SMITH, O. J ,
(after stating the facts). 1st Exception. — We
do not see the force of an objection to an inquiry into the use made of the life estate in an issue as to waste, and .in showing that the method of cultivation follows the practice
and has the sanction of good farmers, and hence there has been no mismanagement or needless injury to the land, for which the defendant is accountable to the successors to the estate for actionable spoliation of the premises.
2d Ex. — The exception next taken, and alike untenable, is, to evidence offered to repel the charge of a wanton and reckless misuse of the premises, and that the tenant only derived her support from the land, the very purpose for which the law gave it to her, to be enjoyed while living. This will find a fuller explanation in the examination of the law defining the limits to which the law permits the tenant in dower to go in the use of her estate. If there were grounds of objection to the evidence, it is rendered harmless, by. the instructions given to the jury, for their guidance, afterwards.
3d Ex. — The pertinency of the proof of a verbal disposition made of the three acres specified, some few years previous to the matter in controversy, is not apparent, and the reasons for opposing its reception are still less so. The attempted sale amounts to nothing, and proves nothing of injury or advantage, so far as we can see, to either party.
And what force is there in the objection, that a writing was necessary to give any efficacy to the transaction, and itself was the best evidence of its existence and terms, when there was no writing or deed to produce ? We presume the exception is not properly set out in the transcript.
These exceptions disposed of, we come to the consideration of those that grow out of the instructions asked and refused, and such as are entered to the charge of the Court.
1st Instruction asked. — This could not be given without invading the province of the jury, to pass upon the testimony and ascertain what is proved by it, thus withdrawing the case altogether from their consideration and action.
2d Inst, asked. — This involves an erroneous statement of the law, for the life tenant may use, and dispose of as well,
fallen or dead trees on her dower, for fire-wood, or other purpose, as the use of such belongs to the dowress, and does not in law impair the inheritance.
3d Inst, asked. — The negation of the proposition in law', ■contained in the third exception, was proper for the same reason, the tenant not being absolutely under such instructions, such an act not being
waste in law,
When not
waste in fad,
as applied to the condition of the country, unless attended with injury and damage to the estate in remainder or reversion belonging to others. While, in its essential elements, waste is the same in this country and in England, being a spoil or destruction in houses, trees,.and the like, to the permanent injury of the inheritance, yet in respect to
acts which constitute
waste, the rule that governs in a new and opening land,' covered largely with primeval growth, must be very different. Where the proportions of arable and woodland are adjusted to give the greatest value to the farm in its present condition, a conversion of one kind into another may be in itself a W'aste committed, wdiile here the clearing of the forest growth and fitting the virgin soil, which it covers, for cultivation, w'hich is ordinarily an improvement, most valuable to the .property, and is not, nor can it he, injurious to the succeeding estate in fee. In the full and clear exposition of the law, as applied to limited estates, (and the cases decided are mostly cases of dower,) held in this State in gen-oral, we give our approval, as warranted by previous adjudications, in adjusting the relative rights subsisting between the tenant for life and the tenant in remaindermr reversion.
In an early case,
Ballentine
v.
Poyner,
2 Hay., 110, Haywood, J., says: “ I would define waste thus — an unnecessary cutting down and disposing of timber, or destruction thereof, upon w'ood lands, wdiere there is already sufficient cleared land for the widow to cultivate, and over and above what is necessary to be used for fuel, fences, plantation utensils, and the like,” adding, however, that if the lands are covered
with trees, such as juniper swamps, and can be put to no other use, and have value only in the growth upon them, then “the widow shall not be liable for waste for using such timber, according to the ordinary use made of the same in that part of the country.” To ■ which it may be proper to fix a limit to the denudation, that it do not exceed the annual increase from natural growth, which .replaces that portion of the trees removed.
In
Ward
v.
Sheppard,
in the same volume, at page 283 (461), Johnston, J., says: “that waste in this country is not to be defined by the rules of the English law in all respects, for cutting timber trees for the purpose of-clearing the lands was not waste here, though it was so in England,” but if the trees were cut for sale, this would be waste, and that “what shall be deemed waste, must be, in a considerable degree, in the discretion of the jury, upon evidence.”
In
Parkins
v.
Coxe,
reported in same volume, 339 (517), Taylor, J., announces the same rule as to cutting timber for other uses than repairs, and extends it to collecting and burning lightwood to make tar for sale, as a permanent injury, that would take several years to replace.
In
Sheppard
v.
