were not erected at the time the dower was set off, but at some antecedent period, and for some purpose not known or explained.

As the monuments in this case were marked at the time by the committee, and intended to designate the land set off, we are of opinion that this constituted an actual location, and that they must control the course mentioned in the return. Brown v. Gay, 3 Greenl. R. 126; Ripley v. Berry, 5 Greenl. 24; Esmond v. Tarbox, 7 Greenl. R. 61; Thomas v. Patten, 13 Me. R. 329; Prescott v. Hawkins, 12 N. H. 20, 26; and see 1 U. S. Digest, 474. The evidence offered tends to show that the parties understood that the line was marked and established by monuments, and acted with reference to that fact; which strengthens the case, and shows the propriety of the rule. Jackson v. Ogden, 7 Johns. R. 241; Clark v. Munyan, 22 Pick. R. 410.

As to the second question: in Waterman v. Soper, 1 Ld. Raym. 737, cited for the defendants, Holt, C. J., ruled that if A. plants a tree on the extremest limits of his land, and the tree growing extend its root into the land of B., next adjoining, A. and B. are tenants in common of this tree, and that where there are tenants in common of a tree, and one cuts the whole, though the other cannot have an action for the tree, yet he may have an action for the special damage by this cutting. What action he shall have is not stated, nor is it quite clear that such an ownership can be established, if the root merely extend into the other's land.

But in Co. Lit. 200 b, it is said, "If two tenants in common be of land, and of mete stones, pro metis et bundis, and the one take them up and carry them away, the other shall have an action of trespass quare vi et armis against him, in like manner as he shall have for the destruction of doves."

And in Cubitt v. Porter, 8 B. & C. 257, it was held that "the common user of a wall separating adjoining lands, belonging to different owners, is prima facie evidence that the wall, and the land on which it stands, belong to the owners of those adjoining lands in equal moieties, as tenants in common;" and "where such an ancient wall was pulled down by one of the two tenants in common, with the intention of rebuilding the same, and a new wall was built, of a greater height than the old one, it was held that this was not such a total destruction of the wall as to entitle one of the two tenants in common to maintain trespass against the other."

It seems to have been admitted that for an entire destruction of the wall by one, trespass miglit have been sustained.

Without going to the extent of the ruling in Lord Raymond, we are of opinion that a tree standing directly upon the line between adjoining owners, so that the line passes through it, is the common property of both parties, whether marked or not, and that trespass will lie if one cuts and destroys it without the consent of the other. See cases cited

in Odiorne v. Lyford, 9 N. H. Rep. 511.1

1 See Robinson v. Clapp, 65 Conn. 365, 67 Conn. 538.

HOFFMAN v. ARMSTRONG.

COMMISSION OF APPEALS OF NEW YORK.

[Reported 48 N. Y. 201.]

1872.

APPEAL from judgment of the General Term of the Supreme Court in the Seventh Judicial District, affirming a judgment for the plaintiff entered on a verdict. The action is for assault and battery.

46 Barb. 337.)

(Reported

The facts are these: Dr. Hoffman and the defendant were the owners of adjoining lands, separated by a line fence. There was a cherry, tree standing upon the land of Dr. Hoffman with limbs overhanging the land of the defendant. The plaintiff, who was a sister of Dr. Hoffman, and lived with him, went upon the line fence and undertook to pick cherries from a limb of the tree which overhung the defendant's land. He forbade her, and on her still persisting, the defendant attempted to prevent her by force, and did her a personal injury.

The court held, and so charged the jury, that " every person upon whose lands a tree stands owns the whole of that tree, notwithstanding portions of it may overhang the lands of another; and in this case, as it is conceded that the body or trunk of the tree was wholly upon the land of Dr. Hoffman, he was entitled to all the fruit growing thereon, and hence, if the defendant attempted to prevent the plaintiff from picking such fruit by violence he was a wrong-doer, and this action lies against him. If he touched her at all, with the intention of preventing her from picking the cherries while she was standing on the premises or fence of Dr. Hoffman, although they were upon the limbs overhanging his yard, then this action lies against him, and your verdict should be for the plaintiff."

