THOMAS, Justice.
The bill by personal representatives and joint tenants sought injunction to prevent waste on real estate alleged to be - committed by the owner of the life estate and by one of the joint owners.
The suit was instituted by appellees filing their original bill of complaint to prevent the commission of waste by appellants on the southeast quarter' of section 11, township 10 south; of range 6 east in Etowah county, known as the Jake Reeves farm. The complainants are Luther G. Guest and Tom G. Guest as the executors of the last will and testament of John W. Guest, deceased (Sallie J. Guest, one of * the respondents, was the executrix), and seven of the nine children and distributees of said deceased; the said Luther G. Guest and Tom G. Guest, individually,
being two of the seven. The respondents in the bill are Milo Guest, one of the nine children and distributees of John W. Guest, deceased, and Sallie J. Guest, his widow and life tenant; also Hood Parton, a sawmill man who was sawing the timber into lumber. The other of the said nine children and distributees is Grace G. Guest, a daughter who is not made a party to the bill.
It is specifically averred, in effect, in the bill that the respondent Milo Guest, with the consent or connivance of Sallie J. Guest, was committing waste on the southeast quarter of the southeast quarter of the said section 11, township 10 south, of range 6 east, by cutting the valuable timber thereon of which its chief value consisted. It further appears, in effect, from the bill that the said John W. Guest died leaving a last will and testament in which he devised and bequeathed to Sallie J. Guest, his wife, an estate for life in all the lands of which he died seized and possessed, except the 80 acres known as the Elbert Teague place, which he devised and bequeathed to his daughter, Ada Bell Yancey, wife of Turin Yancey; that he devised to respondent Milo Guest and to Noah McKinley Guest the remainder in the farm known as the home place, which consisted of 280 acres; that in his said last will the said John W. Guest directed that, at the death of his said wife, Sallie J. Guest, all of said real estate, except that specifically devised and bequeathed to Milo Guest and Noah McKinley Guest and that to Ada Bell Yancey, be sold and converted into money which should be apportioned among his said legatees and distributees.
It is averred, in effect, in the bill that the said John W. Guest died owning several farms consisting of several hundred acres in Etowah county, and that under the terms of said will the widow, Sallie J. Guest, was entitled to all of the rents, income, and profits from said estate during her life, and that the duty and obligation was placed upon the said Sallie J. Guest by said John W. Guest in said will to pay the taxes and upkeep on said real estate. It also appears from the will that the duty and obligation was imposed on the widow to pay the annual installments due the Federal Land Bank on the place or farm near Attalla known as the Sitz place purchased from Ed. E. Smith; that the said respondent, Milo Guest, was threatening to cut timber off other lands of the said estate, and that the said Milo Guest cut said timber on said southeast quarter of the southeast quarter with the consent or connivance of the said Sallie J. Guest.
The names of all the legatees and distributees of the decedent are given in item 14 of the will. From the bill and the will it appears that Sallie J. Guest was the widow of the deceased; that Milo Guest and Grace G. Guest were two of his children, legatees and distributees; and that the other persons named in that paragraph of the will were the remaining seven of the nine children, or legatees and distributees.
It therefore appears from the bill and from the will that Sallie J. Guest is the owner of a life estate in the real estate, and that the complainants and Milo Guest and his sister, Grace G. Guest, were the owners as tenants in common of the remainder thereof, as we have indicated.
In the prayer of the bill appellees asked that respondents, including Hood Parton, be restrained and enjoined from cutting timber on the lands described in the bill (said S.E. J4)) or any other lands belonging to said estate, and that they be restrained from removing the timber which had already been cut by them, or the lumber manufactured from such timber.
A temporary injunction was granted as prayed for in the original bill. By the first assignment of error appellants contend that the trial court committed error in awarding the temporary writ of injunction.
Appellants Milo Guest and Sallie J. Guest, separately and severally, demurred to the bill of complaint and the .trial court overruled the demurrer. By the second assignment of error appellants insist that the trial court erred by that order.
In the interim, on the application of appellants, the trial court modified the writ of injunction so that, in effect, Milo Guest had the privilege and right of removing the timber from the land which he had cleared; and having sawed into lumber that which was fit for lumber, so that the tract of land which he had cleared could be placed in cultivation, upon appellants entering into a bond payable to appellees, he may sell the same.
The appellants Milo Guest and Sallie J. Guest filed their answer to the bill of complaint, in which, in effect, they denied that Milo Guest had been or was committing waste on said southeast quarter or any other lands, and ‘that the chief value of the lands from which he had cut or was cutting timber consisted of virgin timber standing thereon. In the answer they averred that the real estate or lands owned by the said John W. Guest, at the time of his death, consisted of five separate and distinct farms, acquired by him at different times, each of which was separately operated and maintained in farming operations, some of said farms being as far as ten miles apart, and one lying in Greene county, Ala.
