Warren County v. Gans

80 Miss. 76

• Court: Mississippi Supreme Court
• Decided: March 15, 1902
• Status: Published

Opinion

Terral, J.,

delivered the opinion of the court.

This is an action of replevin by Warren county to recover of the appellees 200 poplar logs, of the value of $4 each, and of the aggregate value of $800. This timber was cut from section 16 of township 15, range 3 E., of said county, leased (under legislative authority) in January, 1834, for ninety-nine years. The lessees or their assignees sold the timber while standing to appellees, the defendants below, who cut and felled the same. The two places (the Williams and Barstow places) from which the timber in controversy was cut were used as farms; and while, upon the evidence in the record, it appears probable that a portion of the timber sold to appellees, and cut by them, was sold by the tenants because they were about to clear the land for cultivation, or because the trees impeded the cultivation of the fields already cleared and in cultivation, yet it is manifest that a portion of the trees were cut, not to remove them for immediate cultivation of the soil, but for the mere profit of the particular tenants. And such being the case, the peremptory instruction was error.

By the common law of England, “waste” is defined with great accuracy, and ancient statutes there have made tenants for years liable for waste. The doctrine has been adopted in this country so far as it is suitable to our condition and circumstances as a new and growing country, and, in a more or less modified form, is administered in most, if not all, of the states of the American Union. The rigid rule of the common law that a tenant of a particular estate could not cut timber, except for estovers only, is in many jurisdictions modified so as to allow him to cut off the timber for clearing so much of the estate as the needs of his family may require for their support, though the timber be destroyed thereby. And he may clear for cultivation such portions of it as a prudent owner in fee would clear, for that purpose, provided he leaves enough timber and wood as may be necessary for the permanent use and enjoyment of the inheritance. His right to open and clear for cultivation wild and uncultivated land is that of a prudent owner, having regard to its amelioration as an inheritance. When the particular tenant cuts timber in the process of clearing the land for immediate cultivation, he can appropriate it or its proceeds to his own benefit, but he cannot cut the timber for sale without making himself amenable for waste. When the timber is cut by the tenant or others unnecessarily or unlawfully, the right of the reversioner or remainderman at once attaches, and he may bring an action on the case in the nature of waste for his damages, or he may bring trover or replevin for the timber severed from the inheritance. Whether the tenant cut timber unnecessarily upon a claim of so doing for reasonable estovers or for the cultivation of the land, and whether sufficient wood and. timber were left for tbe permanent use of tbe inheritance, are questions for tbe decision of tbe jury. 4 Kent Oomm,, p. 76 et seq., and notes; Jackson v. Brownson, 7 Johns., 232 (5 Am. Dec., 258); Mooers v. Wait, 3 Wend., 104 (20 Am. Dec., 667). These views of waste we regard as just and reasonable.

The judgment below is reversed, and the case is remanded.