THE AMATEUR AND HORTICULTURAL LAW. 



23 



order to repair his dwelling, he was not allowed to cut timber trees unless 

 no other kind was available. What trees were meant by timber varied 

 in different parts of the country. The oak, ash, and elm were everywhere 

 regarded as timber, and those exceeding twenty years of age were 

 practically sacred, but in many localities certain other trees (if more 

 than two feet in girth) seem to have been considered legal timber, this 

 probably being accounted for by the fact that in some parts of the 

 country there were not enough oak, ash, or elm trees available for 

 building. For instance, in some parts horse-chestnuts, limes, birch, 

 beech, ash, and walnut trees were regarded as timber. In the county of 

 York birch trees have been held by the Court to be timber, because they 

 are used in that county for building sheephouses, cottages, and such other 

 small buildings. At Mottesfont, in Hampshire, and in Berkshire and 

 Yorkshire willows have also been recognised as timber by the custom 

 of the county. Where beech is admitted to be "timber by custom " it 

 has been held that the general rule of law applicable to timber trees in 

 general attaches, so as to give beech the properties and the privileges of 

 " timber " at twenty years' growth. Beech has been held to be timber by 

 custom of the county in the following places : Buckinghamshire, Buriton 

 in Hampshire, Whitmead in Bedfordshire, Mickleham in Surrey, and 

 Whitcomb Magna and Minchinhampton, both in Gloucestershire. One of 

 the Judges (Lord King) was disposed to think pollards might be deemed 

 timber, provided their bodies were good and sound, but other authorities 

 have sometimes taken a different view. There are various other questions 

 arising with regard to what is known as seasonable wood (technically 

 called silva ccedua), and also underwood, but this leads us into considera- 

 tion of that fascinating branch of law which relates to woods and forests 

 rather than that affecting an ordinary garden, and we must therefore pass 

 it by. 



It may be interesting to note that the word " trees," when used in 

 a lease, is as a rule confined by the Court to wood applicable to buildings 

 and does not include orchard trees. In one case a landlord reserved to 

 himself "all timber trees and other trees, but not the fruit thereof." 

 The Court held that this reservation did not cover fruit trees, for in legal 

 language "fruit" may apply to the produce of timber trees without 

 necessarily dragging in any other kind of fruit. Even an exception in 

 favour of the landlord of " all trees &c, of what kind soever," has been 

 held not to include fruit trees where the surrounding circumstances 

 showed that they were meant to apply to trees only useful for their wood. 



Before leaving the question of ornamental trees it may be well to 

 mention that in deciding the question of "what is an ornamental tree " 

 the sole point is whether the person who planted it intended it to be (or 

 thought it would be) ornamental. In one old case involving the rights 

 of a tenant for life Lord Eldon made some scathing remarks on what he 

 considered to be the execrable taste of a tenant who had cut his yew trees 

 into the shape of peacocks, the matter being made worse by the fact that 

 they were in sight of the road and could be seen by passers-by ! " 



In connection with ornamentation of a garden there is judicial authority 

 for saying that a tenant may build a fishpond in his garden. The reason 

 given by the Court in this old case was a quaint one. It was not a 