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THOMAS, Justice.
The bill by personal representatives and joint tenants sought injunction to prevent waste on real estate alleged to be - committed by the owner of the life estate and by one of the joint owners.
The suit was instituted by appellees filing their original bill of complaint to prevent the commission of waste by appellants on the southeast quarter' of section 11, township 10 south; of range 6 east in Etowah county, known as the Jake Reeves farm. The complainants are Luther G. Guest and Tom G. Guest as the executors of the last will and testament of John W. Guest, deceased (Sallie J. Guest, one of * the respondents, was the executrix), and seven of the nine children and distributees of said deceased; the said Luther G. Guest and Tom G. Guest, individually,
being two of the seven. The respondents in the bill are Milo Guest, one of the nine children and distributees of John W. Guest, deceased, and Sallie J. Guest, his widow and life tenant; also Hood Parton, a sawmill man who was sawing the timber into lumber. The other of the said nine children and distributees is Grace G. Guest, a daughter who is not made a party to the bill.
It is specifically averred, in effect, in the bill that the respondent Milo Guest, with the consent or connivance of Sallie J. Guest, was committing waste on the southeast quarter of the southeast quarter of the said section 11, township 10 south, of range 6 east, by cutting the valuable timber thereon of which its chief value consisted. It further appears, in effect, from the bill that the said John W. Guest died leaving a last will and testament in which he devised and bequeathed to Sallie J. Guest, his wife, an estate for life in all the lands of which he died seized and possessed, except the 80 acres known as the Elbert Teague place, which he devised and bequeathed to his daughter, Ada Bell Yancey, wife of Turin Yancey; that he devised to respondent Milo Guest and to Noah McKinley Guest the remainder in the farm known as the home place, which consisted of 280 acres; that in his said last will the said John W. Guest directed that, at the death of his said wife, Sallie J. Guest, all of said real estate, except that specifically devised and bequeathed to Milo Guest and Noah McKinley Guest and that to Ada Bell Yancey, be sold and converted into money which should be apportioned among his said legatees and distributees.
It is averred, in effect, in the bill that the said John W. Guest died owning several farms consisting of several hundred acres in Etowah county, and that under the terms of said will the widow, Sallie J. Guest, was entitled to all of the rents, income, and profits from said estate during her life, and that the duty and obligation was placed upon the said Sallie J. Guest by said John W. Guest in said will to pay the taxes and upkeep on said real estate. It also appears from the will that the duty and obligation was imposed on the widow to pay the annual installments due the Federal Land Bank on the place or farm near Attalla known as the Sitz place purchased from Ed. E. Smith; that the said respondent, Milo Guest, was threatening to cut timber off other lands of the said estate, and that the said Milo Guest cut said timber on said southeast quarter of the southeast quarter with the consent or connivance of the said Sallie J. Guest.
The names of all the legatees and distributees of the decedent are given in item 14 of the will. From the bill and the will it appears that Sallie J. Guest was the widow of the deceased; that Milo Guest and Grace G. Guest were two of his children, legatees and distributees; and that the other persons named in that paragraph of the will were the remaining seven of the nine children, or legatees and distributees.
It therefore appears from the bill and from the will that Sallie J. Guest is the owner of a life estate in the real estate, and that the complainants and Milo Guest and his sister, Grace G. Guest, were the owners as tenants in common of the remainder thereof, as we have indicated.
In the prayer of the bill appellees asked that respondents, including Hood Parton, be restrained and enjoined from cutting timber on the lands described in the bill (said S.E. J4)) or any other lands belonging to said estate, and that they be restrained from removing the timber which had already been cut by them, or the lumber manufactured from such timber.
A temporary injunction was granted as prayed for in the original bill. By the first assignment of error appellants contend that the trial court committed error in awarding the temporary writ of injunction.
Appellants Milo Guest and Sallie J. Guest, separately and severally, demurred to the bill of complaint and the .trial court overruled the demurrer. By the second assignment of error appellants insist that the trial court erred by that order.
In the interim, on the application of appellants, the trial court modified the writ of injunction so that, in effect, Milo Guest had the privilege and right of removing the timber from the land which he had cleared; and having sawed into lumber that which was fit for lumber, so that the tract of land which he had cleared could be placed in cultivation, upon appellants entering into a bond payable to appellees, he may sell the same.
