Summary
In Hoffman v. Armstrong, 46 Barb. (N.Y.) 337, it was said: `If the branches of the tree which overhung the defendant's land were a nuisance, his remedy was an action for the damages.
Summary of this case from Smith v. HoltOpinion
Argued September 21st, 1871
Decided January term, 1872
Amasa J. Parker for the appellant.
H.V. Howland for the respondent.
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., 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), 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 cases 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.
All concur.
Judgment affirmed.