It is trite law that a tree growing on land forms part of the land and, therefore, attaches to the realty owned by the freeholder or leaseholder. What is, perhaps, less obvious is that it is possible for a landowner to own (and to transfer) a freehold or leasehold estate in a tree which is separate from estate ownership of the subjacent soil, provided that the tree has not been severed from the realty.
A separate estate distinct from the soil
A number of early English cases make this clear. In Herlakenden’s Case (1588) 4 Co Rep 62a, at [63b], it was held that, ‘If trees be excepted in a feoffment to a man and his heirs, the trees in property are divided from the land, though in fact they remain annexed to it, and that if one should cut them down and carry them away, it would not be a felony.’ Similarly,
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