JUDGMENT
Panigrahi, J.
1. The defendants are the appellants in this second appeal. The suit was for a perpetual injunction against the defendants from interfering with the plaintiff’s peaceful enjoyment of the suit lands and for the recovery of a sum of Rs. 30 being the cost of bamboos alleged to have been cut and removed by the defendants from the suit lands.
2. The dispute between the parties is about the ownership of certain bamboo clumps growing on a common ridge between the lands of the plaintiffs and those of the defendants. Survey Nos. 220/I and 220/2 admittedly belong to the plaintiff and adjoining it immediately to the north is Survey No. 210 belonging to the defendants. There are certain bamboo clumps all along the northern and northeastern portion of the ridge. The roots of these clumps have grown into the soil on either side of the boundary line and trees have sprung up on both sides. The question is whether or not the trees growing on the southern side of the ridge belong to the plaintiff. A commissioner was appointed to localise the boundary-line and he found that the bamboo clumps extended on either side of the boundary line and that the defendants cut and carried away some of the trees growing on the side of the plaintiff’s lands.
3. The learned Munsif who tried the suit in the first instance held that the defendants’ father had actually planted the bamboo clumps on his side of the ridge and that the roots of those trees had, in course of time, burrowed into the plaintiff’s lands on the south and that as a result new trees sprang up on his side and that, as such, the plaintiff had no right to the trees. He also placed reliance on the evidence adduced on the side of the defendants that they had been cutting bamboos from that part of the ridge for over twenty years and that consequently the plaintiff’s title, if any, had been barred. The learned Munsif further held that the ridge itself was put up by the defendants and that therefore the trees growing on either side of the boundary line along the ridge belonged to the defendants. The plaintiff’s case that the defendants went upon his lands and cut sixty bamboos was admitted . On appeal the learned Subordinate Judge held that the defendants were not entitled to trespass on the plaintiff’s land for the purpose of removing the bamboos even though the trees might have been a part of the clump planted by the defendants on their side of the ridge. In this view of the matter, he set aside the order of the learned Munsif and decreed the plaintiff’s suit for injunction as well as for damages as claimed in the plaint.
4. In second appeal the learned counsel for the defendant-appellants urges that the lower appellate court was wrong in giving the plaintiff a decree for damages for trespass whereas the basis of the plaintiff’s claim in the suit was for compensation for the removal of trees by the defendants on the ground that they were the plaintiff’s property. ‘She suit was not conceived in tort for trespass on the plaintiff’s land and consequently the judgment of the lower appellate court was erroneous. This argument is met by learned counsel for the respondent plaintiff by the contention that although the suit was not for damages for trespass on the land the trees having grown on the plaintiff’s land must be deemed to have belonged to him and that, accordingly, the decree granted to the plaintiff by the learned Subordinate Judge must be upheld.
5. There is no common law, as such, relating to ownership of boundary trees in this country except that two Rules of Hindu Jurisprudence are quoted in Vyavahara Mayukha Chap. XV, Cl. 12 from Katyayana which is in the following terms:
“The fruit and flowers of trees produced upon a boundary between two fields are declared to be joint property pertaining in common to the masters of the two fields.”
In Mandlik’s Hindu Law there is a passage which throws some light on the ownership of the branches of a tree overhanging a neighbour’s land. The rule is stated thus: Where the branches of trees growing in one man’s field are spread over that of another then he shall be considered as the owner, in whose fields the the trees stand. This also appears to be the law in England and in other countries. The man who planted the tree is the owner not only of the trunk but also of the branches although the branches overhang his neighbour’s land. He is also the owner of the roots although the roots penetrate into the neighbour’s soil. The owner, however, cannot acquire a prescriptive right for his trees to overhang or for the roots of his trees to grow into his neighbour’s land, apparently because there is a perpetual change in the quantity of inconvenience caused thereby. The leading case on the subject is the decision of the House of Lords in ‘Lemmon v. Webb’, (1895) AC 1: (64 LJCh 205). Lord Herschell, L. C. observed:
“I think it is impossible to say that he has either ever acquired the right to the land over Which they hang or to their overhanging under the statute of limitations. The trees, of course, grow from time to time and their state each year is different from what it was a year before. The same remark applies to the suggestion that a prescriptive right has been obtained. The tree of today is not in the condition in which it was 20 years ago. It would be idle to suggest that the right gained at any time was the right to have the tree there in the condition in which it was 20 years before and that it was only open to the adjoining owner to put back the tree into the condition in which it then was……..It seems to me impossible to say in a case of this description that a right is gained either by the statute of limitation or under the ordinary law of prescription.”
