tenant's right to dotards. ]25 



where a lessor during the term cut down two decayed oak pollards 

 growing upon the demised premises, which were only fit for firewood. 

 The third resolution in Herlalcenden^s case, that if trees 'being thnher 

 ivere hloirn down hy the wind the lessor shall have them (for they 

 are parcel of his inheritance), and not the tenant for life or tenant for 

 years; but if they be dotards without any timber in them, the tenant 

 for life or years shall have them, was held to be an authority that this 

 action of trespass against tlie tenant was not maintainable. For if the 

 lessor would have had no right to the trees if they had been severed 

 from the inheritance by the act of God, neither he nor his vendee (the 

 plaintiff), who claimed under him, could have any right to them when 

 they had been severed by his own wrongful act. If these trees had 

 been blown down, they would have belonged to the tenant {Countess of 

 Cumberland's case), and the landlord could not by wrongfully cutting 

 down the trees acquire a right to them, so as to entitle him to maintain 

 trespass against tlie tenant for taking them away. That would be 

 allowing him to take advantage of his own wrong, for the lessee during 

 the terra being entitled to the usufruct of the trees might have main- 

 tained an action on the case against the landlord for wrongfully cutting 

 them down. 



Lord Denman C.J. ruled, in Doe dem Wetherell v. Bird, that a covenant 

 " not to remove or (jruh up or destroy " trees, is broken by removing 

 trees from one part of the premises to another ; and so it is by taking 

 away trees, even if the lessee plant a greater quantity than he takes 

 away, unless those taken away were dead. In Woodliouse v. Sti'ift 

 evidence was given to prove that the timber removed was not wholly 

 sound, that a small part of one tree was rotten, and that four other 

 trees were " shaky," which one of the witnesses said amounted to un- 

 soundness. Alder son J. allowed the plaintiff' to show that the word 

 ^'^ sound" had a technical meaning in the timber trade, but the case 

 failed upon the facts. A tenant for years of a garden has no right to 

 remove a border of box planted by himself; and ParJie J. said it might 

 as well be contended that a tenant could take up hedges {Em])son v. 

 Soden). 



In Michlethwait v. MicJdetliirait an injunction was granted to restrain 

 the defendant, who was under the testator's will tenant for life, without 

 impeachment for waste, of two estates, Beeston and Taverham Hall, 

 within eight miles of each other, from cutting down trees in the avenue 

 or park at Beeston. Wood V.C. did not consider the circumstances of 

 the testator pulling down the mansion at Beeston, where he had ceased 

 to reside 33 years before his death, and felling some of the trees, 

 added to the leasing power in the will over all the real estate, except 



