In this case a question arises: who owns the part of the tree that overhangs
Land 2? For Land 2 there is a conflict because according to Maxim 1
(quicquid plantatur) the owner of Land 1 owns it and according to Maxim 2
(cuius solus) the owner of Land 2 owns it. This generate at least two possible
solutions:
(1)
Solution 1: Maxim 1 and Maxim 2. One proposed answer is that Maxim
1 and Maxim 2 are given divided responsibility so that both apply. By this
means ownership of the tree would be divided between the two adjoining land
owners. The owner of Land 2 would own the part of the tree that overhung
their land as Maxim 1 prescribes. The owner of Land 1, where the tree was
planted would own the rest of the tree in accordance with Maxim 2.
(2)
Solution 2: Maxim 2. The second proposed answer is that Maxim 2
applies exclusively (so that it ousts or overrides Maxim 1). It is a case of
winner takes all in that the owner of the land in which the tree grows, Land 1,
owns the entire tree including that part that overhangs the adjoining land, Land
2. According to an appellate court in New York this is the legally correct
answer. As the court stated the rule: “[I]f the branches of a tree only
overshadow the adjoining land and the roots do not enter into it, the tree
wholly belongs to the estate where the land grows”.
306
306
Hoffman v Armstrong 48 NY 201 (1872) pp 203-204
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