Opinion
Fall Sessions, 1841.
J. A. Bayard and Cullen, for plaintiffs.
Ridgely and Houston, for defendant.
CASE by reversioner against tenant for years, for damage done to the estate. The action was against the assignee of a, lessee of a farm and mill-seat, for cutting wood, saw-logs, c. The lease contained a covenant by the tenant to keep up all the repairs of the mill. Plaintiff proved the cutting some saw-logs and oak and pine wood, and its delivery by defendant to market, several miles distant. The, wood was worth $2 50 per cord at market and $1 75 on the farm.
The defence was that the saw-logs were cut for the necessary repairs of the property; and in respect to the wood, that so much of it as was not used for fire-wood on the premises should be accounted for according to its value on the premises, and not at market.
A witness was asked if a part of the timber was not used to repair the house, and for fire-wood. This was objected to.
Bayard and Cullen. — Defendant is in under a lease requiring, him to keep up the repairs. What does this mean? That he should furnish the materials, otherwise he would have stipulated that the landlord should furnish the materials. The plain meaning is, that he who was bound to do the repairs must furnish the materials.
Ridgely and Houston. — This stipulation is only for repairs to the mill. We agree, however, that defendant as tenant, was bound by the general duty of a tenant to keep the farm house in order; and it is equally his priviledge to take reasonable fire-wood and timber for such necessary repairs. If he did not keep the property from going to decay, he would be liable to an action for neglecting to repair.
Court. — So far as the parties have themselves stipulated in the lease for repairs, we must look to their express contract. There is such a stipulation in regard to the mill, and the tenant in this case would be bound not only to do repairs on the mill, but to find the materials. In every renting of a farm it is necessarily implied (if nothing be said on the subject,) that the tenant shall have necessary fire-wood and timber for keeping fences up, and the buildings in tenantable repair. He could not cultivate and secure his crops, or perhaps dwell in the house without such privilege; and it is as much for the benefit of the landlord or reversioner, that he should he compelled to do these repairs and have these privileges, as for the tenant.
The case was submitted to the jury on the charge of the court, as to the rule of damages; the plaintiff contending that the value of the wood at the landing and not on the farm was the rule for assessing damages, on the principle that if a tort-feasor mixes his own labor with the trespass or injury, the thing taken shall be accounted for, without reference to the labor bestowed upon it. As in the case of Tilghman Roberts, New Castle county, which was trespass for cutting timber, and the proof was that the timber was mauled into rails; the court directed the jury to give the value of the rails. The taking being tortious the party injured might have replevied the wood at any time whilst it remained in the hands of the wrong-doer.
By the Court.
This is an action on the case in the nature of waste, for injury to the reversion, with a count in trover. The plaintiff contends that he has a right to the timber in every shape, and wherever it is found in the wrong-doer's hands, and having a right to the timber there he is entitled to its value there. The rule on the subject of damages is generally the value of the property taken, but the jury may go beyond it. (2 Wh. Selw. 1417; Saund. Pl. Ev. 887.) Interest from the conversion may be added. (4 Watts. 418.) Where the chattel is not of a fixed or determinate value, its worth at the time of the conversion is not the rule of damages, but they may be enhanced according to the increased value of the chattel subsquent to that time. ( West vs. Wentworth et al., 3 Cowen 82.) Where one takes trees and saws them into boards, trover lies; and the measure of damages is the value of the boards. ( Baker vs. Wheeler et al., 8 Wend. 505.) In the present case the damage to the reversion, if any, consists in cutting timber into saw logs and cord wood; and the value of the cord wood at the landing where it was delivered by the defendant, is greater than on the premises. The plaintiff has added to this declaration in case a count in trover under which it is the opinion of the court he is entitled to recover the value of this wood, at any time whilst it remained in defendant's hands, though that value may have been appreciated by his skill and labor.
Verdict for plaintiffs.