Livingston v. Reynolds

After advisement, opinions were delivered by Mr. Justice Cowen and by the President of the Senate. The opinion of the former will be found in 2 Hill, 159; the opinion of the latter is as follows: By the President of the Senate. The bill filed in this cause sets forth a lease, alleges waste, and prays an injunction against future waste, and an account and satisfaction for that already committed. Upon the bill and accompanying affidavit an injunction was issued; an answer was put in and a motion made to dissolve the injunction. Upon the hearing of this motion, the Chancellor dissolved the injunction and dismissed the case on the ground, that “ the case did not appear to be of sufficient importance to authorize the court to interfere by preliminary injunction before the complainant had established her right at law.” From this order of the chancellor the complainant appeals to this court. The main questions presented in this case for the consideration and decision of the court are: 1. Was the defendant below guilty of such waste as is prohibited by law, and unauthorized by the contract of the parties 'l and [121] if so5 2. Was that waste such as to justify or require the Chancellor to interfere in the manner prayed in the bill 'l The case seems to me very clear upon both these points. The term waste is, in the law, a technical term. Under the adjudications of the courts it has acquired a precise and definite meaning. That the acts of the defendant, alleged in the bill, admitted in the answer, or proved in the case, constituted waste, I entertain no doubt. The question arises, whether such waste was authorized by the contract of the parties contained in the lease 1 I think a fair interpretation of the covenants of that lease will clearly show that, so far from being authorized, it was expressly prohibited. The clause of the lease applicable to this point is as follows: “ And also that he, the said party of the second part, shall not, nor will not, injure, cut down, take, destroy, or carry away, upon, or from the hereby demised farm, any more wood or timber than shall be actually used and employed thereon 5 and shall not, and will not, make or suffer to be made any manner of waste, sale, or destruction in the wood or timber as aforesaid, by any ways or means whatsoever.” Under this lease, and the common law, the tenant was entitled to all necessary materials, whether of timber, clay, or stone, for reasonable and necessary use and repairs on the premises. He was, in the ancient but well defined language of the law, entitled to reasonable and customary estovers, such as house-bote, fire-bote, fence-bote, plough-bote, fyc. but briclc-bote for sale is, I believe, unknown to the common law, as it is to all other law. But the Chancellor says that “ The restriction in this lease does not prevent the defendant from cutting wood for burning brick on the premises, any more than for using it for fuel for his house, provided it is not contrary to good husbandry, so as to be included in the general prohibition against waste.” I know not what may be the peculiar ideas of the Chancellor of good husbandry; but if they consist with the digging up of the soil, the cutting down of valuable timber, and the using of both in [122] making brick for sale off the demised premises, then his ideas as well of husbandry, as of waste, must differ materjaj]y from the generally received opinion of the world in relati0n to both. In England, where their system of agriculture, from the peculiar circumstances and necessity of the case, is more fixed and regular than ours, the conversion not only of woodland, but even of meadow and pasturage, into arable, and the reverse ; as well as that of meadow and pasturage into woodland, and the reverse, would be deemed waste. Although these strict rules of the old world may not have been adopted, in all their rigor, among the broad and fertile acres of our own young and free country, yet I believe that the Chancellor’s peculiar notions of good husbandry have never obtained currency even among the most irregular and slovenly cultivators of our soil. But it is said that clearing the land of its timber and reducing it to cultivation, was a benefit rather than an injury to the estate; and, therefore, was not waste. What may be an immediate benefit to the tenant,' may be a permanent injury to the landlord. Besides, if it were really advantageous and desirable to reduce this woodland into cultivation, its being done by the tenant without the consent of the landlord, would injure the latter in just so far as the value of the timber exceeded the expense of cutting it down and clearing the land. But injury is not, as has been said in this case, the test of waste-, but disherison of him in remainder or reversion. The tenant in this case has destroyed timber which he cannot reproduce; and has carried off the demised premises soil, which he cannot restore. This is disherison. The estate in remainder or reversion is wasted. Whether the injury, resulting from that waste, be much or little, it is in either case still waste. But the Chancellor says that the case did not appear of sufficient importance to authorize the court to interfere by a preliminary injunction. This brings us to á consideration of the second point above stated. [123] If what has been, already said on the first point be at all correct, quite enough did appear in the case to show that waste had been committed; and even admitting that the injury resulting to the complainant were even less considerable than it seems to have been viewed by the Chancellor, that would not have materially varied the case. The object of the bill was evidently to obtain an injunction against future waste, rather than an account and satisfaction for that already committed. The acts which constituted the waste done, were not only admitted by the defendant, but his right to perform such acts was asserted, and his intention of repeating them openly avowed. Now, the claim of such a right, and the threat of exercising it were of themselves, even without any overt act, sufficient to constitute a case of equitable cognizance; but when the sincerity of such claim of right, and the good will of such threat of its exercise were verified by aggravated acts of waste already committed, these were quite sufficient, not merely to justify, but to require the prompt and effective interference of equity. That interference should have been had. An account and satisfaction of the waste already committed should have been decreed, and the injunction should have been rendered absolute and perpetual. My vote in this case will be given in conformity with these views. On the question being put, Shall this decree be reversed! all the members of the court present who had heard the argument, answered in the affirmative. Whereupon the decree of the Chancellor was Reversed.