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profits of the tree, than any special property in the tree. But about words we will not differ.

So as I conclude this part, that the reason and wisdom of law doth match things as they consort, ascribing to permanent states permanent interest, and to transitory states transitory interest; and you cannot alter this order of law, by fancies of clauses and liberties, as I will tell you in the proper place. And therefore the tree standing belongs clearly to the owner of the inheritance.

Now come I to my second assertion; that by the severance, the ownership or property cannot be altered, but that he that had the tree as part of the inheritance before, must have it as a chattel transitory after. This is pregnant, and followeth of itself, for it is the same tree still; and, as the Scripture saith, uti arbor cadet, ita jacet.

The owner of the whole must needs own the parts; he that owneth the cloth owneth the thread, and he that owneth an engine when it is entire owneth the parts when it is broken; breaking cannot alter property.

den's case.

And therefore the book in Herlackenden's case doth not stick Herlackento give it somewhat plain terms, and to say that it were an absurd thing, that the lessee which hath a particular interest in the land, should have an absolute property in that which is part of the inheritance: you would have the shadow draw the body, and the twigs draw the trunk. These are truly called absurdities. And therefore in a conclusion so plain, it shall be sufficient to vouch the authorities without enforcing the reasons.

And although the division be good, that was made by Mr. Heath, that there be four manners of severances, that is, when the lessee fells the tree, or when the lessor fells it, or when à stranger fells. it, or when the act of God, a tempest, fells it, yet this division tendeth rather to explanation, than to proof: and I need it not, because I do maintain that in all these cases, the property is in the lessor.

ments of

damages,

And therefore I will use a distribution which rather presseth Three argu. the proof. The question is of property. There be three property, arguments of property, damages, seisure, and grant: and according to these I will examine the property of the trees by the authority of books.

And first for damages.

For damages, look into the books of the law; and you shall

seisure, and grant.

power to

44 E. 3. f. 27.

? E. 4. f. 35.

44 E. 3. f. 44.

38 Ass. f. 1.

E. 4. f. 100.

not find the lessee shall ever recover damages, not as they are a badge of property; for the damages which he recovereth are of two natures, either for the special property (as they call it), or as he is chargeable over. And for this to avoid length I will select three books, one where the lessee shall recover treble damages, another where he shall recover but for his special property, and the third where he shall recover for the body of the tree, which is a special case, and standeth merely upon a special reason.

The first is the book of 44 E. III. f. 27. where it is agreed that if tenant for life be, and a disseissor commit waste, the lessee shall recover in trespass, as he shall answer in waste. But that this is a kind of recovery of damages but per accidens, may appear plainly.

For if the lessor die, whereby his action is gone, then the disseisor is likewise discharged otherwise than for the special property.

The second book is 9 E. IV. f. 35. where it is admitted that if the lessor himself cut down the tree, the lessee shall recover but for his special profit of shade, pannage, loppings, because he is not charged over.

The third is 44 E. III. f. 44. where it is said, that if the lessee fell trees, to repair the barn, which is not ruinous in his own default, and the lessor come and take them away, he shall have trespass, and in that case he shall recover for the very body of the tree, for he hath an absolute property in them for that intent.

And that it is only for that intent appeareth notably by the book 38 Ass. f. 1. If the lessee after he hath cut down the tree employ it not to reparations, but employ other trees of better value, yet it is waste; which showeth plainly the property is respective to the employment.

Nay 5 E. IV. f. 100. goeth farther, and showeth, that the special property which the lessee had was of the living tree, and determines as Herlackenden's case saith by severance; for then magis dignum trahit ad se minus dignum. For it saith that the lessee cannot pay the workman's wages with those parts of the tree which are not timber. And so I leave the first demonstration of property, which is by damages; except you will 27 H. 8. f. 13. add the case of 27 H. VIII. f. 13. where it is said, that if tenant for life and he in the reversion join in a lease for years, and lessee for years fell timber trees, they shall join in an action of

waste, but he in the reversion shall recover the whole damages: and great reason, for the special property was in the lessee for years, the general in him in the reversion, so the tenant for life mean had neither the one nor the other.

Now for the seisure; you may not look for plentiful authority in that for the lessor, which had the more beneficial remedy by action for treble damages, had little reason to resort to the weaker remedy by seisure, and leases without impeachment were then rare, as I will tell you anon. And therefore the question of the seisure came chiefly in experience upon the case of the windfalls which could not be punished by action of

waste.

First, therefore, the case of 40 E. III. pl. 22. is express, 40 E. 3. pl. 23. where at the King's suit in the behalf of the heir of Darcy, who was in ward, the King's lessee was questioned in waste, and justified the taking of the trees, because they were overthrown by winds, and taken away by a stranger. But Knevet saith, although one be guardian, yet the trees when by their fall they are severed from the freehold, he hath no property of the chattels, but they appertain to the heir; and the heir shall have trespass of them against a stranger, and not the guardian, no more than the bailiff of a manor. So that that book rules the interest of the tree to be in the heir, and goes to a point' farther, that he shall have trespass for them; but of seisure there had been no question.

