THE AMATEUR AND HORTICULTURAL LAW, 



21 



of such decisions of the Courts as deal only with the rights of the private 

 lessee one has still to make a further distinction, because these rights vary 

 according to the nature of the property itself. Where a house and 

 grounds of considerable extent, including woods and undergrowth, are held 

 on lease it by no means follows that because a tenant has been held 

 entitled to cut down or lop certain trees in the woods therefore he is 

 entitled to cut down or even lop similar trees which are growing in the 

 private ornamental garden surrounding the house. If, therefore, this 

 paper is to be kept within reasonable limits we must deal only with that part 

 of the law which affects the ordinary private garden attached to a house, 

 and we must eliminate all those cases which deal with the rights of any 

 other class of limited owner. 



Private Gardens. 



Bearing these considerations in mind let us first consider the rights of 

 the private lessee with regard to the trees in his garden. It is sometimes 

 stated in text-books that a tenant (unless restrained by express stipulation) 

 is entitled " to cut down and appropriate aH trees on his holding except 

 timber and fruit trees and such trees as have been planted or left standing 

 for ornament, shelter, or shade." This covers most things growing in a 

 private garden, but to secure strict accuracy one must slightly extend this 

 rule. If accepted without qualification it would lead to the conclusion 

 that a tenant may with impunity cut down all trees outside the above 

 definition — for instance, trees planted as curiosities, or for the purpose of 

 botanical and scientific interest, quickset hedges planted to serve the 

 purpose of a fence, and trees planted as landmarks or to commemorate 

 some event, or to mark the site of a grave of a favourite animal. In my 

 humble opinion the tenant is bound to respect all trees such as those just 

 enumerated, and therefore the rule as stated in the text-books requires 

 some modification. In fact it appears to me that the common-law rule 

 would be more correctly stated as follows : A tenant may not cut down 

 timber or fruit trees, nor trees planted or left standing by his landlord with 

 the intention that they should form a permanent feature of the property, 

 nor any trees whatever planted by the tenant himself ; all such trees 

 come under the head of " fixtures " and must be respected accordingly. 



Any trees which do not fall within any of the above categories 

 (self-sown trees, for instance) might possibly be cut down by the tenant 

 (thus forming an exception to the rule that everything affixed to the land 

 constitutes a fixture), but the class of trees to which this exception applies 

 must obviously be very limited and need only be referred to for the sake 

 of strict accuracy. 



According to the text-books the tenant is also entitled (in the absence 

 of stipulation to the contrary) to lop those trees which are "timber" for 

 necessary repairs of hedges and husbandry implements, and for fuel ; 

 and it is said that he may even cut down the timber trees themselves 

 provided they are required for necessary repairs to houses and principal 

 buildings. These rights to cut wood for repair and firing are known as 

 the tenant's " botes " and are distinguished as house botes, plough botes, 

 hay botes, &c. It is interesting to note that they represent general 



