PART II.

OF LAND AS THE SUBJECT OF PROPERTY.

CHAPTER I.

SUBDIVISION OF LAND FOR PURPOSES OF OWNERSHIP.

I. The ordinary and usual mode of subdivision. Presumption as to ownership of the underlying strata and of the space above the surface. Effect of this rule on things in such space.

HOFFMAN v. ARMSTRONG.

48 NEW YORK, 201.-1872.

ACTION for assault and battery. Appeal from judgment for plaintiff.

Certain branches of a cherry tree on Dr. Hoffman's land overhang the lands of defendant. Plaintiff, a member of Dr. Hoffman's family, went upon the line fence and undertook to pick the cherries from such overhanging limbs. Defendant forbade her and, as she persisted in her attempt, he tried to prevent her by force and did her a personal injury.

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The court below 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 is entitled to all the fruit growing thereon," and that one who interferes forcibly with his attempt to gather the fruit is a wrongdoer. Defendant excepted to this and asked the judge to charge in substance that the limbs of the tree overhanging the lands of defendant belonged to him and that he was entitled to the fruit thereon and had a right, by the use of all necessary force, to prevent plaintiff from picking it. This was refused and defendant excepted.

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. Litt. 4a; 2 Black. Com. 18; 3 Kent's Com. p. 401; 2 Bouvier's Ins. sec. 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, 22 E. C. L. R. 264.

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. Toper, 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.'

ACTION to compel defendant to remove a certain line of trees on or near the boundary of his land and lands of plaintiff and to recover damages alleged to have been caused by their existence during the preceding four years. Defendant demurred to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action; that several causes of action were improperly joined and not separately stated, and that it was ambiguous, unintelligible and uncertain as not specifically stating the amount of the several items of damage. Demurrer sustained and judgment for defendant. Plaintiff appeals.

MCKINSTRY, J.-The court below sustained a demurrer to the complaint. "Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off or have his action for damages, and an abatement of the nuisance against the owner or occupant of the land on which they grow, but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil." Wood on Nuisances, sec. 112, citing Commonwealth v. Blaisdell, 107 Mass. 234; Commonwealth v. McDonald, 16 Serg. & R. 390.

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So, it would seem, he may have abated the roots projecting inte his soil, at least if he has suffered actual damage thereby. The general demurrer should have been overruled. * While we are compelled to hold that the complaint is not subject to general demurrer, nor to a demurrer for misjoinder of actions, we think that it is ambiguous and uncertain.

Judgment affirmed.

1 See also Skinner v. Wilder reported infra, p. 154. — ED.

II. There may be horizontal as well as vertical subdivisions for ownership.

PARSONS, C. J.The plaintiff declares in case upon several promises. The first count is indebitatus assumpsit in the sum of eighty dollars, according to the account annexed to the writ, the items of which are for timber, boards, shingles, nails and labor, and victualling the workmen. The second count is a quantum meruit for the same items, technically supposed to be different but similar. The third count is a general indebitatus assumpsit for eighty dollars laid out and expended.

The facts being agreed by the parties, the question of law comes before the court on a case stated. From this case it appears that the defendant is seized in fee simple of a room on the lower floor of a dwelling-house and of the cellar under it; and that the plaintiff is seized in fee of a chamber over it, and of the remainder of the house; that the roof of the house was so out of repair that unless repaired no part of the house could be comfortably occupied; that the defendant, though seasonably requested by the plaintiff, refused to join with him in repairing it; and the plaintiff then made the necessary repairs, and has brought this action to recover damages for her refusal to join in the repairs. It is also agreed that the parties had from time to time repaired their respective parts of the house at their several expense. And the question submitted to the court is, whether the plaintiff can recover in this action.

This is an action of the first impression. No express promise is admitted; but if there is a legal obligation on the defendant to contribute to these repairs, the law will imply a promise.

We have no statute, nor any usage upon this subject, and must apply to the common law to guide us.

Although in the case the parties consider themselves as severally seized of different parts of one dwelling-house, yet in legal contemplation each of the parties has a distinct dwelling-house adjoining together, the one being situated over the other. The lower room and the cellar are the dwelling-house of the defendant. The chamber, roof, and other parts of the edifice are the plaintiff's dwellinghouse. And in this action it appears that, having repaired his own. house, he calls upon her to contribute to the expense, because his house is so situated that she derives a benefit from his repairs, and would have suffered a damage if he had not repaired.

Upon a very full research into the principles and maxims of the

common law, we cannot find that any remedy is provided for the plaintiff.

Houses for the habitation, and mills for the support of man are of high consideration at common law; and when holden in common or joint tenancy, remedies are provided against those tenants who refuse to join in necessary reparation, by the writ de reparatione facienda. In Co. Lit. 56b, it is said, that if a man has a house so near to the house of his neighbor, and he suffers it to be so ruinous that it is like to fall on his neighbor's house, he may have a writ de domo reparanda, and compel him to repair his house. In Keilway, 98b, pl. 4, there is a case reported, in the time of Henry the Eighth, in which Fineux and Brudenell, justices of the king's bench, were of opinion that if a man have a house underneath, and another have a house over it, as is the case in London, the owner of the first house may compel the other to cover his house, to preserve the timbers of the house underneath; and so may the owner of the house above compel the other to repair the timbers of his house below; and this by action of the case. But some of the bar were of opinion that the owner of the house underneath might suffer it to fall; yet all agreed that he could not pull it down to destroy the house above. And in Fitz. N. B. 296 there is a writ of this kind. But in the case of Tenant v. Goldwin, 6 Mod. 314, Lord Holt was of opinion, that this writ was by virtue of a particular custom, and not of the common law; and he doubted the case in Keilway.

But there is unquestionably a writ at common law de domo repa randa, the form of which we have Fitz. N. B. 295, in which A. is commanded to repair a certain house of his in N. which is in danger of falling, to the nuisance of the freehold of B. in the same town, and which A. ought, and hath been used to repair, etc. This writ, Fitzherbert says, lies, when a man who has a house adjoining to the house of his neighbor, suffers his house to lie in decay, to the annoyance of his neighbor's house. And if the plaintiff recover, he shall have his damages; and it shall be awarded that the defendant repair, and that he be restrained until he do it. But it is otherwise in an action of the case; for there the plaintiff can recover damages only. And there appears no reasonable cause of distinction in the cases, whether a house adjoined to another on one side, or above, or underneath it.

But if the case in Keilway is law, the plaintiff cannot recover; for by that case the defendant could have compelled the plaintiff to repair his house, or compensate her in damages for the injury she had sustained from his neglect to repair it. And he has the like remedy against her.