]10 WASTE OF TIMBER. 



tliei-eupon became liable to pay such £80, and also the further sura of 

 £20 for each tree so lopped, being the amount of penalties so incurred 

 and forfeited ; it was held by the Court of Exchequer that assuming the 

 £20 penalty to be liquidated damages, the plaintiff could not recover it 

 on this breach, inasmuch as it did not allege that the penalty was not 

 paid. It is a question for the jury whether the cutting done to a tree 

 is a lopping within the meauhig of the covenant {Lowe v. Peers). 



Timber while standing is part of the inheritance : but whenever it is 

 severed, either by the act of God, as by tempest, or by a trespasser, and 

 by wrong, it belongs to him who has the first estate of inheritance, 

 whether in fee or in tail, who may bring trover for it ; and this was so 

 decided upon occasion of the great windfall of timber on the Cavendish 

 estate per Lord Talbot C. {Beioiclc v. Whitfield). A tenant in tail after 

 possibility of issue extinct is entitled to the timber he cuts (Wilh'ams v. 

 Williams) ; but a tenant in tail expectant on the determination of an 

 estate for life, without impeachment of waste, cannot recover in trover 

 for timber which grew upon, and had been severed from the estate, 

 because such an action must be founded on the property of the plaintiff, 

 whereas a tenant for life without impeachment of waste has a right to 

 the trees the moment they are cut down (Fyne v. JDor). The right to 

 trees severed by the tenant of a copyhold or customary freehold hprimd 

 facie in the lord, and in general he may maintain trover for them when 

 so severed (Ladi/ Fleminrj v. Simpson). And so where large masses of 

 rocks had fallen ii'om time to time, and from beyond the time of memory, 

 from some cliffs above, which did not belong to the lord of the manor, 

 into the field of a copyholder, which was within the manor, and the 

 copyholder had removed portions of them from his field, and sold them, 

 he was held by the Court of Exchequer to be liable for so doing in an 

 action of trover by the lord, as they had become a portion of the soil, 

 there being no evidence to show that they had fallen since the copy- 

 holder was admitted. And p)cr Parlce B. : " He may remove them for 

 the benefit of his agriculture, but it is a different thing if he proceeds to 

 sell ; though a copyholder may cut down trees for purposes of repair, 

 the lord may bring trover, if he sells them " {Deardm v. Evans). 



Although no action of waste lies where there is an intermediate estate, 

 yet if waste be done by felHng timber trees, the person entitled at that 

 time to the inheritance in fee or in tail may seize them, or bring an 

 action of trover for the recovery of them. A tenant lor life has but a 

 special interest in the trees growing on the land, so long as they are 

 annexed to it ; but if he or any one else severs them from the land, his 

 interest in them is determined thereby, and they become the property 

 of the o^-ner of the inheritance. But the words " wilkout impeacliment of 



