116 TENANTS IN COMMON OF TIMBER. 



for his cattle. A lessee for life or years has only a special interest and 

 property in timber trees so long as they are annexed to the land, and 

 may lop them if the body of the trees is not thereby injured. There- 

 fore if the lessor fells them, the lessee has trespass against him, and will 

 be entitled to recoTer damages adequate to the loss of his particular 

 interest, and also for the entiy into his land. But the interest in the 

 body of the trees remains in the lessor, as parcel of his inheritance, 

 who may punish the lessee in an action of waste, if he fells or damages 

 any of them. The lessee has a general propertij in hedges, hushes, and 

 trees which are not timber, and may have them if he cuts them down. 

 So he may claim dotards, which have no timber in them, if they are 

 thrown down by a tempest, but not trees for which the lessor may have 

 trover {HcrlaTcendcn's case). Where the lease of a farm contained the 

 following exception, " except also all and all manner of timber, timber 

 trees, &c., wood, underwood, topwood, bushes, and thorns, otheo' than 

 such hushes and f horns as shall he necessary for the repairs of the fences ; 

 as well as covenants that the lessee would, during the continuance of 

 the term, keep the gates, &c., and fences belonging to the premises, in 

 a good and proper state of repair, finding all materials except as therein 

 mentioned, the lessor finding rough wood for making such repairs, if 

 growing upon the premises ; and that the lessor would, during the 

 lease, find and provide, if growing on the premises, sufficient rough 

 timber, stakes, and bushes, for doing such repairs, — it was held in 

 Error, PolJoclc C.B. duh., that all trees and all bushes, whether forming 

 part of the fences or not, or necessary for repairs or not, were excepted 

 from the demise ; and as timber trees, though in hedge-rows (and 

 though the body of the tree might form part of the fence), would not 

 probaljly pass to the tenant, but may be cut down by the landlord, 

 leaving the tenant under the obligation to repair the gap thereby made 

 in the i'ences ; so in like manner bushes and thorns might be cut down 

 and removed {Jenny and Eunnacles v. Broolc). 



It was decided in Waterman v. Soper, that if there be two tenants in 

 commoji of a tree, and one cuts the whole tree, the other may not have an 

 action for the tree, but for the special damage sustained by the mis- 

 feasance of cutting, as where one tenant in common destroys the whole 

 flight of pigeons. And according to Martin v. KnoUgs, an action on 

 the case in the nature of waste ivill not lie ly one tenant in common against 

 another tenant in common, fm- cutting trees of a pro2m- age and growth. 

 In this case, the defendant occupied the whole of the land, having a 

 demise fi'om the plaintiff of his moietj'. Heath J. directed a verdict to 

 be taken by the plaintiff for the value of half the trees growing, with 

 leave to move, but the verdict was ordered to be entered for the defen- 



