TIMBER AND TIMBER-TREES. Timber-trees are those the wood of which is used for building or repairing houses. Oak, ash, and elm, of the age of twenty years and upwards, are the trees most generally included under that denomination ; but there are many other kinds of trees, such as beech, cherry, aspen, willow, thorn, holly, horsecheanut, lime, yew, walnut, &c., which are, by the custom of certain parts of England, considered as timber-trees, as being those used in building. (Cruise, 'Dig:, t. 3, c. 2, ss. 6, 7.) Most of the cases upon the question as to what trees are to be considered timber, have arisen in reference to the stat. 46 Edw. Ill., c. 3, whereby it was enacted that great or grease wood of the age of twenty, thirty, or forty years, or upwards, should not be titheable, but that viva medua, or underwood, should be titheable. (2 Inat.', 642, 643 ; 3 ' Rep.', 12.) The timber-trees growing upon land belong to the owner of the inheritance. A tenant for life has only a qualified interest in them, in so far as they afford him shade and shelter, and a right to take the mast and fruit. If the tenant for life fells timber-trees on the land to any amount greater than he is entitled to as estovers, that is to say, the allowance of wood necessary for the reparation of houses and fences, he becomes liable to an action of waste [WASTE] ; and the trees, which by these or any other means, accidental or otherwise, have become severed from the land, may be seized by the owner of the inheritance, or an action may be brought by him for them. If, how ever, the estate of the tenant for life be without impeachment of waste, ho has the full right to fell timber, and also the property in all timber trees felled and blown down during his life.
lu leases for lives, when timber is included, if the lessor fells the trees, the lessee may maintain an action of trespass against him, because the lessee, though he may not cut down the trees without being subject to an action of waste, has an interest in them for shade and shelter, and a right to take the mast and fruit, and may also lop them if they be not thereby injured. But where the trees are excepted
in a lease, which is usually done, the lessee has no interest whatever in them, and the lessor may bring an action of trespass against him if he fells or damages them. The lessor has also a power, incident to the exception, of entering on the land in order to fell and take away the trees ; though this power, for the sake of avoiding questions, is often expressly reserved.
The timber growing on copyhold estates is, by the general custom of most manors, the property of the lord, who may cut it down, provided ho leaves a sufficient quantity for the repairs of the copyhold, which the copyholder is entitled to of common right. But the general right of the copyholder to have timber for the reparation of houses and for ploughbote and hedgebote may be restrained by custom, namely, that he shall not take it without assignment from the lord or his bailifE A copyholder in fee may, by the particular custom of the manor, have a right to cut timber-trees growing on his copybold, and sell them at his pleasure ; and the same right may belong by custom to a copyholder for life, who is entitled to nominate his successor, as being a quasi copyholder in fee ; but a custom that a copyholder for life may out down timber is unreasonable and void, as being a destruction of the inheritance, and contrary to the nature of a life estate.
Ecclesiastical persons being considered in most respects as tenants for life of the lands held by them jure eeclesim, are not permitted to cut down timber except for repairs. The Court of Chancery will always interfere to prevent the owner of a particular estate joining with the person entitled to the inheritance for the time being to cut down the timber on the estate.