them a lease being granted of a farm and divers closes, together with all and all manner of timberwood, underwood, and hedge-rows thereunto appertaining(h), except and always reserved all and all manner of great oaks in one of the closes (by name), and about the farm-house, to hold the farm and closes with their appurtenances, to the lessee for twenty-one years, at an annual rent, it was determined that the lessee had no right to fell any of the timber trees, because (i) they were not severed from the inheritance, and did not pass by the grant: unless trees be excepted out of the demise, or power be reserved to the landlord to enter and fell them, he has no right to cut them down, as the tenant has a special interest(j) in their fruit and shade.

Timber-trees, when blown down, belong to the inheritor, but if dotards(k) or unsound trees, only fit for firewood, be blown down, or felled by the landlord, they become(1) the property of the tenant: underwood is generally considered in nature of a crop, and a tenant cannot be restrained (m) from cutting it in the ordinary course, any more than from cutting a crop of corn; yet a mortgagor in possession, where the security was scanty, has been restrained by injunction from cutting it contrary to the usual course of husbandry. The general property in hedges(n), bushes, and trees, not timber, belongs to the tenant, and where a hedge was cut by a third person, it was ruled that the tenant(o), and not the landlord, had a right to the cuttings: however, if a tenant exceed his right, either by grubbing up or destroying fences, he may be answerable for such waste.

10. Under a lease containing an exception out of the demise of all timber-trees growing on the premises, the lessor retains the exclusive property (p) in such excepted trees, and has a right to enter upon the land, and fell and carry them away, or sell them to another for the same purpose, and such right, though not expressly specified(q) in the

(h) 3 Dyer, 374, B., pl. 18; Lord Darcy v. Askwith, Hob. 234; Hutton, 19; Whitfield v. Bewit, 2 P. Wms. 240; and see Davis v. The Duke of Marlborough, 2 Swa. 123.

(i) 3 Dyer, 374, B. pl. 18, as cited in Liford's case, 11 Rep. 48, A.

(j) Ashmead v. Ranger, 1 Ld. Raym. 552, by Holt, C. J.

(k) Herlakenden's case, 4 Rep. 62, 3rd Resolution; Bowles v. Berrie, 1 Ro. Rep. 181.

(1) Channon v. Patch, 5 B. & Cress. 897; Chapman v. Patch, 8 D. & Ryl. 661.

(m) Humphreys v. Harrison, 1 Jac.

& W. 581; and see Hampton v. Hodges, 8 Vesey, 105.

(n) Com. Dig. Biens, H., Year Book, 22 Hen. VI. fo. 24, pl. 45; 2 Bro. Abr.. 336, Waste, pl. 94.

(0) Berriman v. Peacock, 9 Bing. 384; 2 Moo. & Sc. 524.

(p) Pomfret v. Ricroft, 1 Saund. 322, B., note 5; Ld. Cardigan v. Armitage, 2 B. & Cress. 197-207; 3 D. & Ry. 414, S. C.; Ashmead v. Ranger, 1 ̊ Lord Raym. 552.

(q) Foster v. Spooner, Cro. El. 17; Talbot v. Woodhouse, 2 Lutw. 1480; Wyndham v. Way, 4 Taunt. 318, by Mansfield, C. J.

lease, is incidental to the exception: if the lessee cut down or destroy any of the excepted timber-trees, the landlord may bring an action of trespass() for the injury, but as waste can only be committed on premises included in the demise, an action on the case in nature of waste cannot be maintained and for this reason, it is sometimes prudent to include trees in the demise(s), reserving power to the lessor to enter and cut them, as such an authority will not amount to an exception: the landlord cannot maintain trespass, if the excepted trees be injured by the tenant's cattle(t), as the landlord is bound to provide proper fences, or adequate means for their protection. By a grant of all trees in the manor of Dale(u), apple trees will not pass, nor will fruit trees be excepted(v) out of a demise, by means of general words extending to all trees, woods, coppice, and wood-grounds of what kind or growth

soever.

11. Where trees are not excepted, the lessee has a special interest in them for shade and shelter, and if cut down by the lessor, the tenant can maintain trespass (w) against him for the injury; and the trees being parcel of the inheritance, the lessor may recover damages against the lessee for felling or injuring them, and as both lessor and lessee have an interest in the trees, each of them(x) shall have an action against any third person for cutting them down, and recover damages to the extent of their loss respectively. If trees be felled by lessee for lives or years, or are blown down by storm, or severed by any other accident, the lessee's interest in them will by such severance be absolutely determined, and the person having the first vested estate(y) of inheritance in the reversion may enter and carry them away. On the same principle, a lessee cannot maintain an action(z) against a third person for carrying away trees which have been severed on the demised premises, as such lessee has neither right of property in, nor any legal possession of the timber: the reversioner, however, may support trespass or trover against such wrong-doer(a), if a third person; or an action

(r) Goodright dem. Peters v. Vivian, 8 East, 190; Lord Rich v. Makepeace, 22 Vin. Abr. 441; Noy. 29.

