Eysaman v. Small

Hardin, P. J. Appellant does not claim what is known in law as “voluntary waste,” but. on the contrary, does claim what is commonly denominated “permissive waste.” Mr. Washburn, in his work on Real Property, (volume 1, p. 126,) says: “To suffer it [house] to go to decay for want of necessary repair is permissive;” and he adds: “But whatever the act or omission is, in order to its constituting waste, it must either diminish the value of the estate, or increase the burdens upon it, or impair the evidence of title of him who has the inheritance. ‘Waste,’ in "short, may be defined to be whatever does a lasting damage to the freehold or inheritance, and tends to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance.” And he further adds: “It often becomes a question for a jury to determine whether a certain act be or be not waste, without referring to a criterion drawn from any other country. The rule as to what constitutes waste is uniform. Its application depends upon the condition and usages of the place where it is to be made.” And the same author, at page 134, (2d Ed.) says: “Though a tenant is clearly liable if he permits a house or fences on the premises to go to decay, when by the exercise of reasonable diligence he might prevent it, it is not easy to lay down rules a priori to define when and how far a tenant shall act in all cases. Decay is often so gradual that it is difficult to determine when a tenant is bound to repair, or how far he shall go in making repairs in any given case.” In Jackson v. Tibbits, 3 Wend. 341, Marcy, J., said: “The very term * waste ’ implies the idea of detriment to the landlord or reversioner. * * * Without damage, it would seem there could be no waste; indeed, Blaekstone defines 1 waste ’ to be whatever does a lasting damage to the freehold or inheritance. 2Bl. Comm. 281.” In Jackson v. Brownson, 7 Johns. 232, Van Ness, J., says: “It is a general principle that the law considers everything to be waste which does a permanent injury to the inheritance;” and in that case it was held that what acts would constitute waste is usually a question of fact for a jury to decide. In the appeal-book before us we find a great conflict in the evidence upon the important questions of fact involved in the findings and refusals to find. [290] In the points of the learned counsel for the appellant we find clear, caustic, and resolute criticisms of the testimony given in behalf of the defendant, and clear and persuasive comments upon the testimony given in behalf of the plaintiff, and perhaps, if the question was res nova, we might reach the conclusion evolved and earnestly asserted by the leárned counsel for the appellant. However, after a perusal of the evidence, and giving to the findings made by the trial judge such influence as we think they should receive from our hands, inasmuch as he saw and heard the witnesses, and could thus well judge of the weight and credence to be given to the testimony unusually conflicting, we are constrained to regard it as our duty to adopt the findings made by the trial judge upon the vital questions of fact; nor are we prepared to say that he improperly refused to find in pursuance to the requests made by the plaintiff. The requests thus refused embraced, as matters of fact, subjects upon which the testimony was conflicting. 2. We have looked at the rulings made upon the trial, and we find no such error as we think calls for a reversal of the judgment. Plaintiff put a question to one of the witnesses calling for the valuation of the dwelling-house. Thereafter the counsel for the plaintiff stated that the “idea of the testimony was to get the relative amount of repairs taken in connection with the entire value of the property.” Thereupon the court remarked: “That has nothing to do with the question at all.” Thereupon an exception was taken, and subsequently the question was propounded to the witness, viz.: “What, in your opinion, would that building be worth now, if it were put in proper repair?” This question was objected to as incompetent, and not the proper measure of damages, and the objections were sustained, and the plaintiff’s counsel took an exception. In considering these rulings, it must be borne in mind that the case presents a very full and accurate description of the property,—of its condition as found by several witnesses on the part of the plaintiff, as well as its condition ás found by several witnesses on the part of the defendant; and photographs of the buildings were also produced in evidence; and it is not apparent that the questions which were ruled upon by the court would have, if answered, influenced the result. In substance, the evidence sought for appears in the appeal-book. See section 1003, Code Civil Proe. Nor do we think that the circumstance that the witnesses were permitted to say that a barn was built on the farm 10 or 15 years before was prejudicial to the plaintiff or influenced the findings made by the trial judge. Nor do we think it was error to receive evidence that the premises yielded no money income to the defendant, and that the advantages which she derived from the occupation were such as ensued from the use of the house and receiving the produce of the land, under the circumstances disclosed by the evidence. The vital question, upon the whole evidence, seems to have been whether the property was suffering lasting injury or permanent injury by the ■omission of the defendant to make expenditures thereon. Upon all the evidence, the trial judge seems to have reached the conclusion that the case was not brought within the principles of law to which we have already adverted. 3. It is suggested in behalf of the appellant that “the trial judge misapprehended the scope of the complaint in holding that only equitable relief was sought. The court, after a jury was impaneled and the case was partly tried, ■discharged the jury. ” At the commencement of the case and exceptions we find it stated, viz.: “Case opened to the jury in behalf of the plaintiff;” also that one of the jurors called upon the panel,” etc. At folio 800 it appears infer■entially that the jury had been discharged. The defendant’s counsel seems to to have, at that stage of the case, stated an objection and exception, and he further observed: “I would like to have it appear that it was duly objected to, and a request made to go to the j ury generally, and an exception generally;” and after some further remarks by the defendant’s counsel it appears the court observed: “The case never should have been placed upon the jury calendar;” [291] .and thereupon the defendant took an exception, but, as the defendant has not appealed, his exception is unavailing. We have looked in vain through the appeal-book to find any exception taken by the plaintiff to the action of the •court in discharging the jury and continuing the trial without a jury. We therefore are unable to discover any exception upon which the plaintiff can ¡successfully allege error in the court in discharging the jury, and continuing the trial without a jury, under the supposition that the case was one in equity. It is provided in section 1651 of the Code of Civil Procedure that “an action for waste lies against a tenant by the curtesy, in dower, for life, or for years, -or the assignee of such a tenant, who, during his estate or term, commits waste upon the real property held by him.” And in section 968 of the Code it is provided that, in an action for waste, “an issue of fact must be tried by a jury, unless a jury trial is waived.” Kennagh v. McColgan, 6 N. Y. Supp. 244. Apparently the plaintiff acquiesced in the action of the circuit in discharging the jury, and, as we find no exception to the ruling in that respect, we must assume that such acquiescence is equivalent to a waiver by the plaintiff of his right to have the issue of fact tried by a jury. We think the decision of the circuit should staud. Judgment affirmed, with costs. All concur.