Martyn against Knowllys
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 1799 |
| Date | 07 February 1799 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 1313
IN THE COURT OF KING'S BENCH.
1 Taunt. 241.
Referred to, Jacobs v. Seward, 1869, L. R. 4 C. P. 330.
[145] martyn against knowllys. Thursday, Feb. 7th, 1799. One tenant in common cannot maintain an action on the case in nature of waste against another tenant in common (in possession of the whole, having a demise of the moiety from the first) for cutting down trees of a proper age and growth, for being cut. [1 Taunt. 241.] [Referred to, Jacobs v. Seward, 1869, L. R. 4 C. P. 330.] This was an action on the ease, in the nature of waste. The declaration stated, that the plaintiff was seised in his demesne of and in an undivided part of certain lands, &c. in Wingfield, Berkshire, the whole of which were in the occupation of the defendant, who held and enjoyed the plaintiff's part as tenant to him (the plaintiff); yet that he (the defendant) wrongfully ploughed up, &c. divers acres of meadow, &c. and wrongfully felled and destroyed divers timber and other trees, &c. There were other counts, not stating that the defendant held the plaintiff's part as tenant to the plaintiff. The defendant pleaded the general issue. On the trial at the last Berkshire Assizes, before Mr. J. Heath, it appeared that the plaintiff and defendant were tenants in common of the land on which the trees grew; that the defendant occupied the whole, having a demise from the plaintiff of his moiety ; and that he had felled many trees, all of which were of a proper age for being cut. For the defendant it was objected : that under these circumstances, this action, for misfeasance, could not be supported; for that the case must be considered in the same light as if the plaintiff had not leased his moiety to the defendant, the trees as part of the inheritance not passing by that lease ; and if so, that one tenant in common cannot bring such an action against another, unless for some injury done to the inheritance : which was not pretended here, as all the trees were proper for being cut. That, if the defendant could not cut trees in this state, one obstinate tenant in common might prevent the other's taking the produce of the land. For the plaintiff it was contended, that the defendant ceased to be tenant in common during the lease, and became liable to the plaintiff like any other lessee. But that even if no lease had been granted by the plaintiff to the defendant, the former might maintain this action on the authority...
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