As to the destruction of trees charged in the complaint herein, it has been expressly decided in California that, in the enjoyment of his legal rights in the common property, each co-tenant may cut timber, and use or dispose of it, at least to an extent corresponding to his share of the estate. ( Hihn v. Peck, 18 Cal. 640.) In the case before us there is neither averment nor finding that defendant has cut or consumed more than its share.

[3] It is clear that the contracts gave the buyer the right to cut the merchantable ponderosa pine and douglas fir on the described property, and the question of law urged by the respondents is: can a cotenant legally convey all timber rights on a particular piece of property without the concurrence of the other cotenants if there is other jointly owned contiguous property, upon which is growing sufficient timber to satisfy the fractional interests in common of those cotenants not parties to the sale? Several California cases are cited on this point: Hihn v. Peck, 18 Cal. 640; McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134 [27 P. 863, 49 Am.Rep. 686]; and Fuller v. Montafi, 55 Cal.App. 314 [ 203 P. 406]; and also Graybiel v. Burke, 124 Cal.App.2d 255 [ 268 P.2d 551]. In Hihn v. Peck, supra, 18 Cal. 640, plaintiff and defendants were tenants in common of a parcel of land containing 32,000 acres, of which plaintiff was entitled to 13/54ths.

Thus, any cotenant may cut trees that are mature and fit for cutting, Martyn v. Knowllys, 101 Eng.Rep. 1313 (K.B. 1799), and may develop and operate mining land, Job v. Potton, 20 Eq. 84 (1875), without liability for waste. In the United States, while it is clear that acts which amount to destructive permanent damage to the common property are held to constitute waste, E. Hopkins, Handbook on the Law of Real Property § 214, at 342 (1896); 2 W. Walsh, supra § 131, at 72, some cases have followed the English rule allowing the cutting and sale of timber, Hihn v. Peck, 18 Cal. 641 (1861); Buchana v. Jencks, 38 R.I. 443, 96 A. 307 (1916); Williams v. Bruton, 133 S.C. 395, 131 S.E. 18 (1925); McDodrill v. Pardee Curtin Lumber Co., 40 W. Va. 564, 21 S.E. 878 (1895), and the operation of mines, quarries, and oil wells, Prairie Oil Gas Co. v. Allen, 2 F.2d 566 (8th Cir. 1924); Cascaden v. Dunbar, 191 F. 471 (9th Cir. 1911); McCord v. Oakland Quicksilver Mining Co., 64 Cal. 134, 27 P. 863 (1883); Payne v. Callahan, 37 Cal.App.2d 503, 99 P.2d 1050 (1940), while others have held that the cutting and sale of timber, Fitzhugh v. Norwood, 153 Ark. 412, 241 S.W. 8 (1922); Emmons v. Evans, 178 Ky. 180, 198 S.W. 900 (1917), or the development or operation of mines or oil wells, Clark v. Whitfield, 218 Ala. 593, 119 So. 631 (1929); Abbey v. Wheeler, 170 N.Y. 122, 62 N.E. 1074 (1902); McNeely v. South Penn Oil Co., 58 W. Va. 438, 52 S.E. 480 (1905), constitutes waste. In cases following the latter rule, courts have tended to call the action one for waste but to hold the defendant m

Some such allegation has always been held requisite to maintain an action for an injunction. (See Jerome v. Ross, 7 Johns. Ch. 315; Frost v. Beekman, 1 Johns. Ch. 318; Hanson v. Gardiner, 7 Ves. 305; 2 Sto. Eq. Jur., Sec. 925; Burnett v. Whiteside , 13 Cal. 156; Branch Turnpike Company v. Yuba County , 13 Cal. 196; Tomlinson v. Rubio , 16 Cal. 202; Hihn v. Peck , 18 Cal. 640; Robinson v. Russell , 24 Cal. 467; Tevis v. Ellis , 25 Cal. 520.)          John C. Byers and Budd & Carr, for Appellant.

( Akley v. Bassett, 189 Cal. 625, 642 [ 209 P. 576]; Zaslow v. Kroenert, 29 Cal.2d 541, 548 [ 176 P.2d 1].) The cutting of all of the merchantable timber, when Burke had at most an undivided one-third interest, would undoubtedly constitute waste ( Hihn v. Peck, 18 Cal. 640, 643), and an injunction would lie in favor of the ousted cotenants ( Fuller v. Montafi, 55 Cal.App. 314, 320 [ 203 P. 406]). Both the special administrator and the daughters were persons aggrieved by the waste and, as such, entitled to bring an action for an injunction and treble damages.