Opinion
(December Term, 1848.)
1. A husband is dispunishable for waste, because, while in the possession, he is not tenant for life in his own right, but is seized with his wife in fee in her right. But the assignee of the estate of the husband is liable for waste, because his seizin and possession are several, and he is strictly a tenant for the life of the husband.
2. Though a tenant for life of land entirely wild may clear as much of it for cultivation as a prudent owner of the fee would, and sell the timber that grew on that part of the land, yet it is waste in such a tenant to cut down valuable trees, not for the purpose of improving the land, but for the purpose of sale.
APPEAL from an interlocutory decree of the Court of Equity of MARTIN, at Fall Term, 1848, perpetuating an injunction theretofore granted in the cause. Caldwell, J.
Biggs for plaintiff.
B. F. Moore for defendants.
The bill is to restrain waste; and upon the bill and answer the case is this: Maer and wife were seized in possession of land in fee in her right, and had issue; and a judgment was held against Maer and on a fieri facias the land was purchased by the defendant in 1833. In 1838, Maer and wife assigned the reversion to the plaintiff; and in April, 1848, Maer and wife being still living, this bill was filed for an account of the proceeds of timber, shingles, and staves made of the oak and express timber that had been felled on the land and sold, and for an injunction against cutting any more for sale. The land consists of two tracts. One of them contains 100 acres, of which the defendant had about 40 in cultivation. The residue thereof is what is called swamp, on the Roanoke, which lies so low that, for the greater part of the year, it is covered by water, and in its natural state is unfit for agricultural cultivation, if the timber on it were all felled. The other tract contains 250 acres, of which 150 consist of highland, and 100 (309) acres of swamp like the other. On the highland there was once a field of 40 acres in cultivation, but it was exhausted and turned out some years before the defendant purchased, and is still in that state. The residue of the highland is broken and of but little value for cultivation; but it has on it oak and other timber fit for staves and boards. The swamp on each tract is heavily timbered with cypress and other growths; and in 1846 the defendant sold cypress timber from the first tract to the value of $100, and in 1847 and in 1848 he felled cypress in the swamp of the other tract, of which he made shingles, and red oaks on the highland of that tract, of which he made staves to the value of about $900 — of which he had sold a part and was about to sell the other part when the bill was filed. The timber thus felled is not of one-twentieth part of the value of all the timber on the several tracts, and there is a great abundance left for fencing, firewood and the like. But the defendant insists on the right to continue the cutting of the timber on the swamp land, and also to some extent more on the highland.
On the hearing, the injunction was perpetuated and an account ordered; but the defendant was allowed to appeal.
The husband was dispunishable for waste, because, while in possession, he was not tenant for life in his own right, but was seized with his wife in fee in her right. Besides, the wife, in whom the inheritance was, could not sue him. But it is otherwise with the defendant; for, although he purchased the husband's estate, his seizin and possession are several, and he is strictly a tenant for the life of the husband.
The case is similar to that mentioned by Lord Coke of tenant (310) in tail after possibility of issue extinct, who was not liable for waste in respect that he once had the inheritance in him. But the privilege was personal, and his feoffee was but tenant for life, and as such liable for waste.
