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It is true, that the first owner of the inheritance in esse shall have timber blown down, but as an estate in contingency is no estate, and the trees must become the property of somebody, therefore the first remainder-man of the inheritance in being takes them (a).
So, with respect to the case of a copyholder, who has only a possessory property in the timber trees, of which, if severed from the freehold by tempest or otherwise, the property will be in the lord; and a custom for the tenant to claim such trees would be a hard one, and so likewise of the materials of the house (£). In either case, being things annexed to the inheritance, the severance shall not transfer the property; this therefore is to be understood as of a copyholder, not of inheritance (r).
For, as to a right to cut down timber by custom, where a copyholder hath the inheritance, and where his successor comes in by his nomination, there such a custom may be good (d): but a custom for a copyholder for life to cut down and fell trees was held not to be good, unless it be to build new houses on the land (e).
A custom that every copyhold tenant may cut down trees at his will and pleasure, is unreasonable and void, for then a tenant at will might do it; so it is for a copyholder for life to do it; and one of the reasons given is, that the succeeding copyholder would not have wherewithal to maintain the house and plough, which plainly intimates, that a copyholder may cut timber to make reparations, and the rather, because permissive waste is a forfeiture in him (f).
The lord may cut down timber trees, leaving sufficient, and the custom to cut makes no alteration; for it has been resolved, that every copyholder may take trees for house-bote of common right; so that the laying the custom seems to be only by way of caution (g).
The right of the lord to take trees on a copyhold, perhaps, is rendered somewhat doubtful by the reversal on error brought in parliament of the judgment in the case of Ashmcad against Ranger (h).
It is clear that a copyholder may take the necessary estovers or botes on his copyhold without a special custom (i).
But to enable him to take them on other lands, a special custom must be shewn (k).
As a tenant for life has a right to what may be sufficient for repairs and botes, care must be taken in felling timber to leave enough upon the estate for that purpose; and whatever damage is done to the tenant for life on the premises by him held for life, the same ought to be made good to him (a).
(a) Garth v. Cotton. 3 Atk. 751-5.
(J) Rockey v. Huggens. Cro. Car. 320azi.
(e) Countess Arundel v. Steere. Cro. Jac.
cock. Cro. Jac. 19.
(f) Gilbert's Tenures. 239.
(b) u Mod. 18. S. C. u Mod. 378. S.C. Salk.638. S. C. Holt. 16a. S. C. Com, Rep. 71. S. C. I Ld. Raym. 551.
(i) Anon. IX Mod. 68.
(i) French's Case, 4 Rep. 31,
Estovers may be granted in fee, and in a grant of estovers the grantor may take the trees with the grantee. But underwood is a thing of inheritance and perpetuity, and may be granted in fee by copy of court-roll, and will support trespass quare clausumfregit; for in such case, the grantor cannot meddle with the woods, nor can his lessee; for he hath entirely granted the underwood, and not estovers or so many loads of wood.—A grant may be made to a person by a deed to to which he is no party (b).
If the lord of a manor cut down so many trees as not to leave sufficient estovers, his copyholder may bring trespass against him, and recover the value of the trees in damages; and even if the lord leave sufficient estovers, yet he shall recover special damages, viz. for the loss of his umbrage, breaking his close, treading down his grass, &c. for the tenant had the same customary or possessory interest in the trees that he has in the land; and if the lord has a mind to cut trees, his business is to compound with the tenant (c). [But see Ashmead v. Ranger, ante."]
The lord of a manor, as such, has no right without a custom, to enter upon the copyholds within his manor, under which there are mines and veins of coal, in order to bore for and work the same, and the copyholder may maintain trespass against him for so doing (d).
But an inclosure of the common by the lord may be no interruption of the tenant's enjoyment of their common of estovers; nay, probably it may be better for such inclosure. If indeed, by such inclosure, their common of estovers were affected, or they were interrupted in the enjoyment of it, they might certainly bring their action; and the lord, in such case, could not justify such inclosure in prejudice to those rights (e).
If the lord of a manor plant trees on a common, the commoner has no right to abate them, though there be not a sufficiency left; his remedy is by action. But if the lord so plant as to destroy the common, such an act would be considered as a nuisance, and the commoner might abate it (/).
The distinction seems to be this: if the lord of the manor make a hedge round the common, or do any other act that entirely excludes the commoner from exercising his right, the latter may do whatever is necessary to let himself into the common ; but if the commoner can get at the common, and enjoy it to a certain extent, and his right be
merely abridged by the act of the lord, in that case his remedy is by an action on the case, or by an assise, and he cannot assert his right by any act of his own (a).
Section III. Of Emblements.
The word emblements is derived from the French emblavence debhd, corn sprung or put above ground, and strictly signifies the profits of sown land; but the doctrine of emblements extends not only to corn sown, but to roots planted or other annual artificial profits (b).—Hops growing out of ancient roots, have been held to be like emblements, which shall go to the husband or executor of the tenant for life, and not to him in remainder; and are not to be compared to apples or fruits, which grow of themselves (c).
