Scarborough v. Woodill

TAGGART, J.

Appeal from judgment and order denying motion for a new trial.

Plaintiff and defendant own adjoining orange orchards in the county of Riverside, which are separated by a row of cypress trees growing on the boundary line between them. The trees vary in diameter from thirteen to twenty-three inches, and in height from seventy to seventy-five feet, and the trunks thereof stand partly on one side and partly on the other side of said line.

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Defendant cut down eight of these trees (every alternate two), and threatened to continue to cut every alternate two trees until he had cut one-half of the entire row. The eight were taken to defendant’s home and used for firewood.

The trial court rendered judgment in favor of plaintiff for $100 damages and perpetually enjoining defendant from cutting down, injuring or destroying any of the remaining .trees growing on said line.

Line trees are “trees whose trunks stand partly on the land of two or more coterminous owners,” and “belong to them in common.” (Civ. Code, sec. 834 ; 28 Am. & Eng. Ency. of Law, 2d ed., p. 538.)

While at common law there appears to have existed two views as to the character of the estate created in the adjacent owners of real property by reason of the roots of trees growing near the boundary line extending into and deriving nourishment from the other property, the rule as to trees growing in a hedge that divided the lands of two proprietors was the same as that of our Civil Code. The ownership of the soil was several, in the proprietors of the two estates, while the tree, standing and growing partly on the soil of each, not capable as an entire thing of several ownership by the two was the property, of the two in common, and as tenants in common.

(Dubois

v.

Beaver,

25 N. Y. 123, [82 Am. Dec. 329].) If the tree stand so nearly upon the dividing line between the lands that portions of its body extend into each, the same is the property, in common, of the land owners. And neither of them is at liberty to cut the tree without the consent of the other, nor to cut away the part which exends into his land, if he thereby injures the common property in the tree. (Washburn on Real Property, 3d ed., sec. 7a.) The tenancy in common in a “line tree” appears to be of a peculiar nature, and may be stated to be, “that each of the land owners upon whose land any part of a trunk of a tree •stands has an interest in that tree, a property in it, equal, in the first instance, to, or perhaps, rather identical with, the part which is upon his land; and in the next place, embracing the right to demand that the owner of the other portion shall so use Ms part as not unreasonably to injure or destroy the whole.”