(s) Lushford v. Sanders, Cro. Eliz. 690; 4 Jarm. Conv. 318.

(t) Glenham v. Hanby, 1 Ld. Raym. 739; Clithero v. Higgs, W. Jones, 388.

(u) Bishop of London's case, Year Book, 14 Hen. VIII. fo. 2, by Brudnell; London v. Southwell, Hob. 304; Waller v. Travers, Hard. 309; Whittie v. Weston, Godh. 398.

(v) Wyndham v. Way, 4 Taunt. 316;

Bullen v. Denning, 5 B. & Cress. 842; 8 D. & Ry. 657.

(w) Pomfret v. Ricroft, 1 Saund. 322, B., note 5.

(x) Bedingfield v. Onslow, 3 Lev. 209; Raine v. Alderson, 4 Bing. N. C. 702; and see note 378 to Co. Litt. 57, A., from Hale's MSS.

(y) Herlakenden's case, 4 Rep. 62, B. (2) Evans v. Evans, 2 Campb. N. P. C. 491.

(a) Berry v. Heard, Cro. Car. 242; Palm. 327.

on the case in nature of waste against the lessee(b), as he is answerable for any waste committed on the lands by a stranger or trespasser.

A lease granted without impeachment of waste, confers on the lessee, during its continuance, a right to cut down(c) timber-trees growing on the demised premises, and to convert them to his own use, but if such tenant proceed to commit malicious waste(d), or destruction, equity will interfere by injunction to prevent the mischief. If a tree grow near the confines of adjoining estates, so that the roots extend into the soil of both proprietors, the property in the tree belongs(e) exclusively to the owner of that land in which the tree was first sown or planted.

12. Timber-trees planted on demised premises by the lessee for ornament or shelter, become parcel of the inheritance, and cannot be felled by the tenant, unless authorized by the terms of his lease, or by consent of the inheritor, or by the statute law; and if trees so planted, be severed during the continuance of the demise, the property in them vests in the inheritor. A clause is frequently introduced into leases for years, "excepting and reserving out of the demise, all manner of timber-trees, and other trees then growing, or which at any time thereafter should be standing or growing on the demised premises." As an exception only relates to some existing part(ƒ) of the subject of the demise, it follows that trees which were not(g) in esse at the time of making the lease, but are afterwards planted by the tenant, cannot be comprised in the exception. The words of the exception, so far as they apply to trees growing, or which should thereafter grow, are satisfied, by restricting their meaning to trees growing when the lease was executed, and to trees springing up spontaneously (h) from old stocks.

13. In the absence of express stipulation, a tenant might, by the common law, cut timber growing on demised premises for estovers, to be applied in repairing buildings; but if a larger(i) quantity of

(b) Attersoll v. Stevens, 1 Taunt. 183-202; Berry v. Heard, Cro. Car. 242; 2 Instit. 303.

(c) Lewis Bowles's case, 11 Rep. 82; 1 Ro. Rep. 177; Davis v. The Duke of Marlborough, 2 Swa. 147, and the notes annexed.

(d) Hole v. Thomas, 7 Vesey, 590. (e) Holder v. Coates, Moo. & M. 112, by Littledale, J.; Masters v. Pollie, 2 Ro. Rep. 141; Code Civil, No. 672: Celui sur la propriété duquel avancent les branches des arbres du voisin, peut contraindre celui-ci, à couper ces branch

es. Si ce sont les racines qui avancent sur son heritage, il a droit de les y couper lui-même."

(f) Co. Litt. 47, A.; Shepp. T. 77; 2 Prest. Conv. 462.

(g) Anon. 3 Leon. 29, case 57; 3 Leon. 54, case 79; 3 Leon. 56, case 82; Moor, 94, case 234; Topping v. King, Winch's Rep. 5; and see Chamb. Landlord and Tenant, 345.

(h) Topping v. King, Winch's Rep. 5, by Hobart, Ch. J.