It is clear, therefore, that the defendants cannot claim any right either by the statute of limitation or under the law of prescription, although the roots of the trees have spread into the plaintiff’s land for over twenty years. The imperceptible penetration of the roots over a long period cannot amount to trespass as conceived in law. Trespass is a direct entry into the land of another. In this case the entry of the roots into the plaintiff’s soil is consequential and is to be regarded as no more than a ‘nuisance. It has been held that where the branches of a tree growing on the land of one man overhang his neighbour’s land or where the roots burrow into his land and damage his buildings etc., it would amount to nuisance and not to trespass. See ‘Butler v. Standard Telephones & Cable Co., Ltd.’, (1940 KB 399: (109 LJ KB 238). The person whose property has suffered from the roots of a tree belonging to his neighbour has the right to cut the roots of the offending tree and is also entitled to recover damages if damage has been suffered by his owing to the action of the roots. Authorities on this point were summed up by Kay, L. J. in ‘Lemmon v. Webb’, (1894) 3 Ch 1 at p. 24 in these words:
“The encroachment of the boghs and roots over and within the land of the adjoining owner is not trespass of occupation of that land which by lapse of time could become a right. It is a nuisance. For any damage occasioned by this, an action on the case would lie. Also the person whose land is so affected may abate the nuisance if the owner of the tree, after notice, neglects to do so.”
The House of Lords ruled that no notice was necessary to the owner of the tree and that the person who complained of the nuisance might abate it by lopping off the branches which overhang his land. It is also clear that the rignt of lopping does not carry with it the right to appropriate the severed branches or the fruit growing on them – See ‘Mills v. Brooker’, (1919) 1KB555: (88 L J K B 950) where it was held that the right to lop off branches does not cany with it the right to pick and appropriate the fruit and if he does so he is guilty of conversion and liable to the owner for its value; ‘Mahabali v. Manu’, AIR (11) 1924 Pat 416: (74 IC 828) and ‘Hakim ullal v. Saminullal’, AIR (22) 1935 All 750: (156 IC 42). It has been laid down that not only has he the right to cut off the overhanging branches but he can also obtain an injunction for removing the overhanging portion without proof of damage – ‘Vishnu Jagannath v. Vasudev Raghunath’, 43 Bom 164: (AIR (5) 1918 Bom. 68) and ‘Bhoodev Mukerji v. Kalachand’, 34 CLJ 315: (AIR (8) 1921 Cal 129).
6. In the present case however the question is whether the trees which have sprung up on the plaintiff’s lands from roots which were planted by the defendants on their own lands and have subsequently burrowed into the plaintiff’s soil remain the property of the defendants. The rule of Hindu Jurisprudence cited above appears to be the law in Prance, as would appear from Article. 173 of the Code Napolean which runs as follows:
“Trees growing in a party hedge are party like the hedge and each of the two owners, has the right of requiring that they be cut down.”
In Houn’s Law of Boundaries a passage is quoted from the Digest of Civil Law winch, reads as follows:
“If a tree planted near a boundary extends its roots into the lands of a neighbour it becomes common” o (Dig. XL – 1, 7, Schedule 3).”
Hay, L. J. quoted a passage from an anonymous case reported in ‘2 Rolls, 225’, where the following note appears:
“But if it grows in a hedge which divides the lands of A and B and the roots take nourishment on both the lands it was adjudged: that they were tenants in common of it”. In ‘Holder v. Coates’, (1827) M & M 112: (173 ER 1099), it was held that where the tree is on a boundary line so that the trunk is partly in the land of each of the adjoining owners they become joint owners of the tree.
7. The principle, therefore, seems to be well established that where the ownership is un established that where the ownership is uncertain a tree on a boundary line is the common property of the owners on either side of the boundary; and secondly where the tree draws its nourishment from the soils of both owners it becomes the common property of the owners though it may actually be situated on the land of one of them. It is difficult to find for either party as to the proportion of nourishment derived by the tree from the plaintiff and defendant respectively. The law therefore appears to be well settled that where the roots of a tree extend into the lands of the two parties and derive nourishment from both, it should be held to be the common property of both. The findings of fact in this case being that the defendants originally planted the trees, the roots of which have penetrated into the plaintiff’s land and fresh trees have sprung up on the latter as a result thereof, it must be held that the trees which were removed by the defendants drew their nourishment from the plaintiff’s soil as well and were the common properties of both the parties. The plaintiff shall accordingly be entitled to a decree for half the value of the trees cut and removed by the defendants, viz., Rs. 15/- In view however of his assertion that he had planted the tree originally – a claim which has been found to be false by both the Courts below – I would disallow the costs incurred by him.
8. In the result the appeal is allowed in part. The judgment of the learned Subordinate Judge is modified viz., that the plaintiff shall get a decree for Rs. 15/- instead of Rs. 80/- as claimed by him. There will be no order as to costs in view of the fact that the law relating to the ownership of the trees, in a case of this kind, is obscure.
