
    LIU KONG vs. KEAHIALOA.
    Appeal prom Police Justice op Honolulu.
    Hearing, July 2, 1892.
    Decision, July 14, 1892.
    Judd, C.J., Bickerton and Dole, JJ.
    A tenant, under a lease for fifteen years, who planted algaroba trees on the demised premises, has the right to cut and sell the same, such trees not being “timber” trees.
   Opinion op the Court, by

Judd, C.J.

The defendant leased his land to the plaintiff. The defendant then took a lease back to himself from the plaintiff of a portion of the premises) and occupied the same, and this action is to recover $25 rent therefor to January 1st, 1892. The defendant admits the claim for rent, and files a counter claim for $60 for trees cut and carried away by plaintiff from the demised premises. The evidence sent up from the Police Court of Honolulu, with the points of law, is that the trees (algaroba) which plaintiff cut were those planted by himself during the term, and that they were about six years old when cut. This case on the counter claim raises the question whether the tenant had a right to these trees.

W. C. Achi, for plaintiff.

W. R. Oastle, for defendant.

The rule of the common law is that the general property in “trees that are timber” is in the owner of the land on which they grow. Perriman vs. Peacock, 9 Bingham, 386. Taylor, L. & T., Section 350. “Timber” trees are defined to be those which can be used for building purposes, furniture, etc. As said by Lord Chancellor King, in Duke of Chandos vs. Talbot, 2 P. Wms., 606, “It is the custom of the country that makes some trees timber which in their nature, generally speaking, are not so.”

Now the algaroba is a quick growing tree in this district, it is not a timber tree, not being used for house-building or similar purposes. It is too hard and too irregular to be cut up into lumber. Its principal use is for firewood. We may presume that the tenant (plaintiff herein), having a lease for fifteen years, planted the trees in question on the demised premises with the intention of cutting them when sufficiently large to serve as firewood.

In this case we cannot consider whether any injury was thereby done to the land, as by leaving unsightly stumps, for by the nature of the counter claim (which is more properly a set-off) the tort is waived, and the mere value of the wood cut is sought to be recovered. And this case does not raise the question whether a tenant for years has the right. to cut down and appropriate trees growing on the land at the time the lease was made.

We disallow the set-off. The plaintiff may have judgment for the rent, as found by the Court below, for $25, and costs.  