(i) Co. Litt. 53, A.

timber were felled than was required for necessary repairs, or if the timber, after being cut down, were not applied in repairs, or suffered to decay on the ground, it was considered(j) waste. If timber were cut down, and proved unfit for the intended purpose, it was waste to sell it, although other timber was bought with the proceeds and was actually used in necessary repairs; nor was the tenant allowed, by felling timber, to repay himself the money which he had actually expended in repairs on the premises. However, by the Irish Statute(k), 31 Geo. III. c. 40, it is enacted, that no person whatever holding, or who shall hold any lands by lease for one or more lives, or for years, or by will, or sufferance, shall cut down, grub up, lop, or top any tree, wood, or underwood, growing upon the lands so held, under colour of estovers, or of house-bote, plough-bote, hay-bote, cart-bote, or any other bote whatsoever, or under any pretence or cause whatsoever, unless so far as such person shall be authorized thereto by covenant in the lease under which the lands are, or shall be so held, or unless such person shall have the consent of the owner thereof, under hand and seal, for the purpose; but it is provided (7), that nothing therein contained shall extend, or be construed to extend, to any person holding land by virtue of a lease for lives renewable for ever, in respect of such land, or to any trees, wood, or underwood, growing on the same; nor to affect any person in respect of any trees planted and registered in pursuance of any law made for the encouragement of planting.

14. The Irish Statute(m), 5 & 6 Geo. III. c. 17, after reciting, that it is equal to inheritors whether tenants do not plant, or have a property in what they plant, enacts, that from and after the 1st day of September, 1766, tenants for lives renewable(n) for ever, paying the rents, and performing the other covenants in their leases, shall not be impeachable of waste in timber-trees or woods which they shall thereafter plant, any covenants in leases or settlements theretofore(o) made, law or usage to the contrary notwithstanding.

Tenants holding under leases for lives renewable for ever, made prior to September, 1766, although they contain a reservation, or grant, to the reversioner, of trees which should be planted, or a covenant to

(j) Gower v. Eyre, Coop. Cha. Ca. 60; Attorney-Gen. v. Ld. Stawell, 2 Anstr. 601; Lee v. Alston, Bro. Cha. Ca. 37; 1 Vesey, Jun. 78, S. C.; Simmons. Norton, 7 Bing. 641; 5 Moo. & P. 645; Ld. Pembroke's case, Clayton, 47, case 81.

(k) 31 Geo. III. c. 40, s. 1, Irish.

(1) 31 Geo. III. c. 40, s. 5, Irish. (m) 5 & 6 Geo. III. chap. 17, sect. 1, Irish.

(n) The benefit of this Act is extended by the Irish Statute 7 Geo. III. c. 20, s. 11, to persons holding in fee-farm.

(0) Prior to September, 1766.

preserve such trees, are authorized by the Statute to cut down and carry away any trees which were planted by them(p) subsequently to September, 1766, without being punishable for waste, or being liable for breach of covenant, if their rents be paid, (9), and the other covenants in their leases be performed. In like manner, tenants holding under similar leases, made after September, 1766, and not containing any express covenant or stipulation binding the lessee to plant, or to preserve trees which should be planted, have a right to fell and carry away timber-trees planted by them after the execution of their leases. If by an original lease for lives renewable for ever, made after the year 1766, all trees growing at the time of its execution are excepted out of the demise, and the subsequent renewals are made to contain a similar exception by adopting the language used in the original lease, although the exception would apparently extend to, and include all trees planted by the lessee, and growing at the time of renewing the lease, yet it is considered that all trees planted after making the original lease, belong to the tenant, and that the exception in the renewals is only meant to be co-extensive with the exception in the original lease, unless some new agreement on the subject shall be established. The object of the Statute was to give a tenant, enjoying a perpetual interest in lands, the benefit of his labour and expenditure in planting, and a different construction would have the effect of defeating the intention of the legislature. The renewal is granted in pursuance of the covenant for that purpose in the original lease, and does not afford any ground for presuming that the tenant intended to relinquish any right which he previously possessed.

Under a lease made in the year 1789, for three lives with covenant of renewal for ever, saving and reserving thereout all timber and timber-trees, then standing, growing, or being, or(r) at any time thereaf ter to stand or grow, on the demised premises, with full and free liberty of ingress and regress to take and carry away the same, it was decided in the King's Bench, and affirmed on writ of error in the Exchequer Chamber, and in the House of Lords, that the tenant had a right to cut down trees which were planted by himself, and that the clause saving and reserving trees thereafter growing, did not comprise trees which the lessee had planted, and only extended to trees growing from the old stocks which were excepted out of the original demise. If a

(p) Bourke v. Rothwell, 2 Ball & B. 56; and see Percy v. Shanly, 2 Molloy, 515; Conolly v. Ld. Ely, 2 Moll. 515.

(9) Pim v. Davies, 1 Hogan, 11;

White v. Nowlan, 1 Hogan, 22.

(r) Galwey v. Baker, in error, MSS.; 1 West's Appeal Cases, 467; 7 Clarke & Finnelly, 379.