I. The ordinary and usual mode of subdivision. Presumption as to ownership of the underlying strata and of the space above the surface. Effect of this rule on things in such space.

Hoffman V. Armstrong

48 New York, 201. - 1872.

Action for assault and battery. Appeal from judgment for plaintiff.

Certain branches of a cherry tree on Dr. Hoffman's land overhang the lands of defendant. Plaintiff, a member of Dr. Hoffman's family, went upon the line fence and undertook to pick the cherries from such overhanging limbs. Defendant forbade her and, as she persisted in her attempt, he tried to prevent her by force and did her a personal injury.

The court below charged the jury, that "every person upon whose lands a tree stands owns the whole of that tree, notwithstanding portions of it may overhang the lands of another; * * * and is entitled to all the fruit growing thereon," and that one who interferes forcibly with his attempt to gather the fruit is a wrongdoer. Defendant excepted to this and asked the judge to charge in substance that the limbs of the tree overhanging the lands of defendant belonged to him and that he was entitled to the fruit thereon and had a right, by the use of all necessary force, to prevent plaintiff from picking it. This was refused and defendant excepted.

Lott, Ch. C. - The only material question presented in this case is whether the owner of land overhung by the branches of a fruit tree standing wholly on the land of an adjoining owner is entitled to the fruit growing thereon.

The defendant claims that the ownership of land includes everything above the surface, and bases his claim on the maxim of the law, "Cujus est solum ejus est usque ad caelum," and that, consequently, he was the owner of the overhanging branches and the fruit thereon. The general rule unquestionably is, that land hath in its legal signification an indefinite extent upward, including everything terrestrial, not only the ground or soil, but everything which is attached to the earth, whether by the course of nature, as trees, herbage, and water, or by the hands of man, as houses and other buildings. See Co. Litt. 4 a; 2 Black. Com. 18; 3 Kent's Com. p. 401; 2 Bouvier's Ins. sec. 1570.

This rule, while it entitles the owner of the land to the right to it, and to the exclusive use and enjoyment of all the space above it, and to erect any superstructure thereon that he may see fit - and no one can lawfully obstruct it to his prejudice - yet if an adjoining owner should build his house so as to overhang it, such an encroachment would not give the owner of the land the legal title to the part so overhanging. It would be a violation of his right, for which the law would afford an adequate remedy, but would not give him an (ownership or right to the possession thereof. See Aiken v. Benedict, 39 Barb. 400.

Although different opinions have been held as to the rights of owners of adjoining land in trees planted, the bodies of which are wholly upon that of one, while the roots extend and grow into that of the other and derive nourishment therefrom, it was considered by Allen, J., in giving the opinion of the Court in Dubois v. Beaver, 25 N. Y. Rep. 123, etc., that the tree is wholly the property of him upon whose land the trunk stands. This principle is sustained in Masters v. Pollie, 2 Rol. Rep. 141; Holder v. Coates, 1 Moody & Malkin, 112, 22 E. C. L. R. 264.

The ground or reason assigned in those cases for holding that the owner of land on which no part of a tree stands, but into which the roots extend, has any interest, is that the tree derives its nourishment from both states, and not the ground or maxim on which the defendant's claim is based.

We have not been referred to any case showing that where no part of a tree stood on the land of a party, and it did not receive any nourishment therefrom, that he had any right therein, and it is laid down in Bouvier's Institutes (section 1573), that if the branches of a tree only overshadow the adjoining land, and the roots do not enter into it, the tree wholly belongs to the estate where the roots grow See also Masters v. Pollie, 2 Rol. Rep. 141; Waterman v. Toper, 1 Ld. Raymond, 737.

The rule or maxim giving the right of ownership to everything above the surface to the owner of the soil has full effect without extending it to anything entirely disconnected with or detached from the soil itself.

It follows, from the views above expressed, that the ruling of the judge at the Circuit was right, and the judgment appealed from must be affirmed, with costs.

Judgment affirmed.1

Grandona V. Lovdal

70 California, 161. - 1886.

Action to compel defendant to remove a certain line of trees on or near the boundary of his land and lands of plaintiff and to recover damages alleged to have been caused by their existence during the preceding four years. Defendant demurred to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action; that several causes of action were improperly joined and not separately stated, and that it was ambiguous, unintelligible and uncertain as not specifically stating the amount of the several items of damage. Demurrer sustained and judgment for defendant. Plaintiff appeals.

McKinstrv, J. - The court below sustained a demurrer to the complaint. "Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off or have his action for damages, and an abatement of the nuisance against the owner or occupant of the land on which they grow, but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil." Wood on Nuisances, sec. 112, citing Commonwealth v. Blaisdell, 107 Mass. 234; Commonwealth v. McDonald, 16 Serg. & R. 390.