AND HORTICULTUIIAL REGISTER. 



PU13LISHEP BY JOSEPH BRECK & CO., NO. 52 NORTH MARKET STREET, (AonicuLTonAi. Warehoose.)— ALLEN PUTNAM, EDITOR. 



vol,. \IA.1 



BOSTON, WEDNESDAY EVENING, FEBRUARY 10, 1841. 



[NO. az. 



N. E. FARMER. 



FRUIT TREES. 



We publish a report made in tlie Senate of this 

 State, on the rights of neighbt)ring proprietors, 

 where fruit trees growing in the land of one, over- 

 hangs the land of another. The subject was re- 

 ferred to the Judiciary Committee, and when otfered, 

 it was remarked by a Senator, that the difficulty 

 though apparently a small one, was frequently re- 

 curring, and ought to be settled. The Committee, 

 however, report that the subject has frequently been 

 before the courts in England and this country, and 

 although there have lieen no adjudication.? on the 

 question in tliis State, the law is so well settled, 

 that no special legislation is needed. We find by 

 the report, wliich is very learned and elaborate, 

 that the subject has elicited as much controversy 

 among the authorities of the Roman law as of the 

 Common law, and that it was thought of sufficient 

 importance to be regulated by distinct enactments, 

 by the framers of the Code Napoleon. The report 

 contains information which is not only curious, but 

 will be useful to those who may have occasion to 



make a practical application of it Boston Daily 



Advertiser. 



In Senate, Jan. 22, 1841. 

 The Committee on the Judiciary, who were direct- 

 ed to consider and report, whether any provision 

 by law ought to be made in regard to the own- 

 ers of adjacent lands, as to fruit and other trees 

 standing near the boundary lines of such lands, 

 ask leave to 



REPORT. 



The question whether any action of the Legisla- 

 ture is necessary to declare or vary the rights of 

 adjoining proprietors, on whose lands are trees, 

 which, growing on the land of one proprietor, over- 

 hang the land of the other, necessarily involves an 

 inquiry into the present state of the law upon this 

 subject. No case directly involving that law, has 

 ever, to the knowledge of your Committee, been 

 decided in this Commonwealth; but there have 

 been elsewhere decisions sufficient in number, in 

 authority, and in conclusiveness of reasoning.', to 

 indicate what would be the result if such a case 

 should occur in our own courts. 



There is an apparent discrepancy among the 

 earlier English authorities in relation to tliis sub- 

 ject. In the case of Waterman vs. Soper, 1 Lord 

 Raymond's Reports, 737, decided in 16:»7, and in an 

 anonymous case in -J. Rolle's Reports, a.5,5, decided 

 in the 20th year of the reign of James I., it was 

 hold, that if A plant a tree upon the extrejnest 

 limits cf his land, and the tree growing extend its 

 roots into the land of B, next adjoining, A and B 

 are tenants in common of this tree. But if all the 

 root grows in the land of A, though the boughs 

 overshadow the land of B, yet the branches follow 

 tlio root, and the property of the whole is in A. — 

 Probably from these cases, in connexion with the 

 well known maxnn, '• Whosoever owns the ground, 

 it 13 his up to the sky," originated the impression 



which is so universal among the people of this 

 Commonwealth, that the proprietor whose land is 

 overhung by fruit trees, has a right to all the fruit 

 on the overhanging branches. 



But these cases are distinctly, and for good rea- 

 sons, overruled by other authorities, both English 

 and American. 



In Masters v.-^. Pollie, 2 Rolle's Reports, 141, de- 

 cided in the 17th year of James I., it was held that 

 if a tree grow in A's close, though the roots grow 

 in B's soil, yet the body of the tree being in A's 

 soil, the tree belongs to him; and this last case is 

 cited with approbation, and commented upon as 

 overruling the two first, in Holder vs. Coates, 1st 

 .Moody and Malkin's Reports, 112, decided in Eng- 

 land in 1827 ; in which case it was again held, 

 that "if a tree grows nerr the confines of land of 

 two parties, so that the roots extend into the soil 

 of each, the properly in the tree belongs to the 

 owner of that land in which the tree was first sown 

 or planted." 



In Dane's Digest, vol. 3, ch. 70, art. 8, sec. 18, 

 the case of Waterman vs. Soper is cited, and the 

 compiler states his belief that the piinciple of that 

 case is not adopted in tliis country. 



In Lyman vs. Hale, 11 Connecticut Reports, 177, 

 decided in 1836, after an argument in which all 

 the learning of the subject was exhausted, it was 

 held that " if a tree, the trunk of which stands on 

 the land of A, extend some of its branches over, 

 and some of its roots into, the land of B, A and B 

 are not joint owners or tenants in common of such 

 tree, but it is, with such overhanging branches and 

 the fruit thereof, the sole property of A ; and if B 

 gather the fruit from such overhanging branches, 

 and appropriate it to his own use, ho is liable in 

 trespass to A. 