The defendant excepted to the several legal propositions contained in the charge, and requested the judge substantially to charge that the limbs of the tree overhanging the land of the defendant belonged to him, that he was entitled to the fruit thereon, and that he had the right to prevent the plaintiff from picking it by the application of all necessary force, if she refused to desist after being requested to do so. This was refused, and exceptions were taken to such refusals.

Amasa J. Parker, for the appellant.

II. V. Howland, for the respondent.

LOTT, Ch. C. The only material question presented in this case is, whether the owner of land overhung by the branches of a fruit tree standing wholly on the land of an adjoining owner is entitled to the fruit growing thereon..

The defendant claims that the ownership of land includes everything above the surface, and bases his claim on the maxim of the law, "Cujus est solum ejus est usque ad cœlum," and that consequently he was the

owner of the overhanging branches and the fruit thereon. The general rule unquestionably is, that land hath in its legal signification an indefinite extent upward, including everything terrestrial, not only the ground or soil, but everything which is attached to the earth, whether by the course of nature, as trees, herbage, and water, or by the hands of man, as houses and other buildings. (See Co. Lit. 4 a; 2 Black. Com. 18; 3 Kent's Com., p. 401; 2 Bouvier's Ins. § 1570.)

This rule, while it entitles the owner of the land to the right to it, and to the exclusive use and enjoyment of all the space above it, and to erect any superstructure thereon that he may see fit, and no one can lawfully obstruct it to his prejudice, yet if an adjoining owner should build his house so as to overhang it, such an encroachment would not give the owner of the land the legal title to the part so overhanging. It would be a violation of his right, for which the law would afford an adequate remedy, but would not give him an ownership or right to the possession thereof. (See Aiken v. Benedict, 39 Barb. 400.)

Although different opinions have been held as to the rights of owners of adjoining land in trees planted, the bodies of which are wholly upon that of one, while the roots extend and grow into that of the other and derive nourishment therefrom, it was considered by Allen, J., in giving the opinion of the court in Dubois v. Beaver, 25 N. Y. Rep. 123, etc., that the tree is wholly the property of him upon whose land the trunk stands. This principle is sustained in Masters v. Pollie, 2 Rol. Rep. 141; Holder v. Coates, 1 Moody & Malkin, 112.

The ground or reason assigned in those cases for holding that the owner of land on which no part of a tree stands, but into which the roots extend, has any interest, is that the tree derives its nourishment from both estates, and not the ground or maxim on which the defendant's claim is based.

We have not been referred to any case showing that where no part of a tree stood on the land of a party, and it did not receive any nourishment therefrom, that he had any right therein, and it is laid down in Bouvier's Institutes (section 1573) that if the branches of a tree only overshadow the adjoining land, and the roots do not enter into it, the tree wholly belongs to the estate where the roots grow. (See also Masters v. Pollie, 2 Rol. Rep. 141; Waterman v. Soper, 1 Ld. Raymond, 737.)

The rule or maxim giving the right of ownership to everything above the surface to the owner of the soil has full effect without extending it to anything entirely disconnected with or detached from the soil itself.

It follows, from the views above expressed, that the ruling of the judge at the Circuit was right, and the judgment appealed from must be affirmed, with costs.

Judgment affirmed.

All concur. NOTE."I cannot see how that a bare denial of a thing detained shall make a conversion: Thumblethorpe's Case, a lessee, at the end of his term, leaves a timber log on the ground; afterwards he demands it. A denial of this, without some other act done,

shall not make a conversion of this, if he doth not remove this, and so makes some other special conversion. Legere in one sense is to gather. If upon evidence to a jury, there a denial is good evidence to prove a conversion, but if he saith that he had locked it up, and brought it into the court, here stabitur presumptioni donec in contrarium probetur; this is no conversion, if the contrary be not proved." Per COKE, C. J., in Isaack v. Clark, 2 Bulst. 306, 314 (1615).

"If trees grow in my hedge, and the fruit of such a tree hangs over your land, and falls on your land, I can justify the collection of it, if I do not make too long a stay there or break down his [your] hedge. Because ripe fruit naturally falls." Per DODERIDGE, J., in Millen v. Fawdry, Latch, 119, 120 (1626).