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The consent of the law with the civil law in the distinguishing between inheritance
divi sion of dominium and tsus-fructus.
Neither is this matter of discourse, except the deep and profound reasons of law which ought chiefly to be searched shall be accounted discourse, as the slighter sort of wits (scioli) may esteem them.
And therefore now that we have opened the nature of inheritable and transitory; let us see, upon a division of estates and before severance, what kind of interest the law allotteth to the owner of inheritance, and what to the particular tenant; for they be competitors in this case.
First, in general the law doth assign to the lessor those parts of the soil conjoined which have obtained the reputation to be durable, and of continuance, and such as being destroyed are not but by long time renewed; and to the termor it assigneth such interests as are tender, and feeble against the force of time, but have an annual, or seasonable return or
revenue. And herein it consents again with the wisdom of the and particular civil law; for our inheritance and particular estate is in effect hath Pelation their dominium and usus-fructus ; for so it was conceived upon
the ancient statute of depopulations, 4° Hen. VII. which was
penned, that the owner of the land should re-edify the houses of Owner in the husbandry, that the word owner (which answereth to dominus)
was, he that had the immediate inheritance, and so ran the later statutes.
Let us see therefore what judgment the law maketh of a timber tree; and whether the law doth not place it within the lot of him that hath the inheritance, as parcel thereof.
First, it appeareth by the register out of the words of the chuhe felting writ of waste, that the waste is laid to be ad exhæredlationem, aruncma reda- which presupposeth hæreditatem : for there cannot be a disin
herison by the cutting down of the tree except there was an inheritance in the tree; quia privatio presupponit actum.
Again it appeareth out of the words of the statute of Glouquod recupe cester well observed that the tree and the soil are one entire le.com vasta. thing; for the words are quod recuperet rem vastatam, and yet
The writ of waste suppose
the books speak, and the very judgment in waste is, quod recuperet locum vastatum, which shows that res and locus are in exposition of law taken indifferently; for the lessor shall not recover only the stem of the tree, but he shall recover the very
soil wherewith the stem continues. And therefore it is notably 9 H. 6. f. 13. ruled in 22 H. VI. f. 13., that if the termor do first cut down
The statute of
1. There" in the MS.
the tree, and then destroy the stem, the lessor shall declare upon two several wastes, and recover treble damages for them severally. But, says the book, he must bring but one writ, for he can recover the place wasted but once.
And farther proof may be fitly alleged out of Mullin's case Soly v, Moin the Commentaries, where it is said that for timber trees tithes Plowd. 470. shall not be paid. And the reason of the book is well to be observed; for that tithes are to be paid for the revenue of the inheritance and not for the inheritance itself.
Nay, my lords, it is notable to consider, what a reputation the law gives to the trees, even after they are severed by grant, as may be plainly inferred out of Herlackenden’s case, L. Coke, 4.Co.62. p. 4. f. 62. I mean the principal case; where it is resolved that if the trees being excepted out of a lease be granted to the lessee, or if the grantee of trees accept a lease of the land, the property of the trees drowns' not, as a term should drown in a freehold, but subsists as a chattel divided; which shows plainly, though they be made transitory, yet they still to some purpose savour of the inheritance ; for if you go a little farther, and put the case of a state tail, which is a state of inheritance, then I think clearly they are reannexed. But on the other side if a man buy corn standing upon the ground, and take a lease of the same ground where the corn stands, I say plainly it is reaffixed, for paria copulantur cum paribus.
And it is no less worthy the note, what an operation the inheritance leaveth behind it in matter of waste, even when it is gone; as appeareth in the case of tenant after possibility, who shall not be punished: for though the new reason be, because his estate was not within the statute of Gloucester; yet I will not go from my old Master Littleton's reason, which speaketh out of the depth of the common law, he shall not be punished for the inheritance sake which was once in him.
But this will receive a great deal of illustration by considering the termor's estate, and the nature thereof, which was well defined by Mr. Heath (who spake excellent well to the case) that it is such as he ought to yield up the inheritance in as good plight as he received it; and therefore the word firmarius The deriva (which is the word of the statute of Marlebridge) cometh (as of the word I conceive) a firmando, because he makes the profit of the inheritance, which otherwise should be upon account and un
“ Drown” in the MS.; and so "subsist " (for “subsists”, below.
The evi. dences
blood. Particular tenants of seigniories shall not have aid,
certain, firm and certain ; and accordingly feodi firma, — feefarm, - is a perpetuity certain. Therefore the nature and limit of a particular tenant is to make the inheritance certain, and not to make it worse.
First therefore he cannot break the soil otherwise than with his ploughshare to turn up perhaps a stone, that lieth aloft; his interest is in superficie not in profundo, he hath but tunicam terræ, little more than the vesture.
If we had fir timber here, as they have in Muscovy, he could not pierce the tree to make the pitch come forth no more than he may break the earth.
So we see the evidence, which is propugnaculum hæreditatis, purupugnacu. the fortress and defence of the land, belongeth not to the lessee,
but to the owner of the inheritance.
So the lessee's estate is not accounted of that dignity, that it nuance in the can do homage, because it is a badge of continuance in the
blood of lord and tenant. Neither, for my own opinion, can a particular tenant of a manor have aid, pour file marier, ou pour faire fitz chevalier ; because it is given by law upon an inducement of continuance of blood and privity between lord and tenant.
And for the tree which is now in question; do but consider in what a revolution the law moves, and as it were in an orb: for when the tree is young and tender-germen terræ, a sprout of the earth,—the law giveth it to the lessee, as having a nature not permanent, and yet easily restored: when it comes to be a timber-tree, and hath a nature solid and durable, the law carrieth it to the lessor. But after again, if it become a sear and a dotard, and his solid parts grow putrified, and as the poet saith, non jam mater alit tellus viresque ministrat, then the law returns it back to the lessee. This is true justice, this is suum cuique tribuere, the law guiding all things with line of measure, and proportion.
And therefore that interest of the lessee in the tree which the books call a special property is scarce worth that name. He shall have the shade, so shall he have the shade of a rock; but
he shall not have a crystal, or Bristol diamond growing upon the profits of the rock. He shall have the pannage'; why, that is the fruit
of the inheritance of a tree, as herb or grass is of the soil. He shall have seasonable loppings; why, so he shall have seasonable diggings of an open mine. So all these things are rather
i Swinc-food, acorns, &c.
The phrase that the lessee hath a special property in the tree, very improper; for he hath but
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.
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 a 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.
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 ac- seixere, and cording to these I will examine the property of the trees by the grant. authority of books.
And first for damages.
44 L. 3. f. 27.
E. 4. I. 35.
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 de
monstration of property, which is by damages; except you will 27 11. 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
44 E. 3. f. 44.
38 Ass. f. 1.
5 E. 4. f. 100.