Your Committee have found no case where il 

 was ever contended to be law, that the property in 

 overhanging branches or fruit passed to the pro. 

 prietorof the land which they overhung, unless the 

 roots also drew some part of their sustenance from 

 the same land ; and it is now well settled that in 

 all cases the fruit and branches "follow the settle- 

 ment " of the body of the tree. 'Ihe man who al- 

 lows the branches of his tree to overhang his neigh- 

 bor's field, undoubtedly commits a wrong; but he 

 does not thereby lose his title to those branches, 

 any more than he would lose his title to his cattle 

 by their being found trespassing, through his neg- 

 ligence, upon his neighbor's field. 



A proprietor of land has a right to undisturhed 

 possession of earth and air, from the limits of his 

 own ground to the sky ; but it by no means fol- 

 lows that he shall acquire the ownership of every 

 thing which interrupts or trespasses upon his pos- 

 session. 



The title, then, to the whole tree is in the pro- 

 prietor on whose land is the trunk. But the pro- 

 prietor who permits his tree to overshadow or to 

 draw nourishment from his neighbor's land, does 

 that neighbor an injury, and permits a nuisance, for 

 which there are obvious and easy remedies. In 

 Morrice vs. Baker, 3 Bulstrode, lli8, decided in the 

 14*.h year of James I,, it was remarked by Justice 



Croke, " one may cut down boughs if they hang 

 over his ground." The court of Connecticut, in 

 the case of Lyman vs. Hale, already cited, held 

 the same doctrine. The suggestion of Judge 

 Croke is also quoted as good law by Mr Chitty, an 

 English law writer of high authority, in his Gene- 

 ral Practice, 1, 653. " But," he adds, " it would 

 seem that there ought to be a previous request to 

 the neighbor to abate the nuisance, before I pro- 

 ceed to abate it myself" 



It is believed, also, that if the party thus injured 

 or annoyed should prefer not to right himself by 

 taking the law into his own hands, a remedy by 

 action would be open to him. The books are full 

 of analogous cases, in which the party injured has 

 sometimes adopted the one and sometimes the oth- 

 er, of these two modes of redress. Thus in 2 

 Sulkeld, 459, and in Clark vs. Penruddock, 5 Coke, 

 101, 102, the cases of "one building his house so 

 as to overhang mine," and of " one building a house 

 so near mine as to throw water upon mine," are re- 

 ferred to as cases of nuisances which are subject 

 to be removed by force without the intervention of 

 legal proceedings ; and on the other hand, the 15th 

 of Mass. Reports, 280, Siimner vs. Finegan, pre- 

 sents a case where an action was sustained against 

 the defendant, for suffering the spouts of his house 

 to be leaky, to the plaintiff"'s damage. A case 

 more directly in point is that of Pickering vs. Rudd, 

 4 Campbell's Reports, 220, decided in 181.5, where- 

 in it was held that when the defendant nails to his 

 own wall a board which overhangs the plaintiff's 

 close, an action of trespass on the case will be sus. 

 tained against the defendant. 



On the question, whether the proprietor of over- 

 hanging fruit has a right to pick it up after it has 

 dropped on his neighbor's land, the law is perhaps 

 somewhat unsettled. In Mitten vs. Fandrye, Pop- 

 ham's Reports, 1G2, decided in the 22d year of 

 James I., Judge Doderidge quotes with approba- 

 tion a case from the year books, 8th ed. IV., to the 

 following effect: " If a tree grow in a hedge, and 

 the fruit fall into another man's land, the owner 

 may fetch it in the other man's land. But in An- 

 thony vs. Haney, 7 Bingham's Reports, 19J, decid- 

 ed in 1632, the Court limit the operation of this 

 rule to cases where fruit may thus fall by accident ; 

 and Chitty, in his General Practice, cites this last 

 case as modifying and settling the law upon this 

 point. Whether fruit falling at its maturity from 

 an overhanging branch can be considered as com- 

 ing within this rule of accident, or whether license 

 to gather must not be presumed in the absence of 

 notice to remove the nuisance, are questions which 

 the other ascertained rights and remedies of the 

 proprietor who is intruded upon, make of very lit- 

 tle practical importance. 



The Committee believe that the law on this sub- 

 ject, as they have stated it, though perhaps widely 

 different from the common belief, will yet be found 

 so equitable in its principles and so fair in its ope- 

 rations, as to call for no action of the Legislature. 

 They liave gone the more minutely into its details, 

 as they have reason to believe that ignorance of 

 the real state of the law and the exact rights of 