But it is otherwise of fruit-trees, grass, and the like, which are not planted annually at the expense and labour of the tenant, but are either a permanent or a natural profit of the earth: for when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to himself in future, and to future successions of tenants (b).
It shall be intended prima facie, that the property of the corn is in the owner of the soil. But, the public being interested in the produce of corn and grain, (among other reasons for the rule) emblements go to the executor, and not to the remainder-man (d).
In some cases, indeed, he who sows the corn shall have the emblements, in others not.
If tenant in fee, or in tail, or in dower, die after sowing the corn, and before severance, his executor or administrator generally shall have the emblements (e).
Tenant for life, or his representatives, shallnot be prejudiced by any sudden determination of his estate; because such a determination is contingent and uncertain.—Therefore, if a tenant for his own life sow the land, and die before harvest, his executors shall have the emblements or profits of the crop; for the estate was determined by the act of God, and it is a maxim in the law, that actus Dei neminifacit injuriam. The representatives therefore of the tenant for life shall have the emblements, to compensate for the labour and expense of tilling, manuring, and sowing the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the increase and
plenty of provisions, ought to have the utmost security and privilege that the law can give it (a).
Therefore if a man sow land and let it for life, and the lessee for life die before the corn be severed, his executor shall not have the emblements, but he in reversion; but if he himself had sowed the land and died, it were otherwise (i).
So, if tenant for life sow the land, and grant over his estate, and the grantee die before the corn severed, such grantee's executor shall not have the corn (£).
So, if the lessee of a tenant for life be disseised, and the lessee of the disseisor sow the land, and then the tenant for life die, and he in remainder enter, yet he shall not have the emblements, but the lessee of the tenant for life (c).
So it is also, if a man be tenant for the life of another and cestui que vie, or he on whose life the land is held, die after the corn sown, the tenant pur outer vie shall have the emblements (a).
The same is also the rule, if a life estate be determined by the act of law (d).
Therefore if a lease be made to husband and wife during coverture, (which gives them a determinable estate for life) and the husband sow the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements in this case; for the sentence of divorce is the act of law.
So if tenant in tail give or grant his emblements of corn growing on the ground; the donee may cut and take them after the death of the tenant in tail (d).
So every one who has an uncertain estate or interest, if before severance of the corn, his estate determine either by the act of God or of the law, he shall have the emblements, or they shall go to his executor or administrator (d); for, so it is in all cases regularly, where a man sows land wherein he hath such an estate as may perhaps continue until the corn be ripe (e).
But if the estate be determined by the tenant's own act, as by forfeiture by tenant for life for waste committed; or if a tenant during widowhood marry; in these and similar cases the tenants having thus determined the estates by their own acts, shall not be entitled to take the emblements (/).
So, a parson who resigns his living is not entitled to emblements (g).
The under-tenants or lessees of tenants for life, have the same, nay greater, indulgencies than their lessors, the original tenants for life. The same •, for the law of estovers and emblements, with regard to merely abridged by the act of the lord, in that case hi' an action on the case, or by an assise, and he cannot -C by any act of his own (a). ■';
(j) 1 Bl. Com. 121-3.
(3) Anon. Cro. El'u. 6l.
(0 Knevctt v. Poole. Cro. Eliz. 463.
(J) Shep. Touch. 344.
(0 Ibid. 471. (/)aBl. Com. 143. (g) Bulwer v. Bulwer.
2 B.& A. 47°
The word emblements is derived from corn sprung or put above ground, and sown land; but the doctrine of emb' sown, but to roots planted or other growing out of ancient roots, h which shall go to the husband not to him in remainder; and which grow of themselves
But it is otherwise of r f\ planted annually at tb either a permanent o plants a tree, he cr any present profi himself in fat,
It shall be the owner r duce of ments
..o his own folly to
t me profits. In such case
on the lands to take the emble
i- tor years depends upon an uncertainty; as upon ,,-jSor, being himself only tenant for life, or being a # right of his wife; or if the term of years be deq * life or lives; in all cases of this kind, the estate Lfctiog certainly to expire at a time foreknown, but merely J, the tenant, or his executors, shall have the em*a, the same manner that a tenant for life would be entitled
however, if it determine by the act of the party himself: t for years surrender before severance, or does any thing counts t0 a forfeiture; in which case the emblements shall go lessor, and not to the lessee, who hath determined his estate by
w however, lessor covenant that lessee for years shall have the
tents which are growing at the end of the term, there the pro
r,y of the corn is well transferred to the lessee, though it be not
. A during the term (e), E
If tenant at will sow his land, and the landlord before the corn is
ripe, °r before it is reaped, put him out, yet the tenant shall have
the emblements, and free ingress, egress, and regress, to cut and
carry away the profits: and this for the same reason upon which all