Lapas attēli

What acts are of trees which are otherwise not timber, as hornbeams, ha

zels, willows, sallows, &c. will from the situation in which

deemed waste.

240, S. C. 3 Ib. 266; see also Wickham v. Wickham, 19 Ves. 419. 1 Inst.

53 a.

All tenants for life have a right to cut down coppices and underwoods at seasonable times, according to the custom of the country; for no advantage can arise to a tenant for life from woods of this kind, but by the sale of them. It was, however, held in a modern case, that a tenant for life has no property in the underwood till his estate comes into possession; and cannot have an account of what was cut wrongfully by a preceding tenant. Pigot v. Bullock, 1 Ves. jun. 479. As to what may be considered underwood the reader is referred to the King v. Ferrybridge, the reporter's note and the cases there cited. 1 Barn, & Cress. 375, 379.

What would be waste in England, is not always so here. Lessees in that country are not prohibited from cutting wood upon the demised premises altogether. The prohibition in principle extends no further in this respect than it does here. In England, that species of wood which is denominated timber shall not be cut down because felling it is considered an injury done to the inheritance, and therefore waste. Here, from the different state of many parts of our country timber may, and must be cut down to a certain extent, but not so as to cause an irreparable injury to the reversioner. To what extent wood may be cut before the tenant is guilty of waste, must be left to the sound discretion of a jury, under the direction of the court, as in other cases. What kind of wood in England is deemed to be timber, depends upon the custom of the country. Wood which in some counties, is called timber, is not so, in others. (Co. Litt. 53; Bac. Abr. tit. Waste ; Comyn. Waste; 2 P. Wms. 606; Cruise's Dig. tit. 3, S. 18, 19; Countess of Cumberland's case, Mooro's Rep. 812; Co. Litt. 536; Cook v. Cook, Cro. Car. 531; Cro. Jac. 126 n.) So a lessee of years is entitled to reasonable estovers; but he is guilty of waste, if he cuts green trees when there is dry wood sufficient. So again, if there be a tenant for life without impeachment of waste, he may cut down all sorts of timber, and convert them to his own use; but if he wantonly cuts timber which serves for ornament or shelter, or which is not fit to be felled, he is punishable for waste. The principle upon which all these cases rest, is that whenever wood has been cut in such a manner as materially to prejudice the inheritance, it is

Jackson v. Brownson, 7 Johns. Rep. 227, Per Van Ness, J. In Pennsylvania, a tenant in dower, may clear woodland assigned to her in dower, without being guilty of waste, provided she does not exceed the relative proportion of cleared land considered as to the whole tract. Hastings v. Crunckleton, 3 Yates' Rep. 251. In Conner v. Shepherd, 15 Mass. Rep. 164, the court seemed to be in favor of the strict Englishı rule; while recently, in Pynchon v. Stearns, 11 Met. Rep. 304, the more liberal doctrine prevailed.

A lessee covenants not to cut down, destroy, or carry away any more wood or timber than would be actually used and employed on the farm, or that he would not make any manner of waste, sale, or destruction of the wood or timber; he commits waste if he cuts down and uses wood, growing on the demised premises. Livingston v. Reynolds, 26 Wen. Rep. 115. If the lessee or his assignees cut down wood, in such a manner as to injure the inheritance, it is waste. Jackson ex dem. Church v. Bronson, 7 Johns. Rep. 227. Where wild and uncultivated land wholly covered with wood and timber, is leased, the lessee may fell part of the wood and timber, so as to fit the land for culti


deemed waste.

they are planted (as if they support a bank, *or grow within What acts are the sight of and protect a house) be considered waste.(a)[1] Anything tending to the destruction of the subject demised is waste; thus, though the lessee may cut underwood, yet the eradicating it, or cutting it at unseasonable times, or destroying the germins, is waste.()[2] Where the underwood

(a) Co. Lit. 53, a. Hob. 219.
(b) 2 Roll. Ab. 815. Co. Lit. 53, a. Cro. Jac. 126.

vation, without being liable for waste; but he cannot cut down all the wood and timber, so as to permanently injure the inheritance. Ib. To cut oak trees for firewood, where such is the common practice, is not waste. Paddleford v. Paddleford, 7 Pick. 152. It is waste to cut timber trees and sell them in ex. change for firewood. Ib. It is not waste in a tenant in dower to cut timber on one parcel of land to make repairs on another, notwithstanding the reversion of the two parcels may be in different persons. Ib.

