Calhoon, J.,
delivered tbe opinion of the court on the first decision of the cause.
This is a bill to enjoin the appellant from further cutting or removing timber from a sixteenth section, which- it held under a lease of ninety-nine years, and for an accounting of that already cut, on the ground that such cutting was waste. The bill charges that the cutting was purely for sale, and that the avowed purpose is to cut and remove the entire timber growth, and solely for commercial uses. It charges that the lease was made in 1882, for the sum of $885, and, as will be particularly noted, states as follows: “That said land, by reason of the character of the soil, is unfit for cultivation, and that the only value it possesses is given it by the merchantable pine timber growing thereon.” The lease is under Code 1880, § 132, pursuant to appraisement under that section, of “the value of the land.” A demurrer to this bill was filed on the grounds, first, that the right to cut was contemplated by the parties to the lease; second, that the title to the trees was vested by the lease; third, that the bill showed that the lease was of no value, except for the trees; and, fourth, that there is no equity on the face of the bill. This demurrer was overruled, and the timber company appeals to settle the principles of the case.
It is apparent that the scope and meaning of the lease, and the intent and understanding of the parties to it, must be determined by the act of 1833 in reference to such leases of school lands, construed in the light of the common law, and the condition of the country at that time, and the usage of the country since. It must be noted that no question was ever made of the right of such lessees to do what they pleased with the growing timber until about six years ago. We will first [500]*500invite the attention of the profession to a careful consideration of the common law, and then examine the statutes read in the light of the then situation in the state. There is no decision as to waste on ninety-nine year leases of public lands in any other state that we can find.
In 28 Am. & Eng. Ency. Law (1st ed.), p. 891, the text is as follows (see, also, 30 Am. & Eng. Ency. Law [2d ed.], p. 258 el seq.) : “At the common law a tenant for life or years was not liable for waste, because it was presumed that the demise or lease creating his estate would have provided against waste if it were to be prohibited; but the common law was changed by the statutes of Marlebridge (52 Henry III.), and Gloucester (6 Edw. I., c. 5), and tenants for life or years were made liable for waste. These statutes have been modified, and some of their provisions re-enacted, in some of the states of the union, or are considered a part of their common law.” The statute of Marlebridge referred to in the text was ordained A.D. 1269, and that of Gloucester A.D. 1278, before when we may assume that England, in the particular of forest growth, bore some resemblance to Mississippi in 1833. Note 2 to the text of the encyclopaedia cites Moore v. Ellsworth, 3 Conn., 483, and Poe v. Hardie, 65 N. C., 447, and reproduces the language of Lord Coke, 2 Inst., 300, as follows: “For that the law created their [tenants in dower and by the curtesy] interests, therefore the law gave against them a remedy; but a tenant for life or years came in by demise and lease of the owner- of the land, etc., and therefore he might in his demise have provided against the doing of waste by his lessee, and, if he did not, it was his negligence and default.” It may be noted here that Lord Coke (Inst. by. 2, *634, *635) repeats this doctrine in these words: “In this particular case the statute of Gloucester, which giveth the action of waste against the lessee for life or years (which lay not against them at common law),” etc. So, in the note to top page 266, vol. 3 of Thomas’ edition of Coke upon Lyttleton, it is stated that [501]*501a person holding for life or years, by grant, was not liable to an action for waste unless restrained from it by the terms of the lease, “because it was in the power of the person who created the estate to impose such terms on the tenant as he thought proper.” The annotation then says: “Sed vide Brae-ton, lib. 4, c. 18; 2 Reeves’. Hist., 73, 74, 148” — •thus indicating that these authors differed with Lord Coke, as they in fact do, as to the scope of the common law in the remedy for waste. See Einlason’s edition of Reeves.’ Hist, of English Law, vol. 1, p. 386, and vol. 2, pp. 58, 59, and notes. In Thomas’ edition of Coke upon Lyttleton, vol. 3, top page 272, we find it for the third time stated by this high authority that “a prohibition of waste did lie against tenant by curtesy, tenant in dower, and a guardian in chivalry, by the common law, but not against tenant for life or years, because they came in by their own act, and he might have provided that no waste should be done.” See, also, 2 Saunders (by Williams), 47e, and 3 Saunders (by Williams), 252, and note 7, and Pryne v. Dor, 1 Durnford & East) 55, keeping in mind that there is no question whatever of equitable waste in the case we now have before us. It is either legal waste or nothing. The English work of Woodfall on Landlord and Tenant (1 Am. Ed., by Webster), vol. 2, p. 609, says: “At common law an action for waste lay only against tenants by the curtesy, tenants in dower, and guardian, whose estates were created by act of law. But tenants for life or years had an interest in the land by the act of the lessor, who might and ought to have provided against waste by some express covenant or condition; and such tenants were not liable at common law either for voluntary or permissive waste.” See, also, citations in note “d.” This author then proceeds to consider the statutes of Marlbridge and Gloucester, changing the common law, and on page 611 he says: “A tenant at will is not within the statute, and therefore not Hable upon the statute for either kind of waste, although, if he commit waste, he thereby in effect determines his tenancy,” etc. In Smith on [502]*502Landlord and Tenant, another English work of high reputation, we find on top page 24-0 the following: “At common law there was a distinction between the tenants of estates created by the act of the law and tenants of estates created by the contract of the parties; the former having always been punishable-for committing.waste, and the latter not so. Thus tenant by the curtesy or in dower was at all periods of the law restrained from waste; tenant for term of years was not so. And the reason of this distinction was that it was thought it would be a hardship if the law were to give the estate without restraining the person to whom it was given from doing injury to the inheritance, while it was thought to be a hardship on a person who had let a tenant in by express contract, and who had the power of inserting in the contract stipulations against the commission of waste, it was thought to be no hardship upon him to leave the tenant in the same situation in which he had himself placed him by the contract.” This author then shows the change in the law worked by the statutes of Marlebridge and Gloucester.
In all discussions of waste in the texkwriters and the reports it will be seen that they have reference to leases, since those statutes in nearly every instance, and that there is no difference about what the common law was before those statutes. In 3 Washburn on Real Property, sec. 270, the common law rule is stated as in Smith and Woodfall, supra. In the opinion in the case of Moore v. Ellsworth, 3 Conn., 487, 488, is this language: “It is said by Sir Edward Coke (2 Inst., p. 145) that waste was punishable at common law in tenant in dower, tenant by the curtesy, and a guardian, but not in tenant for life or for years; and for the distinction he assigns this reason: That the law, which created the former of these estates and interests, provided a remedy itself against waste, but left the owners of land, who created the others, to provide a remedy in their demise. This reason, Reeves, in his History of the English Law, considers as only plausible, and the diversity as [503]*503ideal. But, visionary as lie supposes it to be, it bas b.een embraced as sound by tbe most eminent English jurists; and tbe common law, as stated by Lord Coke, bas been recognized by all tbe respectable law writers in England to tbe present time. And it must not be forgotten that Sir Edward Coke appeals to ‘the rule of tbe register’ for tbe doctrine which be affirms. Chief Baron Oomyns, whose, opinion alone was said by Lord Kenyon to be an authority, declares in bis Digest that ‘by the common law waste did not lie against lessee for life or years; for it was laches in tbe lessor that be did not provide against waste.’ Title ‘Waste,’ A, 2. In the second volume of bis Commentaries, 282, 283, it is said by Sir William Blackstone that ‘waste was not punishable in any tenant save only in three persons, guardian in chivalry, tenant in dower, and tenant by tbe curtesy, and not in tenant for life or years. And tbe reason of tbe diversity was that tbe estate of tbe three former was created by act of tbe law itself, which, therefore, gave a remedy against them; but tenant for life or for years came in by tbe demise and lease of tbe owner of tbe fee, and therefore be might have provided against tbe committing of waste by bis lessee; and, if be did not, it was his own fault.’ It is laid down by Cruise, in tbe first volume of bis Digest (p. 68, sec. 35), that ‘by tbe common law, where lands were granted to a person for life, be was not liable to an action for waste, unless be was restrained by particular words in bis conveyance from committing waste, because it was in the power of tbe person who created tbe estate to impose such terms as be thought proper.’ If it be said that tbe persons whose works are cited found themselves on tbe doctrine and reasons of Sir Edward Coke, it will not be denied. It only proves that tbe authority of Bracton (on whom Beeves stands) cannot stand in competition with tbe transcendent authority of tbe great law luminary in tbe opinion of celebrated jurists perfectly capable of appreciating their respective merits. The law, as applicable to tbe situation of this, as of tbe mother country, accompanied our [504]*504ancestors in their migration hither; and, having never been abrogated or altered, it is the law of the state at the present time.” Accordingly the Connecticut-court sustained the right of a tenant for life to cut down and. sell the timber. In 2 Minor’s Inst., 546, the author states the common law rule as we have stated it — -that tenants for life or years, by contract, are not liable for waste. In Poe v. Hardie, 65 N. C., 449, the court declined to follow the common law, and held that the occupant of a homestead, although an estate created by law, and not by contract, was not liable for waste. In Hastings v. Crunckleton, 3 Yeates (Pa.), 261, the court, in a case against a widow for waste in dower lands, said there was “a material difference between the local circumstances of this’ state and Great Britain. It would be an outrage on common sense to suppose that what would be deemed waste in England could receive that appellation here. Lands in general with us are enhanced by being cleared, provided a proper proportion of woodland is preserved for the maintenance of the place. If the tenant in dower clears part of the land assigned to her, and does not exceed the relative proportion of cleared land considered as to the whole tract, she cannot be said to have committed waste thereby.” The court had in view here the case of an improved and inhabited tract of land, and not the case before us, but still would not be bound by the universal rule of the English common law that tenant in dower was liable for waste, because of the different conditions here. In Findlay v. Smith,, 6 Munf. (Va.), 142 (8 Am. Dec., 733), Judge Oabell said: “The law of waste in England varies, and accommodates itself to the varying wants and situations of the different counties in that country. Thus what is waste in one county is not waste in another. On the same principle, the law of waste, in its application here, varies and accommodates itself to the situation of our new and unsettled country.” Further on in his opinion he says, on page 145’ of Munf. (8 Am. Dec., 733) : “A tenant [505]*505for life of a mine of coal may use it till he exhausts it, even although the interest of the remainderman may be thereby entirely destroyed. If this be the case when the thing itself is consumed by the use, never to be reproduced, a fortiori the right' exists in the case of wood, which will reproduce itself in a series of years.” In this case Judge Coalter and Judge Brook held to the same views with Judge Cabell. Judge Roane dissented in so far as it was held that all the wood might be cut, but is in full accord as to the law of waste varying with varying conditions. See, also, Sherrill v. Conner, 107 N. C., 630 (12 S. E., 588); Ward v. Sheppard, 2 Hayw. (N. C.), 283 (2 Am. Dec., 625), was a case against a widow for waste of dower lands, inhabited and partly cleared, and the court sayá: “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. If lands were leased to a lessee in an uncultivated state, he must of necessity have the power to clear; otherwise the lease would be of no profit or advantage to him. The same is the case of dower lands.” The opinion, however, proceeds to hold the particular case that, if the widow had cut the trees, not merely for clearing, but for sale, she would be liable. On the same line is Jackson v. Brownson, 7 Johns. (N. Y.) 227 (5 Am. Dec., 258).