The question, then, is whether the acts done and contemplated by the defendant amount to waste. We think they do, and the plaintiff had the right to the decree, both as to the injunction and the account. Of course, the question is to be treated as embracing the case of dower as well as curtesy. It is certainly proper, in cases of this kind, to have a view to the spirit and reason of the common law; and therefore many things that constitute waste in England and may hereafter do so here, because prejudicial to the inheritance, ought not to be so held here at present, because they do not prejudice, but rather improve, the inheritance. Hence, turning woodland into arable, though the timber felled be sold, is not absolutely waste in our law; for cutting the timber on land fit for cultivation, or that may be made so, and reducing it to that state may, in the condition of our county, be a benefit, rather than an injury, to the reversioner. If this swamp be of the fertile quality that much of the Roanoke alluvial bottoms are, it might add greatly to the value of the inheritance to take off the whole of the timber, if the tenant would go on by embankments and ditches to prepare the land for crops. The rules, therefore, of the common law, determining what is or is not waste, are not entirely applicable to the condition of things here. But the principle on which those rules were formed applies here, as, indeed, it does everywhere; for it is founded in the nature of justice itself. It is that a tenant for a limited period or a particular estate cannot rightfully so treat the estate as to destroy the value of the reversion or materially reduce it below what it would be, regard being had (311) merely to the postponement of the enjoyment: The tenant may use the estate, but not so as to take from it its intrinsic worth. We have, indeed, said, in this State, that a widow may do a little more than that, by allowing her, for example, to make turpentine, as her husband had made it, on the land assigned for dower. That privilege may be supposed to have been estimated in assigning the dower, which is according to value. We have also held that a widow may clear land reasonably, as a prudent person would, for the purpose of supplying the place of fields previously cleared and exhausted by cultivation, leaving timber for building, fencing, fuel, and the like; and some regard, moreover, is to be had to a widow's making a comfortable livelihood. But she cannot be allowed to begin the making of turpentine, though the land on which the pines grow be fit for nothing else, or, rather, would not in her time pay for the expenses of clearing and manuring for farinaceous crops. That is upon the principle on which the common law restrained a tenant for life from opening a mine. It is not a thing yielding a regular profit in the way of production from year to year from labor, but it would be taking away the land itself, and there is no knowing how to apportion the share of the minerals which the tenant might extract. Upon the same principle the tenant ought not to cut down timber for sale merely. We should hold, as the state of the country now is, that a tenant for life of land entirely wild might clear as much of it for cultivation as a prudent owner of the fee would, and might sell the timber that grew on that part of the land. Clearing for cultivation has, according to the decisions, peculiar claims for protection; and a sale of the timber from the field cleared may be justly made, in compensation for clearing and bringing it into cultivation. But it seems altogether unjust that a particular tenant should take off the timber without any adequate compensation to the estate for (312) the loss of it; for he takes, in that case, not the product of the estate arising in his own time, but he takes that which nature has been elaborating through ages, being a part of the inheritance itself, and that, too, which imparts to it its chief value. As in the case of the mine, how is it possible to apportion the timber between the tenant for life and the remainderman, since it is altogether uncertain what the duration of the life will be? If a tenant for life can claim a share of the trees for sale as a part of the profits, then the whole might be taken from the owner of the inheritance when there happens to be a succession of life estates limited. It is said, however, that unless he be allowed to take some of the timber, his estate will be of no value when the land is swamp, not fit for cultivation, or that cannot be made so without great expense in drains and dikes. That, we suppose, could not alter the principle. But this case does not call for a decisive answer to that suggestion; for, in the first place, the greater part of the sales have been of shingles and staves made of timber felled on the highland on one of the tracts; and, in the next place, one-half of one of the tracts and three-fifths of the other are arable, and, consequently, the timber on the swamp might by a prudent proprietor be preserved as a provision that would enable him to reduce to actual cultivation the whole of those portions of the land which are arable. Certainly a tenant for life cannot insist on being allowed to make the greatest possible profit out of the land that can be made in his time. Indeed, he ought not, for the sake merely of enhancing his profits and without any view to the cultivation of any parts of the land, to cut the timber in which the chief value of the fee consists, and thus leave the exhausted or barren parts of the land, which are arable or might be made so, to the reversioner, with only timber enough on the several tracts to fence those worthless parts. That would really be to give to the particular estate the (313) kernel, and the shell to the fee.
PER CURIAM. Affirmed with costs.
Cited: King v. Miller, 99 N.C. 596; Dorsey v. Moore, 100 N.C. 44; Jones v. Britton, 102 N.C. 187; Sherrill v. Connor, 107 N.C. 633.