Sheppard,
reported in same book, 382 (580), Hall, J., after examining numerous authorities cited by counsel, declares the law to be, that where “waste of insignificant value is
done scatteredly
through a whole tract,” the proposition, that the widow must lose the place wasted, is “too heavy a penalty, when the damage is to the amount only of a small sum,” and that should be deemed to be waste only, “ which is
substantially an injury to the inheritance.”
. These rulings, early made, have laid the foundations of the law on the subject of waste, as it declares and regulates the relations between the owners óf the separate estates, and it has been developed in the same direction in subsequent cases. Thus it is declared by the Court, Gaston, J., delivering the opinion, in
Shine
v.
Wilcox,
1 D. & B. Eq., 631, that
“
the cutting down of timber .is not waste, unless it does a lasting damage to the inheritance, and
deteriorates its value ;
and
not then, if no more was cut down than ivas necessary for the ordinary enjoyment of the land, by the tenant for life.”
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SMITH, O. J ,
(after stating the facts). 1st Exception. — We
do not see the force of an objection to an inquiry into the use made of the life estate in an issue as to waste, and .in showing that the method of cultivation follows the practice
and has the sanction of good farmers, and hence there has been no mismanagement or needless injury to the land, for which the defendant is accountable to the successors to the estate for actionable spoliation of the premises.
2d Ex. — The exception next taken, and alike untenable, is, to evidence offered to repel the charge of a wanton and reckless misuse of the premises, and that the tenant only derived her support from the land, the very purpose for which the law gave it to her, to be enjoyed while living. This will find a fuller explanation in the examination of the law defining the limits to which the law permits the tenant in dower to go in the use of her estate. If there were grounds of objection to the evidence, it is rendered harmless, by. the instructions given to the jury, for their guidance, afterwards.
3d Ex. — The pertinency of the proof of a verbal disposition made of the three acres specified, some few years previous to the matter in controversy, is not apparent, and the reasons for opposing its reception are still less so. The attempted sale amounts to nothing, and proves nothing of injury or advantage, so far as we can see, to either party.
And what force is there in the objection, that a writing was necessary to give any efficacy to the transaction, and itself was the best evidence of its existence and terms, when there was no writing or deed to produce ? We presume the exception is not properly set out in the transcript.
These exceptions disposed of, we come to the consideration of those that grow out of the instructions asked and refused, and such as are entered to the charge of the Court.
1st Instruction asked. — This could not be given without invading the province of the jury, to pass upon the testimony and ascertain what is proved by it, thus withdrawing the case altogether from their consideration and action.
2d Inst, asked. — This involves an erroneous statement of the law, for the life tenant may use, and dispose of as well,
fallen or dead trees on her dower, for fire-wood, or other purpose, as the use of such belongs to the dowress, and does not in law impair the inheritance.
3d Inst, asked. — The negation of the proposition in law', ■contained in the third exception, was proper for the same reason, the tenant not being absolutely under such instructions, such an act not being
waste in law,
When not
waste in fad,
as applied to the condition of the country, unless attended with injury and damage to the estate in remainder or reversion belonging to others. While, in its essential elements, waste is the same in this country and in England, being a spoil or destruction in houses, trees,.and the like, to the permanent injury of the inheritance, yet in respect to
acts which constitute
waste, the rule that governs in a new and opening land,' covered largely with primeval growth, must be very different. Where the proportions of arable and woodland are adjusted to give the greatest value to the farm in its present condition, a conversion of one kind into another may be in itself a W'aste committed, wdiile here the clearing of the forest growth and fitting the virgin soil, which it covers, for cultivation, w'hich is ordinarily an improvement, most valuable to the .property, and is not, nor can it he, injurious to the succeeding estate in fee. In the full and clear exposition of the law, as applied to limited estates, (and the cases decided are mostly cases of dower,) held in this State in gen-oral, we give our approval, as warranted by previous adjudications, in adjusting the relative rights subsisting between the tenant for life and the tenant in remaindermr reversion.
In an early case,
Ballentine
v.
Poyner,
2 Hay., 110, Haywood, J., says: “ I would define waste thus — an unnecessary cutting down and disposing of timber, or destruction thereof, upon w'ood lands, wdiere there is already sufficient cleared land for the widow to cultivate, and over and above what is necessary to be used for fuel, fences, plantation utensils, and the like,” adding, however, that if the lands are covered
with trees, such as juniper swamps, and can be put to no other use, and have value only in the growth upon them, then “the widow shall not be liable for waste for using such timber, according to the ordinary use made of the same in that part of the country.” To ■ which it may be proper to fix a limit to the denudation, that it do not exceed the annual increase from natural growth, which .replaces that portion of the trees removed.