As before indicated, all the decisions in this country on the subject of waste have reference to waste on farms in cultivation. Many of the states have re-enacted the statute of Marie-bridge and Gloucester in ohe shape or another, and some courts have simply followed the English decisions on these statutes as if they announced the common law. But these statutes have not, and never did have, any force in Mississippi. English statutes have no force in,this state since the act of 1807. Jordan v. Roach, 32 Miss., 482; Sessions v. Reynolds, 7 Smed. & M., 130; Boarman v. Catlett, 13 Smed. & M., 149; Ingraham [506]*506v. Regan, 23 Miss., 213. Even the common law has no force where not adapted to “our institutions and circumstances.” Railroad Co. v. Patton, 31 Miss., 156 (s.c., 66 Am. Dec., 552) ; Green v. Weller, 32 Miss., 650; Crane v. French, 38 Miss. 503. So, in determining adaptitudes to our condition our courts are continually building up a common law of our own. However, the courts of no state have gone further than those of our own in holding that the common law, where not repugnant to our institutions, conditions and circumstances, must always -prevail unless displaced by plain statute. So, if seen fit, this case might go off on the reasoning that it required English statutes, of no force in our state, to make a tenant for years liable for waste. The sages of the common law held a tenant for years not so liable on the assumption that, if he was to be, it wóuld have been so expi’essed in the lease. We have no statute of waste, and our common law is what this court may declare it, and why shall not our judgment be with the early judges of England, that a tenant for ninety-nine years shall not be liable for waste, because, if it were intended he should be, it would*" have been so declared in the statute providing for such a lease. In England the common law varies with different counties as to the subjects of which waste is predicable, and the judges here, in declaring the law, should have regard to the conditions. Waste is an injury to the remainder or reversion (the fee), something that lessens the value of the estate. Who can say that removing the pine trees will injure the estate to. the taker of it ninety-nine years hence? To hold the removal waste when, manifestly, that was the very ,purpose of it, seems quite harsh. Judge Strong, in Heil v. Strong, 44 Pa., 264, said the statute of Pennsylvania was not applicable when the very purpose of the lease was to get the timber. At common law, when a mine is leased, the lessee may exhaust it, for he is simply pursuing his right. See 6 Munf. (Va.), 134 (8 Am. Dec., 733) ; 44 Pa., 264; Owen v. Hyde, 6 Yerg. (Tenn.), 334 (27 Am. Dec., 467); 107 N. C., 630 (12 S. E., 588).
[507]*507By universal understanding the lessee for ninety-nine years of sixteenth section lands acquired all of'the rights of an owner in fee for the time. The long time, the public necessity for clearing, the fact that practically the whole state was forest in 1833, the uncertainty of the future, the fact that the soil of a great majority of these sections in the pine regions was regarded as absolutely worthless for agriculture, the absence of any provision for liability of the tenant of any sort, the carelessness of our people about anything so long off, all argue persuasively for the immunity of the lessee. Twenty years’ growth is held to constitute timber. In case of a lease for ninety-nine years, or other long periods, the trees being cut away, the land will reproduce the trees several .times over before the right of the reversioner accrues. David said: “There is hope of a tree, if it be cut down, that it will grow again,” and we know that land denuded of its growth will reproduce. Who can say, in this case, that the interest of those who come after will be harmed by removing the timber ? Aside from all else, the fact that the lands were authorized to be sold for ninety-nine years, in the then condition of the state, without any limitations, restrictions, or conditions, would no doubt cause the sages of the common law to hold that the lessee was vested with the rights of an owner, and not answerable for the destruction of timber. It seems, then, that at the common law a tenant for life, by lease, was not liable for waste. But it is not necessary, in the case at bar, to determine whether the common law did, or whether existing law does, make such tenant for life, or tenant for years or at will, so liable. That must, when it maybe necessary to settle it, be decided on the condition of our country, the practice and custom of our people, and the circumstances of the particular contract.