The appellants Milo Guest and Sallie J. Guest filed their answer to the bill of complaint, in which, in effect, they denied that Milo Guest had been or was committing waste on said southeast quarter or any other lands, and ‘that the chief value of the lands from which he had cut or was cutting timber consisted of virgin timber standing thereon. In the answer they averred that the real estate or lands owned by the said John W. Guest, at the time of his death, consisted of five separate and distinct farms, acquired by him at different times, each of which was separately operated and maintained in farming operations, some of said farms being as far as ten miles apart, and one lying in Greene county, Ala.
In their answer they also denied that Milo Guest had threatened to cut timber on the other lands. In effect, they set out in it that Milo Guest, with the consent of the life tenant, his mother Sallie J. Guest, did clear, for the purpose of placing in cultivation, a part of said southeast quarter of the southeast quarter measuring not more than 20 acres, and at the time of the filing of the bill and the issuance, of the temporary injunction, a great part of the timber which had been cut remained lying on said 20 acres; that in the lifetime of said John W. Guest a great deal of the virgin timber, or timber suitable for lumber, had been cut, and that at'the time Milo Guest cleared said 20-acre tract a comparatively small amount of such standing timber remained on it; that of the said 160-acre Reeves- tract, from SO to 60 acres had been cleared many years before, a large percentage of which had become worn, eroded, and nonproductive and, therefore, not suitable for cultivation; that the cleared land on said farm was not in the proper proportion to. the timber land on it; there being about 60 acres of cleared and 100 acres of timber land, and that it was to the advantage of said farm and the conduct of farming operations on it, that additional land be cleared, which, it is averred, rendered said farm ‘ of greater value instead of diminishing the value thereof, and that, therefore, said 20-acre tract was not being cleared for the purpose of selling the timber therefrom, but, as aforesaid, for the purpose of affording more cultivatable lands on that farm; that there was not sufficient cleared productive land on it to conduct a separate farming operation thereon. In their: answer appellants by full, clear, and explicit averment show that Milo Guest was not committing waste, but was improving and enhancing the value of the Reeves', farm and placing it in such shape as adequate farming operations could be con-; ducted on it, and that the value of saidj farm as a whole had been increased and ‘ not diminished by the clearing of said twenty acres. The answer shows that! waste was not being, or had not been,’ committed. It put in issue the right of a tenant in common of the remainder, under ■ the direction and authority of the life tenant, to clear land, not out of proportion to the remaining timbered land, for the purpose of putting the additional cleared land to cultivation, and of making, profitable farming operations on the particular farm, the cleared -land to take the place of land that had theretofore been, cleared, eroded, worn, and so depleted as it was not fertile and would not profitably grow crops; the clearing leaving the farm as a whole of greater value than before the clearing.
The appellees cross-assigned error challenging the action of the trial court in not decreeing adequate damages to the reversion, for the value of the timber or lumber from the trees alleged to have been unlawfully cut by defendants; and for the modifying of the injunction to the cutting of timber only “on the H. P. Smith lands and the ridge lands known as the Jake Reeves lands.”
The court having taken jurisdiction for the purpose of injunction may ascertain and decree damages to real property. It is incidental to the equity of the bill. The measure of damages caused by destruction of timber is the diminished value of the land so caused. Recoverable damages are not fanciful, but such as affects an ordinarily reasonable man in the use of property, of the nature, location, use, and time as is pertinent. Howell v. City of Dothan (Ala. Sup.) 174 So. 624.
In an action to recover damages to reversionary interests in lands, by cutting and destroying timber thereon, the measure of damages is the injury to the estate by reason of the destruction of the trees, and not the value of the timber cut. Lowery v. Rowland, 104,
Ala. 420, 16 So. 88; Riggin v. Hogg, 203 Ala. 243, 82 So. 341; Fuller v. Fair, 202 Ala. 430, 80 So. 814; Stoudenmire v. DeBardelaben, 85 Ala. 85, 4 So. 723.
In this connection it should be borne in mind that a proper deference must he shown to the judgment of a cotenant in possession and in the management of property partly his own. Walshe v. Dwight Mfg. Co., 178 Ala. 310, 317, 59 So. 630; Jasper Land Co. v. Manchester Sawmills, 209 Ala. 446, 96 So. 417. In Westmoreland v. Birmingham Trust & Savings Bank, 214 Ala. 593, 595, 108 So. 536, 46 A.L.R. 1201, the observation is made that making merchandise of standing timber by a life tenant is waste, whether committed actively or permissively. Jones et al. v. Sandlin, 205 Ala. 67, 87 So. 850.