It seems that as a tenant for life has no property in timber or underwood, till his estate comes into possession, he cannot have an account in equity, or maintain an action of trover at law, for what has been cut wrongfully by a preceding tenant, notwithstanding his own estate, being without impeachment of waste, would have entitled him to cut such timber or underwood and put the produce into his own pocket; the owner of the first estate of inheritance at the time when the timber was cut, being the party entitled to redress in such case. Pigot y. Bullock, 1 Ves. jun. 484, Whitfield v. Bewit, 2 P. Wms. 241. But a tenant for life in remainder, though he cannot establish any property in timber actually severed during a prior estate, may bring a bill to restrain waste; and he may sustain such a suit although he has not the immediate remainder, and notwithstanding his estate, whenever it comes into pogsession, will be subject to impeachment for waste; for though he will have no right to the timber, he will have an interest in the mast and shade of the trees. Note to 2 Blk. Com. p. 284.

[1] In England, the expression of "timber," includes oak, elm and ash, everywhere; and, by local custom, beech and various other trees; even trees which are primarily fruit trees, as cherry, chestnut, and walnut; no wood, however, is timber until of twenty years' growth; as a general rule, pollards would seem not to be timber; if sound, they may, however, be timber by local custom: and the expression “timber and timber-like trees," would seem to include sound pollards : and exception, in a lease, of "all timber and other trees, but not the annual fruit thereof," would seem not to include garden or orchard fruit trees, unless by local custom; the term "fruit" being considered to refer to the mass of timber trees. Dart's Vendors and Purchasers of Real Estate, p. 61. Duke of Chandos v. Talbot, 2 P. Wins. 606; Foster v. Leonard, Cro. Eliz. 1; Rabbett v. Raikes, Woodfall's Landl. and Ten. 457; and see 2 P. Wms. 606; Bullen v. Denning, 5 B. & C. 842.

[2] To constitute waste the injury must be of substance and material. Whether the acts done are prejudicial to the inheritance is for the jury to determine. Jackson v. Tibbits, 3 Wend. Rep. 241. And see Jackson v. Brownson, 7 Johnson 227; Hickman v. Irvine, 3 Dana, 123; Parkins v. Coxe, 2 Hayw.

Keeler v. Eastman, 11 Verm. Rep. 293; Paddleford v. Paddleford, 7 Pick.
Owen v. Hyde, 6 Yerg. 344.


339 ;


deemed waste.

What acts are is the most important part of the produce, it will not be

waste to cut timber, if necessary for its growth.(a)[3] And if trees be excepted out of a demise, waste cannot be commit

ted by cutting them down.(6) [*183] *The cutting of trees is justifiable for Estovers, as house

bote, hay-bote, plough-bote, and fire-bote.[1] The tenant

(a) 2 Ves. 162. 16 Ves. 176.
(6) Goodright v. Vivian, 8 East. 190.

[3] If a tenant, by an act of good husbandry, produces consequences of injury which could not reasonably be foreseen, he shall not be held guilty of waste. Thus, where a tenant diverted a creek into a swamp, whereby the trees were killed, and the lessor lay by twenty years, during which a new and better growth sprung up; held, no forfeiture of the lease for waste. Jackson v. Andrew, 18 John. 431.

[1] Every tenant has certain rights under his lease. Unless restrained from cutting wood altogether, he has a right to house-bote, fire-bote, plough-bote, and fence-bote. For the purposes of fuel, he is bound first to take the dry, fallen and perishing wood; for the purposes of erecting necessary buildings, he has a right to fell timber, and so for the other botes. At common law, no tenant can cut down timber, &c., or clear land for agricultural purposes, and the quantity of timber cut down never enters into the consideration, whether waste has or has not been committed; but it is always tested by the fact of cutting timber, without the justifiable excuse of having done it for house-bote, firebote, plough-bote, or sence-bote. A singie tree cut down without such justifiable cause, is waste as effectually as if a thousand had been cut down; and the reason is, that such trees belong to the owner of the inheritance, and the tenant has only a qualified property in them for shade and shelter. i Cruise, 62, 63, tit. 3, § 15 and 18; Jackson v. Brownson, 7 Johns. Rep. 227, per Spen

cer, J.

