree, standing and growing partly upon the soil of each, not capable, as an entire thing of several ownership by the two, would be the property of the two in common, and as tenants in common. If a tree grows in a hedge, that divides the land of A. and B., and by its roots takes nourishment in the land of both, they are tenants in common. Anon, 2 Roll. 255; Crabbe's Law of Real Property, supra.

The same difficulty and conflict of opinions upon this branch of the law has also existed in the civil law, and in France the difficulty has been avoided by legislation, and boundary hedges, and the trees in them, are declared to be common property of the owners of the two estates. Note to Holder v. Coates, 22 E. C. L. R. 265. So long as neither can make title upon any principles of right known to the law, to the exclusion of the other, a common property necessarily exists in both, and the rule of the French code is but the rule of the common law resulting from the principle which gives to the owner of the soil an exclusive right to an indefinite extent upward and downward, and which makes trees and bushes, growing and being upon land, a part of the land itself. Trees thus standing upon the boundary line, as mete-stones or monuments set up for marking the boundary line, are not like party walls erected with reference to the usual occupation of adjacent premises. The wall is erected for the use of each, and each may use it, and each owns that which is on his own premises, but there is no tenancy in common. Matts v. Hawkins, 5 Taunt. 20. This case was, however, decided under the party-wall act of 14 Geo. III., c. 78, and it would seem that but for such act the presumption would be that the wall and the land on which it stands belong to the owners of the adjoining lands in equal moieties as tenants in common. Cubitt v. Porter, 8 B. & C. 257.

Ordinarily, trespass will not lie by one tenant in common against his co-tenant, but when one tenant in common ousts his co-tenant, ejectment will lie at the suit of the latter; and when one tenant in common destroys the subject of the tenancy, trespass will lie at the suit of the injured party. Co. Litt. 200a, 200b; Crabbe's Law of Real Property, sec. 2318b; Waterman v. Soper, supra. If one tenant in common destroy the thing in common, as if he grub up and destroy a hedge or prevent his co-tenants of a folding erecting hurdles, tres-pass lies. Browne on Actions, 414; Voyce v. Voyce, Gow. 201; Cubitt v. Porter, supra. If one tenant in common enter upon his co-tenant and oust him of his premises, trespass quare clausum /regit lies for the injury. Erwin v. Olmsted, 7 Cow. 229. Here there was a total destruction of the trees, and the plaintiff had his remedy by action for the wrong done. If the parties were not tenants in common, the defendant was clearly a trespasser in cutting and carrying off that portion which belonged to the plaintiff in realty as being upon his land.

The judgment must be affirmed.

Brackett V. Goddard

54 Maine, 309. - 1866.

Appleton, C. J. - This is an action brought to recover the price of certain logs sold by the defendant to the plaintiff. The claim is based upon an alleged failure of the defendant's title.

The defendant, while owning a lot of land in Hermon, cut down a quantity of hemlock trees thereon. After peeling the bark therefrom and hauling it off the land, he conveyed the lot to one Works, by deed of warranty, without any reservation whatever. At the date of this deed, the hemlock trees in controversy were lying on the lot where they had been cut, with the tops remaining thereon.

The defendant, after his deed of the land to Works, conveyed the hemlocks cut by him to the plaintiff. Works, the grantee of the defendant, claimed the same by virtue of his deed. The question presented is whether the title to the logs is in the plaintiff or in Works.

Manure made upon a farm is personal property and may be seized and sold on execution. Staples v. Emery, 7 Greenl. 301. So, wheat or corn growing is a chattel and may be sold on execution. Whipple v. Foot, 2 Johns. 419. Yet it is held that growing crops and manure, lying upon the land, pass to the vendee of the land, if not excepted in the deed. 2 Kent, 346, or by statute, as in this State by R. S. c. 81, sec. 6, clause 6. Fencing materials on a farm, which have been used as a part of the fences, but are temporarily detached, without any intent of diverting them from their use, as such, are a part of the freehold, and pass by a conveyance of the farm to a purchaser. Goodrich v. Jones, 2 Hill, 142. Hop poles, used necessarily in cultivating hops, which were taken down for the purpose of gathering the crop and piled in the yard, with the intention of being replaced in the season of hop raising, are part of the real estate. Bishop v. Bishop, 1 Kenan, 123.