INTEREST IN TIMBER OF LESSOR AND LESSEE. 115 



was a proviso for re-entry in case the lessee should commit any waste 

 by any of the means aforesaid. He, however, cut down trees which it 

 ivas necessarij to remove in, order to ivork the quarries, and the Court oi 

 Common Pleas held that this was not a breach of the covenant working 

 a forfeiture, and that the covenant meant that the lessee was not to cut 

 down the trees excepted so as that the cutting should amount to an 

 excess of the rights which it was intended that he should exercise. 

 The case, Coiirthorpe v. Maplesden, in which the Court of Chancery 

 granted an injunction against a trespasser cutting timter i?j cotlusion 

 v'ith the tenant, is the strongest case in which it has interfered to re- 

 strain waste, and there is no case in which it has interfered to restrain 

 the acts of a mere trespasser ; but seml)Ie, if the acts complained of are 

 such flagrant acts of malicious waste as to indicate fraud, that would be 

 a case for interference ; 'pc^' Wood V.C. {Earl Talbot v. Hope Scott), 

 And a party in possession of lands and proceeding to cut timber waste- 

 fully, will be restrained by injunction from doing so at the instance of 

 another claiming under a title at law {Neale v. Gripps). 



The trustees of an estate pur autre vie cannot bring trover for trees 

 felled on the estate ; they have a special property in them while standing, 

 but on severance they belong to the owner of the inheritance {BlaJcer v. 

 Anscomte). But a lessor has such a possession of timber cut down 

 during the continuance of a lease as to maintain trover for it, for a 

 lessee's interest in the timber determines upon severance [Berry v. Herd), 

 a case which Lawrence J. cited in Gordon v. Harper, as decisive upon 

 this point. So he may maintain trover for harlc of trees cut, and for the 

 trees though they be cut into boards, for the jDrincipal substance re- 

 mains. The landlord of a tenant from year to year, though there is no 

 reservation of the timber on the premises, may support trespass vi et 

 arjnis against a third person for carrying it away after it has been cut 

 down ( Ward v. Andrews). Lawrence J. decided in Evans v. Evans that 

 the tenant for years could not maintain trespass de ion asp for timber 

 cut down on the demised premises ; he had no property or interest what- 

 soever in the trees after they were severed from the freehold, and they 

 were then in the legal possession of the reversioner, and he alone could 

 maintain trespass for the asportation. Where the trees are excepted in 

 the lease, the lessee has no manner of interest whatever in them, and 

 the lessor may have an action for trespass against him if he either fells 

 or damages them (Ashniead v. Rcmger, 1 Ld. Eaym. 552). 



Where there is no exception of them in the lease, loth lessor and lessee 

 have an interest in the trees, and therefore if a stranger cuts them down, 

 each of them shall have an action against him to recover their respective 

 loss : the lessee in respect of his loss of their mast and fruit and shade 