Every tenant for life is entitled, of common right, to take reasonable estovers, that is, wood from off the land, for fuel, fences, agricultural erections, and other necessary improvements. They are estoveria ædificandi, ardendi, arandi et claudendi. But under the pretence of estovers, the tenant must not destroy the timber, nor do any other permanent injury to the inheritance. 4 Kent's Com. 73, citing Co. Litt. 41; ib. 73.

Every tenant for life is entitled to estovers ; that is, to allowance of necessary wood, which he may take upon the land, without any assignment, unless restrained by special covenants; for modus et conventio vincunt legem ; but affirmative covenants do not restrain. 1 Inst. 41, b.

Spelman says, the word estovers, estoverium, is derived from the French word estoffe, material; it is used in this sense in the statute Westm. 2 c. 25, which gives an assise of novel disseisin de estoverzis bosci. It is called botes in the Saxon language, and is divided into three sorts : house-bote, which is twofold, estoverium ardendi et ædificandi ; plough-bote, estoverium arandi ; and, lastly, hay-bote, estoverium claudendi. Gloss. ; 1 Inst. 41, b. 13 Rep. 63.

It was resolved in 28 Hen. VIII. that where a lessor covenanted with a lessee that he should bave thorns for hedges, by the assignment of the lessor's bailiff, the lessee might cut thorns without assignment; for what

may take oak, elm, or ash for the repair of the house; and What acts are

deemed waste. if they are under sixteen years growth, and there is no un

the law gives by implication in the lease, that he may take without assignment; otherwise, wliere the lessee covenants negatively, that he will not take without assignment. Dyer, 19, b. Hob. 173.

Tenants for life may cut down timber trees, at seasonable times, for the reparation of houses or fences; but a tenant for life cannot cut down timber to build new houses, or to repair those that lie himself has improperly suffered to fall into decay. And where he cuts down more timber than is necessary, it is waste, though he asserts that he cut it down to employ it in future reparations 1 Inst. 53 b. 54; Vin. Ab. Waste, M.

In an action of waste, for cutting down three hundred oaks, the defendant, as to two hundred of them, pleaded that the houses let to him were ruinous, &c., and that he cut them down to repair those houses; as to the residue, that he cut them down, and kept them to be used in reparations, tempore opportuno, &c.

The plaintiff demurred in law, but the court held it no plea; for if it should, every farmer might cut down all the trees growing on the land, when there was not any necessity of reparations. Gorges v. Stanfield, Cro. Eliz. 593.

Where a tenant for life dies before harvest-time, bis executors will be entitled to the crops then growing on the lands, as a return for the labor and expense of tilling and sowing the ground, which the law calls emblements. Stewart v. Doughty, 9 Johns. 111, 112; 4 Kent's Comm. 109, 110.

This rule extends to every case in which the estate for life determines by the act of God, or the act of law; but not where it is determined by the act of the tenant. Thus, if a woman who holds lands, durante viduitate, which is an estate for life, sows them, and afterwards marries, she will not be entitled to emblements, because her estate determined by her own act. Debow v. Colfax, 5 Halst. 128; Hunt v. Watkins, 1 Humph. 498; Oland's case, 5 Rep. 116.

If an estate be made to a husband and wife during coverture, and the husband sows the land, and afterwards they are divorced, causa præcontractus, the husband will be entitled to emblements. For although this suit is the act of the party, set the sentence which dissolves the marriage is the judgment of the law; et judicium redditur in invitum. Oland's case, 5 Rep. 116; Gould v. Webster, 1 Tyl. 409.