After the' foregoing necessary review of the decisions on the common law, it is necessary to examine the legislation of Mississippi, in order to ascertain the intention of the parties in a contract for a ninety-nine-year lease of sixteenth section [508]*508school lands made in the year 1833. The first settlement of this state was along water courses, and the lands and timber had practically no value, unless near little towns and villages. Even in the 50’s, except on the strips of alluvion along streams, timbered land was not regarded, and, within thirty years past, public lands were sold in fee at five, ten, fifteen and twenty-five cents per acre. As late as 1877 public lands, of equal value with sixteenth sections, were authorized to be sold outright at a minimum value of twenty-five cents per acre. Pamph. Acts 1877, p. 34. Taking the history of the legislation about these sections, we find that in 1818 the justices of the county court were authorized to make leases for not more than three years, and that, “in all cases, the lands shall be protected against improper waste of soil and timber.” This act is silent as to the terms of the conveyance by the lease. In 1824 an act provided that five trustees be elected by the resident heads of families, and it authorized these trustees to lease for not longer than five years, and provided that they “faithfully preserve the school lands and timber thereon from all improper waste, and shall institute suits against any person or persons, tenants as well as others, who may be found damaging, in any manner, the lands, timber or improvements, reserving to tenants the full liberty of their several leases.” It is fair to presume that in these two acts the legislature had in mind that without these provisions there would be no liability, because of the common law, for waste without express provision for it. But it turned out to be utterly impracticable to make these leases witli prohibition of waste, except in scattered instances, where the lands were in or near towns. Nobody wanted them. The act of 1833 reviews the whole subject and authorizes the leases for ninety-nine years, which leases shall “convey the right, title, use, interest and occupation of said sections,” and by an act of 1841 (Laws 1841, p. 127, c. 25) the lessees can sue as if they were “the fee simple owners of the leased premises, except as against the lessors.”
[509]*509The precise question, is, what was the understanding of the parties to the leases of sixteenth sections under the law of 1833 ? In that year there were less than five inhabitants to the square mile in a state with 16,000 square miles of territory, capable of supporting 20,000,000 of population, and then be considerably less densely settled than several of the kingdoms of Europe. The vote in a heated election for governor in 1833 was less than 13,000. Timber was not considered at all. It cumbered the earth. It had no value, except along streams capable of floating logs, or of easy haul to occasional small sawmills. The lands themselves were, except in the instance hereinbefore adverted to, of small, if any, value, and in the pine regions, where those in controversy lie, generally regarded as worthless, “barren wastes,” infertile and unproductive, unfit for agriculture. There was, perhaps, the idea, with some of the far-sighted, that the timber at some remote period might be of some worth. Certain it appears to be that there could not have been any sale or lease of such wild lands, except for the timber on them. A lease for life, by fiction of the law, is regarded as of greater dignity than for any period of years; but, in fact, we know that a lease for ninety-nine years is far more desirable and of much greater market value than one for life. It is incredible, then, that in 1833 any sane man would have leased a pine barren for ninety-nine years, except for the timber on it. It is equally incredible that the state (the lessor) could have had any other idea in demising for a period so long that forests reproduce themselves, in the same, or often more desirable, growth, several times over. Such cases cannot be assimilated to ordinary leases of improved lands in the then condition of the country. In this view the terms of the lease, unheard of in such instruments, conveying, as required by law, “the right, title, me, interest and occupation,” become of great significance, the more especially since there was no market for leases with any reservation as to waste.