So again in 2 H. VII. the words of Brian are that for the 2H. 7. f. 14. timber-trees the lessor may take them, for they are his, and seemeth to take some difference between them and the gravel.

The like reason is of the timber of a house, as appears 34 34 E. 3. f. 5. E. III. f. 5., abridged by Brook Tit. Waste, pl. 34., when it is said it was doubted who should have the timber of a house which fell by tempest; and, saith the book, it seems it doth appertain to the lessor; and good reason, for it is no waste, and the lessee is not bound to reedify it: and therefore it is reason the lessor have it; but Herlackenden's case goes farther, where it is said that the lessee may help himself with the timber if he will reedify it; but clearly he hath no interest, but towards a special employment.

Now you have had a case of the timber-tree, and of the timber of the house; now take a case of the mine, where that of

"appoint" in MS.

9 E. 4. f. 35.

the trees is likewise put, and that is 9 E. IV. f. 35. where it is said by Needham, that if a lease be made of land, wherein there is tin, or iron, or lead, or coals, or quarry, and the lessor enter, and take the tin or other materials, the lessee shall punish him for coming upon his land, but not for taking of the substances. And so of great trees. But Danby goes farther and saith, the law that gives him the thing doth likewise give him means to come by it; but they both agree that the interest is in the lessor. And thus much for the seisure,

For the grant, it is not so certain a badge of property as the other two. For a man may have a property, and yet not grantable, because it is turned into a right, or otherwise suspended. And therefore it is true that by the book in 21 H. VI. f. that if the lessor grant the trees, the grantee shall not take them, no not after the lease expired, because this property is but de futuro, expectant; but it is as plain on the other side, that the lessee cannot grant them, as was resolved in two Marwood and notable cases, namely, the case of Marwood and Sanders, 41 El. in communi banco, where it was ruled, that the tenant of the inheritance may make a feoffment with exception of timber trees, but that if lessee for life or years set over his estate with an exception of the trees, the exception is utterly void; and the like resolution was in the case between Foster and Mills plaintiffs, and Spenser and Boord defendants, 28 Eliz. rot. 820.

Sanders. 5Co. 12.

Foster and Spencer's case.

7 II. 6.
4: E. 3. f. 44.

Now come we to the authorities which have an appearance to be against us, which are not many, and they be easily answered, not by distinguishing subtilly, but by marking the books advisedly.

First, there be two books that seem to cross the authorities touching the interest of the windfalls, 7 H. VI. and 44 E. III. f. 44., where upon waste brought and assigned in the succision of trees, the justification is that they were overthrown by wind, and so the lessee took them for fuel, and allowed for a good plea; but these books are reconciled two ways. First, look into both the justifications, and you shall find that the plea did not rely only in that they were windfalls, but couples it with this, that they were first sere, and then overthrown by wind; and that makes an end of it, for sere trees belong to the lessee, standing or felled, and you have a special replication in the book of 44 E. III. that the wind did but rend them, and buckle

them, and that they bore fruit two years after. And secondly, you have ill-luck with your windfalls, for they be still appletrees, which are but wastes per accidens, as willows or thorns ure in the sight of a house: but when they are once felled they are clearly matter of fuel.

Another kind of authorities, that make show against us, are those that say that the lessee shall punish the lessor in trespass

Dyer, f. 90.

for taking the trees, which are 5 H. IV. f. 29. and 1 Mar. H. 4. f. 29. Dyer, f. 90. Mervin's case; and you might add if you will 9 E. IV. the case vouched before: unto which the answer is, that trespass must be understood for the special property, and not for the body of the tree; for those two books speak not a word what he shall recover, nor that it shall be to the value. And, therefore, 9 E. IV. is a good expositor, for that distinguisheth where the other two books speak indefinitely. Yea, but 5 H. IV. goes farther, and saith, that the writ shall purport arbores suas, which is true in respect of the special property; neither are writs to be varied according to special cases, but are framed to the general case; as upon lands recovered in value in tail, the writ shall suppose donum, a gift.

And the third kind of authority is some books (as 13 H. 13 H. 7. f. 9. VII. f. 9.) that say, that trespass lies not by the lessor against the lessee for cutting down trees, but only waste; but that is to be understood of trespass vi et armis, and would have come fitly in question if there had been no seisure in this case.

Upon all which I conclude, that the whole current of authorities proveth the properties of the trees upon severance to be in the lessor by the rules of the common law; and that although the common law would not so far protect the folly of the lessor, as to give him remedy by action, where the state was created by his own act, yet the law never took from him his property, so that, as to the property, before the statute and since, the law was ever one.

Now come I to the third assertion, that the statute of Gloucester hath not transferred the property of the lessee upon an intendment of recompense to the lessor: which needs no long speech. It is grounded upon a probable reason, and upon one special book.

The reason is, that damages are a recompense for property; and therefore that the statute of Gloucester giving damages

should exclude property: the authority seems to be 12 E. IV. 12 E. 4. f. 8.5

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