Is, however, a person seised in fee of land sows with grain, and after grants it to one for life, remainder over to another, and the first grantee dies before severance, the person in remainder shall have the corn, and not the executors of the first grantee; for the reason of industry and charge is wanting. Hob. 132.

The word emblements only extends to such vegetables as yield an annual projit; so that if a person wbo is tenant for life plants fruit trees or oaks, ashes, or elms, &c., or sows the ground with acorns, his executors will not be entitled to them. But if a tenant for life dies in August, before severance of hops, his executors shall have them, though growing on ancient roots.

This determination was probably on account of the great expense of cultivating the ancient roots. 1 Inst. 55, b.; Craddock v. Riddlesbarger, 2 Dana, 206; Latham v. Atroud, Cro. Car. 515.

If the tenant be entitled to reasonable estovers for firewood, he must first use the dead and dry trees on the premises, and the cutting of green trees for

What acts are derwood, it is said that he may take them for fuel.[2] IIe

Пе has this privilege of common right, so that a covenant that

deemed waste.

such use, without necessity, is waste. Clarke v. Cummings, 5 Barb. 339. If cutting timber otherwise than for reasonable estovers work a forfeiture under the lease, the tenant cannot justify such cutting by the fact that he had procured firewood and fencing timber from other lands owned by him, and had cut no more upon the premises than would have been reasonable estovers. Ib.

A tenant for life has a right to take firewood for the use of those who occupy the land, and for her tenants and servants who do not live on the premises, so that it be taken in reasonable quantities, and without injury to the inheritance. Gardiner v. Dering, 1 Paige, 573.

[2] It is sometimes laid down, that the person who owns the particular estate is entitled only to the shade and fruit of the trees, together with the usual trimmings, or as they are called in the books, "loppings." But it seems that when the particular estate is a life estate the tenant may, of common right, take from the land wood necessary for fire and fences. 2 Blk. Com, 122; Co. Litt. 53. The tenant for life cannot justify cutting trees for firewood, or for fencing, unless he use the trees for those purposes on the land. Coke Litt. 53. Cro. Car. 593, 11 Coke's Rep. 82. If suitable wood for fire or for repairs does not grow upon the land, it is in the same way the misfortune of the tenant, as if suitable grass or grain for his use did not grow upon it. And he can no more be warranted in cutting wood of one description, and exchange it for wood of another description, than to cut and exchange it for corn and hay. A conclusive reason against any salo or exchange of trees by a tenant for any purpose, is to be found in the principle that the title of the trees where they may be cut, still, in all cases remains in the reversioner. 11 Coke, 82; 1 Cruise, 62. 7 Johns. 236, Spencer, J. The tenant is only empowered to cut and use them for specific purposes. A sale by him is a nullity, because he owns only a qualified use. What ought to be timber trees in this country, and whether they ever can be cut for agricultural purposes, are questions of some difficulty. (7 Bac. Abr. tit. Waste ; 7 Johns. Rep. 233; Eliott v. Smith, 2 New Hamp. Rep. 430.)

It was not waste in a tenant for life, to cut down timber trees for the purpose of making necessary repairs on the estate, and so sell them and purchase boards with the proceeds, for such repairs, provided this be proved to be the most economical mode of making the repairs. Loomis v. Wilbur, 5 Mason, 13. In this case, Story, J., in summing up to the jury, said: “The supposed waste in this case is so very small in point of value, that if a forfeiture is incurred, it must operate with peculiar severity. The jury therefore ought clearly to see, that the plaintiff makes out his case upon reasonable evidence. The question in cases of this nature is, whether the tenant has done any injury to the inheritance; for the averment in the declaration is, that the timber has been cut down to his disherison. If, under all the circumstances, what has been done, has been for the benefit of the estate, for necessary repairs, and for the interest of the remainder-man, then there has been no waste. Now it is admitted that the tenant is very poor and had no other means to repair; and that the re pairs were indispensable, and any longer omission would have been very injurious to the estate. The quantity of timber applied to the repairs is not pretended to be extravagant or unnecessary. But it is said, that the same timber which was cut down, ought to have been applied, and not sold, and that the sale was a per se waste. For this position reliance is placed in a ci


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