[510]*510The criterion of damage is the injury to the reversion!. Who can say there will be any here? Who can say that it will not be restored in a much more valuable condition? Can waste be predicated of the removal and sale of all the timber, where fine brick building’s have been erected on the plot of their growth? Such is the case in several instances in towns and cities of the state. There could have been no intent or expectation of either party to restrict the cutting of trees, and such was the public and universal construction of these leases by the unquestioning usage of about seventy years. The case of Warren County v. Gans, 80 Miss., 76 (s.c., 31 South. Rep., 539), cites in its support Jackson v. Brownson, (N. Y.) (5 Am. Dec., 258) ; but it must be noted that in that case there was an express covenant, to which the court said it was tied down, against waste, and the lease was of a farm, and the court said the covenant prevented consideration of intention. It also cites Mooers v. Wait, (N. Y.) (20 Am. Dec., 667) ; but there the lease was for four years, with condition that the lessee should have full title only on compliance with conditions named. We approve both these cases. Note that both are New York cases. However, they throw no light on the question here as to the intention of the parties to the contract before us, viewed in reference to its terms and the conditions in Mississippi. . It follows that we were in error in the Cans case, as it should be overruled. In New York the statute of Gloucester was in force. Before the Cans case we are not directed to any decision, and we find none, on the ninety-nine year leases of public school lands, and so must decide on our own statutes and the history of our own conditions, and are not bound to the same view in reference to the usual leases of farm lands. As to these, the courts will consider whether a common law has not grown up here from custom and usage, and from these .will ascertain the intent of the parties. Thruston v. Mustin, 3 Cranch. C..C. (U. S.) 335, Fed. Gas. No. 14013, is conclusive, [511]*511so far as it goes, in favor of this opinion. Judge Crawch plainly shows that except for the statute of Gloucester being in force and adopted in the constitution and bill of rights of Maryland, the decision would have been the reverse of what it is. Besides, in that case, the lease was of a cultivated farm and a personal private lease, and the waste confined to the cutting of “young and green wood,” and the terms of the lease the usual terms.
This case falls distinctly in the class referred to above, where the statute of Gloucester is put in force by enactment. There is, as before stated, another class of cases, which assume that statute to be in force as common law without discussion. If it can be said of any principle that it is immovably fixed in the law of Mississippi, it is that no statute ever enacted in Great Britain has any force here unless re-enacted by our own legislature. Jordan v. Roach, 32 Miss., 481; Boarman v. Catlett, 13 Smed. & M., 149; Sessions v. Reynolds, 1 Smed. & M., 130; Ingraham v. Regan, 23 Miss., 213. Surely any assault on this proposition need not be noticed. It follows, therefore, that the statutes of Marlbridge and Gloucester are nullities so far as this state is concerned, and it is the law of this state, as applicable to a . ninety-nine-year school land lease of this state, which we are considering. On this we are driven to the common law existing before those statutes, and which, by all the decisions, is the law here, so far as suitable to our conditions at the date of the contract. To learn what this common law is, we have quoted three distinct utterances of Lord Coke. If these are “idle talk,” and so to be considered by the profession, though sustained by nearly all of the learned law writers and judges who have treated the subject, of course there is an end to argument on that line; but this would not affect our conclusion from a proper interpretation of the statutes of Mississippi and of this particular lease. Our view is that this lease, in view of [512]*512the conditions existing in 1833, the course of legislation, the terms of the act authorizing it, and the understanding of the people for seventy years, was intended to convey, and did convey, absolute ownership for the ninety-nine years. The statute orders the trustees “to convey the right, title, use and occupation” for ninety-nine years.
It is contended that the act of 1833 is not a repeal as to waste, but an amendment of the act of 1824, and that Hutchinson says so. We deny both propositions. The last act reviews the whole subject and is silent as to waste. Hutch. Code, pp. 205, 210, 213, c. 9, arts. 2, 5, 12. The machinery for leasing is unaffected. The terms of the law show the intent. It is idle to cite cases, in which the boohs abound, that waste is predicable of all leases. These are all, in all instances, from states where the statutes of Marlbridge and Gloucester are in force, and from nowhere else. Everywhere else the question of waste can or cannot be implied in reference to the common law as applied to local conditions. In Smith’s. Manual, an English hornbook for boys, the two statutes are, in general terms, taken as common law; but in his elaborate and extended work of Landlord and Tenant, as before shown, he states the rule as Lord Ooke does and as we do. It is idle, also, to confuse legal with equitable waste, and produce authorities on this. Here the question is one of the intent of the parties to the contract. Here the timber is the only thing of value in the present lease, and was of no value at all in 1833. The idea that the universal demand is to sustain suits for waste is without a place in courts. And so of the idea of the benefits to unborn children. The only question is what the law is. The people want to be honest. But it is not true in fact. The children will be benefited throughout the state by our view.
Reversed, demurrer to bill sustained, and remanded.