THE AMATEUR AND HORTICULTURAL LAW. 



27 



liable to a penalty, and the surveyor is authorised to cut or trim any 

 offending trees or hedges himself, the expenses of so doing being made 

 recoverable from the defaulter ; so that a complaint to the local authori- 

 ties is by far the cheapest and most convenient way to obtain redress. 



It is, however, worth noticing that these powers only apply in the case 

 of carriage-ways or cart-ways and not in the case of footpaths. Moreover, 

 trees planted for ornament and for shelter to any hop ground, house, 

 building, or courtyard of the owner thereof are exempted from the 

 operation of this enactment, and it is expressly provided that no person 

 shall be compelled nor any surveyor permitted to cut or prune any hedge 

 at any other time than between the last day of September and the last 

 day of March. 



A question sometimes arises as to who is the owner of a tree standing 

 near a boundary line where this tree grows and expands so as to encroach 

 on to the neighbour's land. If the tree is only growing near the confines 

 of the land of the two parties, then, although the roots may extend into 

 the neighbour's soil, the tree still continues to belong to the owner of that 

 land in which the tree was first sown or planted ; but one learned author 

 lays down that a distinction must be made where a man plants a tree 

 upon the extreme limit of his land so that the tree in the ordinary course 

 will necessarily grow on to the neighbour's land. In this case — that is to 

 say, where the tree is planted on the boundary line itself — the trunk must 

 in the natural course of growth stand and grow on the land of both the 

 man who plants it and on the land of his neighbour, and the roots in 

 such case will inevitably penetrate into the soil of each. It is therefore 

 reasonable to assume that the man who planted the tree must have 

 anticipated and intended this result ; consequently the tree must be 

 deemed to be the common property of the two adjoining owners. The 

 same author is of opinion that it has yet to be judicially decided beyond 

 any question of doubt whether one proprietor can in the absence of an 

 agreement compel another to have his land burdened with the roots of his 

 neighbour's tree. A right of this kind could only be acquired adversely 

 by an enjoyment which was open and as of right. Still, the law not 

 requiring impossibilities but recognising the course of nature, it seems 

 reasonable to suppose that the right in question may be legally acquired 

 by prescription, i.e. adverse enjoyment, and the author in question 

 remained of this opinion although in one reported case the contrary was 

 suggested by one of the Judges. However, this suggestion was by way of 

 obiter dictum only and the point was not actually decided. 



Ditches. 



It may perhaps be of interest to state what is the rule of law with 

 regard to the ownership of ditches where two adjacent fields are separated 

 by a hedge or a ditch. For instance, supposing you have a garden in the 

 country, and at the end of your garden there is a hedge, and beyond the 

 hedge there is a ditch. If there is no evidence to show who is the owner 

 of the ditch the law would assume that you are the owner of it, although 

 it is on the other side of your hedge. At first sight this judgment seems 

 curious, but the rule is arrived at by the following argument : No man 