In
Ward
v.
Sheppard,
in the same volume, at page 283 (461), Johnston, J., says: “that waste in this country is not to be defined by the rules of the English law in all respects, for cutting timber trees for the purpose of-clearing the lands was not waste here, though it was so in England,” but if the trees were cut for sale, this would be waste, and that “what shall be deemed waste, must be, in a considerable degree, in the discretion of the jury, upon evidence.”
In
Parkins
v.
Coxe,
reported in same volume, 339 (517), Taylor, J., announces the same rule as to cutting timber for other uses than repairs, and extends it to collecting and burning lightwood to make tar for sale, as a permanent injury, that would take several years to replace.
In
Sheppard
v.
Sheppard,
reported in same book, 382 (580), Hall, J., after examining numerous authorities cited by counsel, declares the law to be, that where “waste of insignificant value is
done scatteredly
through a whole tract,” the proposition, that the widow must lose the place wasted, is “too heavy a penalty, when the damage is to the amount only of a small sum,” and that should be deemed to be waste only, “ which is
substantially an injury to the inheritance.”
. These rulings, early made, have laid the foundations of the law on the subject of waste, as it declares and regulates the relations between the owners óf the separate estates, and it has been developed in the same direction in subsequent cases. Thus it is declared by the Court, Gaston, J., delivering the opinion, in
Shine
v.
Wilcox,
1 D. & B. Eq., 631, that
“
the cutting down of timber .is not waste, unless it does a lasting damage to the inheritance, and
deteriorates its value ;
and
not then, if no more was cut down than ivas necessary for the ordinary enjoyment of the land, by the tenant for life.”
In the further discussion, after repudiating the adaptability of the common law to this country, which is covered with forest, that clearing of it for cultivation, which is highly beneficial to the land, can be itself waste, he proceeds to say: “ Whether it has been beneficial or injurious to him (the owner of the succeeding estate in feel, is a question of fact, which must depend on the relative proportion of the cleared to the woodland, on the comparative value or worthlessness of the trees destroyed, and on the ordinary use made of the trees in the part of the country where the land is situated.”
Referring to the provision for the widow’s support in the assignment of dower, he says, '* such an use of the land as was necessary for that support, and as prudent proprietors were accustomed to make of their own, was deemed to have been intended in the provision, although the value of the estate might be somewhat impaired thereby. We also hold,” he continues,
“
that the turning out of exhausted lands is not waste.”
In
Carr
v.
Carr,
4 D. & B., 179, it was decided, that the widow might make turpentine from trees which her husband had opened in his life-time, and might box new pines, to make a crop not exceeding that he had made in his life-time upon the land. So the widow may clear for cultivation as much of the land as a prudent owner of the fee would, and sell the timber cut in doing so.
Davis v. Gilliam,
5 Ired. Eq., 308.
If done with a due regard to the proportion of wood and cleared land, she may clear what is necessary for the enjoyment of the estate. Nash, C. J., in
Lambeth
v.
Warner,
2 Jones Eq., 165.
It will be seen, from these citations and references, that the charge of the Court pursues the course of the adjudications upon the law of waste, and adapts it to the different aspects of the facts as shown in the evidence. It thus, becomes us to abide by the law as declared and reiterated by the Courts since the beginning of the present century, and ruled substantially in the charge we are now considering.
The real and important inquiry is, has the land been abused during the defendant’s occupancy by a spoliation unwarranted by the usage of prudent husbandmen in respect to their own property, to the impairment of it as a whole, in value; and to this point, no information seems to have been elicited, and no instruction to have been asked.
Those instructions and exceptions to the charge which are before us, relate to specific acts alleged to be waste, which, as. the cases show, are not recognized
asperse
waste, and not applicable to the condition of this State. '
We find no error in the directions given to the jury, and made the ground of exception in the appeal, which, without noticing each specifically, are all disposed of in what has been already said.
The case of
Dorsey
v.
Moore,
determined at this term, decides that trees severed by a life tenant, or by a stranger, from the land, unauthorized by law, and being waste, in its proper sense, by the act of separation become personal property, the title to which at once vests in the owner of the inheritance, and is not at variance with this opinion.
There is no error, and the judgment is affirmed.
No error. Affirmed.