At an early date, Mr. Justice Goldthwaite stated the rule in protection of timber rights of a life tenant, and his ruling has had a constant observance in this jurisdiction. Alexander et al. v. Fisher, 7 Ala. 514, 518. It is there observed:
“ * * * We desire not to be understood as asserting, that a tenant in dower, has the absolute right, at pleasure, to cut down or otherwise destroy the growing wood upon the dower lands. Doubtless all such tenants are entitled to house bote, fire bote, and fence bote; in bther words, to the timber necessary for fire wood, and for the repairs of the buildings and fences upon the dower lands; but beyond this, it seems that the tenant’s right does not extend, except it be within the' rule before recognized, to wit: that the change from woodland into arable, is productive of no lasting injury to the inheritance.
“It will probably be found also, that such a tenant has no right, under any^ pretext, to destroy groves of timber, or trees planted for shade or ornament.”
The well-considered and later authorities are to the further effect that the tenant for life has the right to cut timber for the purpose of clearing the land, provided the part cleared, with that already prepared for cultivation, as compared to the remainder of the tract, “does not exceed the proportion of cleared to wooded land usually maintained in good husbandry : and provided, further, that he does not materially
lessen the value of the
inheritance 21 A.L.R. 1016, note; Zimmerman Mfg. Co. v. Wilson, 147 Ala. 275, 40 So. 515; Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am.St.Rep. 58.
It may be here noted that the effect of Westmoreland v. Birmingham Trust & Savings Bank, 214 Ala. 593, 108 So. 536, 538, 46 A.L.R. 1201, was that the sale r of standing timber by a life tenant is waste, and he is liable therefor, whether committed actively or permissively; that the guardian having sold standing timber rendered him prima facie liable for same, notwithstanding he had a life estate in the land; and that the life tenant has no right of user for his life in funds derived from wasting the inheritance. It was merely observed that the rule stated “is subject to certain incidents of the life estate in the matter of clearing 'lands for cultivation and marketing timber removed.”
The holding in Jones et al. v. Sandlin, 205 Ala. 67, 87 So. 850, was that a life tenant was not entitled to commit waste by cutting timber, and by such cutting, the timber removed becomes the property of the remainderman whether cut by the life tenant or a third person.
The last-cited cases and others recognize the right of the life tenant to clear lands in accord with the administration of good husbandry. This right only gives the privilege to sell timber cut from such land as is necessary to fit the land for agricultural purposes, and out of such sale there may be reimbursement for the reasonable expense of clearing, removing, and fitting the land for agriculture, according to the rule of good husbandry, under the circumstances of the particular case. The balance of the proceeds from such a timber sale, at its reasonable market value, is the property of the joint owner or remainderman.
The right to reduce to cultivation by the cutting and removing of timber, under the 'rule of the well-considered cases, will not warrant the life tenant in retaining all the proceeds of such timber sale. That is to say, in this case, the life tenant and co-operating remaindermen were properly held accountable for the difference between the reasonable market value of the sale of timber from the land so cleared, and the reasonable market or contract price required
and paid in fitting the land for cultivation, according to the rule of good husbandry, and as it obtains in this jurisdiction.
In its decree, the circuit court held, among other things, as follows:
“The court is further of the opinion that Respondents Mrs. Sállie J. Guest and Milo Guest, committed waste in cutting more merchantable timber on said above described lands than was necessary, and that the cutting of said timber was prejudicial and worked a substantial injury to the inheritance of those entitled to the reversion or remainder. The evidence being without conflict that the merchantable timber derived from that portion of the Reeves land in converting it from woodland into arable lands was all sold and no part of it was used for the construction of a barn on the said Reeves place, and said H. P. Smith place. And that the merchantable timber for the building of said barns was all cut from the said H. P. Smith lands, there being an excess of merchantable timber cut from the Reeves land, to build both of said barns.
“ * * * and decreed by the Court that the said Sallie J., Guest and Milo Guest be, and are permanently enjoined during the life of said Sallie J. Guest from cutting timber from the said H. P. Smith land and the said Reeves land, subject to the right of Mrs. Sallie J. Guest to cut from said lands the timber necessary for fire wood and for the repairs of the buildings and fences upon said lands, and the use of said lands by her during her life time as is consistent with prudent husbandry, and as is productive of no lasting injury to the inheritance.”
The evidence is voluminous and has been examined. We are of the opinion that the judgment of the trial court is supported by the preponderance of the evidence. The cross-assignments of error of appellees are not well taken or sustained.
The decree of the circuit court is in all respects affirmed.
Affirmed.
ANDERSON, C. J., and FOSTER and KNIGHT, JJ., concur.
GARDNER and BOULDIN, JJ., concur in result.
BROWN, J., dissents.
GARDNER and BOULDIN, JJ., concur in the result on the question of fact as to waste by the life tenant, but consider the question of law in reference thereto is more correctly stated in the dissenting view of Justice BROWN.