( 383 )
Present : Lascelles C.J.
SOLOMONS et at. v! HENDUHAMY.
12—C. B. Badulla, 1,120.
Accession—Roots of tree projecting into the soil of another—Such toilowner has no right to the tree.
When the roots of a tree project into the soil of another, suchsoil owner acquires no right in the tree, though possibly he' maycut the roots of the tree.
N this case the plaintiffs-appellants sued the defendant for therecovery of Rs. 25 for damages caused by the defendant
having tapped and destroyed a flower of a kitul tree which plaintiffsclaimed.
J. W. de Silva, , tor the appellants.
No appearance for the respondent.
( 884 )
IMS. February 12, 1912. Lascelles C.J.—
Solomons v. This case was argued on the footing that the Commissioner ofHenduhamy Bequests had found that the disputed tree was common property,because, although it grew on the plaintiff's fence, its roots extendedto, and derived sustenance from, the ditch and land belonging toGeorge Mendis.
If the decision merely rested on this ground it could not be sus-tained, for when the roots of a tree project into the soil of anotherthe soil owner acquires no right in the tree, though possibly he maycut the roots of the tree (Masters v. Pollie *). But I do not thinkthat the learned Commissioner of Bequests meant to hold this,though there are passages in the judgment which would bear thisconstruction. I think he. meant to hold that the tree grew on theplace where the lower slope of the plaintiff’s fence comes intocontact with, and is undistinguishable from, George Mendis’s ditch,so that the tree cannot be said to grow wholly on the plaintiffs’fence. On this finding the conclusion that the tree is commonproperty is right. It is immaterial whether the defendant cut theflower on his own responsibility or with the authority of Mendis.In either case his action would be an invasion of the plaintiffs’legal rights, for which the plaintiffs are entitled to claim damagesfrom him.
The defendant, on the Commissioner’s findings, is liable toindemnify the plaintiffs against the damages which they havesuffered owing to the defendant’s wrongful action. I understandthat the Commissioner accepts Bs. 25 as a reasonable estimate ofthe plaintiffs’ loss of profit.
I set aside the judgment, and order the defendant to pay to theplaintiffs Bs. 12.50 damages and the costs of the trial in the Courtof Bequests and also the costs of appeal.
■ 2 Roll. Rep. HI.
SOLOMONS et al. v. HENDUHAMY