CHAPTER IV. 



TREES AND FENCES. 



The general projpeiiy in trees is in the landlord, and that in bushes 

 in the tenant, even where they are cut down by a stranger {Berrmian v. 

 Peacock). Where trees are excepted in a lease, the land on which they 

 grow is necessarily excepted also, and if therefore the tenant cut down 

 the trees the landlord has trespass for breaking his close, and cutting 

 them down {per Prohyn J. ; Rolls v. RocTc). By Liford's case the soil 

 on which timber trees grow is not excepted by the words " all timber 

 trees," but only nutriment out of the land SQfiicient to sustain the 

 vegetative power of the trees. Where, however, there was a lease of 

 the site and demesne of a manor, ^' except is ct semper reservatis omnihus 

 loscis subboscis," &c., it was held that the soil itself was excepted 

 (Whistler v. Pcisloiv). Hence it is observed in a note to Pomfret v. 

 Ricroft, " that there is a distinction between an exception of woods and 

 unclerwoods, and an exception of all timber trees ; for by the former the 

 soil itself on which the woods and underwoods grow is excepted." But 

 it has been held otherwise where the words "woods and underwoods" 

 follow the words " timber and other trees " in the same clause of 

 exception {Leigh v. Heald). "All manner of timber trees and great 

 ivoods" are excepted in a lease, and it was held by three judges out of 

 four, that the phrase did not include underwood or herbage of the 

 woods (1 Dy. 79 a). 



By a general demise of lands on ivhich there are timber trees, without 

 any exception, the timber trees are demised as well as the lands, and in 

 Doe dem. Douglas v. Lock the Court of Queen's Bench considered that 

 the same rule would hold with regard to the tops of trees lilcelg to i^rove 

 timber. 



Where a declaration, as in Hurst v. Hurst, stated that the defendants 

 covenanted that they " would not lop or top ang tree without the assent 

 in writing of the plaintiff, under a penalty of £20 for each tree which 

 should be so lopped or topped, over and above the actual value of the 

 tree," and the breach laid was that the defendants lopped twenty trees 

 of the value of £80, without the consent in writing of the plaintiif, and 



