Present: Schneider A.J.

JINASENA v. ENGELTINA et al.

50-C. R. Colombo 63,937

Coconut tree overhanging neighbour's land-Top blown down by high wind-Action for damages-No proof of negligence.

A coconut tree with a thin stem standing on defendant's premises overhung plaintiff's workshop. The top of the tree was blown down during a high wind and caused damages to plaintiff.

Held, that in the absence of proof of negligence the defendants were not liable in damages.

SCHNEIDER A.J.-The mere fact that a coconut tree overhangs a neighbour's land, and the mere fact that it had a thin stem, do not render the tree a " dangerous element. " Unless there was some thing extraordinary in the manner of the tree in question overhanging the plaintiff's land, or in the state of its trunk, the plaintiff should have averred and proved negligence. In the .absence of evidence that the tree was old and rotten, the damage must be attributed to the action of the wind."

THE facts are set out in the judgment of the Commissioner of Requests (T. B. Russell, Esq.): -

It is admitted that defendants' tree fell on plaintiff's workshop and did the damage alleged in