Dorsey v. . Moore

Merrimon, J., (after stating the facts). As to forest lands ■and timber trees thereon, generally, the life-tenant may, if need be, clear tillable land, to be cultivated for the necessary support of himself and his family, and this he may do although the ordinary forest timber be destroyed in the ■course of clearing the land. He may also cut and use timber appropriate for necessary fuel, for repairing fences, for making such as are necessary — for repairing houses and building such as are reasonably needed on the land or plantation. But it is waste to cut timber from the land merely for sale — to sell the timber trees and allow them to be cut down and manufactured into lumber for market — because this would impair the substance of the inheritance — it would take from the land that which is not incident to the life estate and the just enjoyment of it consistently with the estate and rights of the remaindermen or reversioners. The law intends that the life-tenant shall enjoy his estate in such reasonable way, as that the land shall pass to the reversioner, as nearly as practicable, unimpaired as to its natural capacities and the impovements upon it. Ballentine v. Poyner, 2 Hay., 268 (110); Churchill v. Speight’s Executors, Ibid., 515 (338); Ward v. Sheppard, Ibid., 461 (283); Shine v. Wilcox, 1 D. & B. Eq., 631; Davis v. Gilliam, 5 Ired. Eq., 308; Potter v. Mardre, 74 N. C., 36. Accepting the facts as alleged in the complaint, and admitted in the answer to be true, the life-tenant, in this case, clearly ■committed waste. She sold from the land, for the purpose •of gain, large numbers of “cross-ties,” and much timber— *45 to one of the defendants, who erected a saw-mill on the land and sawed the timber into lumber for market. All this, the life-tenant had no right to do. Plainly, she committed waste. She, it appears, died pending the action, and thus passed out of it, and it has not been revived against her personal representative — indeed, the action as to her is abandoned. The appellees admit that they cut down and took the timber from the land, substantial^, as alleged in the complaint, but they seek to justify these “acts complained of under a contract with the life-tenant * * * and declare-they have satisfied her.” But they cannot thus excuse or justify their acts as to tire plaintiffs. The life-tenant could not, by contract or otherwise, authorize them to cut down and remove the timber for any purpose; she had neither right nor authority to do so, and the fact that they “satisfied her,” cannot alter the case. She could not authorize them to do what she could not lawfully do herself. They cut down the timber in their own wrong, and thus a cause of action arose in favor of the plaintiffs against them. Their acts were an injury to the inheritance — indeed, trees, as soon as they were cut down, became the personal property of the plaintiff, and they could have maintained an action to recover the same. They might have sued for and recovered the value of the timber severed from the land; or they may maintain their action for the injury to the inheritance, and this seems to be the scope and purpose of the present action, which, under the system of civil procedure that lately prevailed in this State, would be designated as an action on the case, in the nature of waste. Williams v. Lanier, Busb., 30; Dozier v. Gregory, 1 Jones, 100; Bennett v. Thompson, 6 Id., 210; Burnett v. Thompson, 7 Id., 486; Potter v. Mardre, supra; Elliott v. Smith, 2 New Hampshire Rep., 430; Close v. Hazelton, Id., 175; 6 Wait’s Ac. & Def., 253. The judgment, it seems, is founded upon the supposition, that the contract between the life-tenant in possession and *46 the appellees, purporting to give them the right to cut and remove the timber, had the legal effect to exempt them from liabilitj’- to the plaintiffs on such account. This was a misapprehension of the law applicable. Upon the pleadings, the Court should have given judgment for the plaintiffs, directing an'inquiry as to the damages. There is error. The judgment must be reversed, and further proceedings had in the action according to law. To that end, let this opinion be certified to the Superior Court. It is so ordered. Error. Reversed.