PROPERTY IN A TREE. 117 



daiit by the Court of King's Bench, Lord Kenyon C.J. said, " This 

 verdict has neither principle nor authority for its support. The defen- 

 dant cannot be in a worse situation by being tenant to the plaintiff of 

 his moiety, tlian he would have been if the plaintiff' had not demised to 

 him, and considered iu that point of view this action ex delicto cannot 

 be supported. If one tenant in common misuse that which he has in 

 common with another, he is answerable to the other in action of mis- 

 feasance. But here it does not appear that the defendant committed 

 anything like waste : no injury was done to the inheritance ; no timber 

 was improperly felled, the defendant only cut those trees that were fit 

 to be cut. And if he were liable in such an action as this, it would 

 have the effect of enabling one tenant in common to prevent the other's 

 taking the fair profits of their estate. In another form of action the 

 plaintiff will be entitled to recover a moiety of the trees that were cut" 

 (I Ld, Raym. 737 ; B. N, P. 85 ; 2 Roll. Rep, 255). 



The following rule was laid down in Waterman v. Soper as to the 

 properti/ in a tree. If A, plants a tree upon the extremest limits of his 

 land, which in course of time extends its root into the land of B. next 

 adjoining. A, and B, are tenants in common of the tree ; but if all the 

 root grows into the land of A., though the boughs overshadow the land 

 of B., yet the branches follow the root, and the property of the whole is 

 in A, This question was re-opened in Holder v, Coaies. There the 

 plaintiff's and defendant's land adjoined, the former being the higher of 

 the two, and the plaintiff's hedge separated them, standing on the edge 

 of the plaintiff's ground, on the bank or declivity descending to that of 

 the defendant. The trunk of the tree stood in the defendant's land, but 

 some of the lateral or spur roots grew into the land of both parties, and 

 evidence was given on the part of the plaintiff to show that there was 

 no tap root, and that all the principal roots from which the tree derived 

 its main nourishment were those which grew into the plaintiff's land. 

 The defendant, on the contrary, gave evidence that there was a tap root, 

 growing entirely in his land, and that the spur roots grew alike in the 

 lands of both parties ; and urged that at all events he was a tenant in 

 common of the tree, and that trespass could not be supported, according 

 to the rule in Waterman v. Soper. Littledale J. said that there was 

 another case on the subject, Masters v. Pollie, in which it was considered 

 that if a tree grows in A.'s close, though the roots grow in B.'s, yet the 

 body or main part of the tree being in A.'s soil, all the residue of the 

 tree belongs to him, and he intimated to the jury that he thought this 

 doctrine the preferable one of the two. His lordship then advised them 

 to ascertain if possible in whose land the tree w^as first sown or planted. 

 The jury said they could not tell, and a verdict for the defendant was 



