M'Cullongh v. Irvine's Executors

The opinion of the court was delivered by Coulter, J. Waste is spoil or destruction committed in houses or other corporeal heriditaments to the injury of one who has the remainder or reversion in fee. And one of the illustrations put in the old books is pulling down a house, which as it is said is a ci’ime of commission and voluntary waste. Suffering the house to fall down for want of repairs is waste also, but only permissive. In our own statute, act of 27th March, 1833, sec. 3, it is provided “that quarrying and mining and all such other acts as will do lasting injury to the premises, shall be considered as waste.” We must of course except those cases of lease by contract, for the purpose of quarrying or mining, many of which no doubt exist in the State, as out of the purview and range of the statute, as between tenant for life and the remainder man. I think it may safely asserted, that any act which does permanent injury to the freehold or inheritance is waste. The main question to be resolved in the case on hand, is therefore, whether the brick house, two stories high, and the bank barn 66 feet long by 33 feet wide and 7 feet of an overshot, with corn crib and wagon shed erected by the tenant for life during the life of his wife and child, who were the owners of the remainder in fee of two thirds, did become part of the freehold and inheritance or not. The tenant for life,‘Irvine, was the owner of the other third in fee; and after the death of his wife and child he threw down the house and barn, and ed the materials away, because the remainder man would not give the price he asked for the whole inheritance. This suit is instituted by the remainder man against the executors of Irvine, who held the life estate in two thirds of the freehold. The defendants [441] allege that notwithstanding Irvine pulled down the house and barn and its adjuncts and sold off a large quantity of timber, leaving but a small portion of woodland, that yet he is not answerable in damages, because the land at the death of Irvine, in its denuded state, was worth as much and more than it was valued at, when the life estate first accrued, and he took possession. And the court below sustained this ground, summing up their instructions to the jury in these comprehensive words; “But if the inheritance was left as valuable by the tenant for life, independent of the consideration of his own acts and conduct respecting it, as when he entered upon it, and more so, then we think the plaintiff is not entitled to recover.” I cannot assent to this view of the case. It is attempted to be sustained by those exceptions to the general rule of permanent improvements becoming part of the freehold, which in favor of trade permit fixtures or machinery to be severed from the inheritance by a tenant. Agriculture is denominated a trade, and a brick house and a barn are alleged to be the implements and instruments by which it is carried on, and which are essential to its comfortable prosecution. The hypothesis has a bold and dashing novelty about it, and is not without plausibility. Husbandry has been considered a more primitive and simple occupation than handy work or mechanism, and it is by some called a science. But call it a trade; still its success and its products depend upon the showers of heaven and the nutriment of the earth. A cider press is an instrument by which cider is made, and like a plough and a harrow or a threshing machine, is an implement of agriculture and belongs to the tenant. But a two story brick house and a large bank barn, are not instruments or implements of any trade. But they are great conveniences which enable men of all sorts to enjoy the fruits of their labor or trade. If you make these an exception the rule itself is obliterated, and nothing is essentially of the realty, except the earth itself and that which is in its bowels. The exceptions have been carried very far by some decisions in the Eastern States, particularly in Whiting vs. Barstow, 4 Pick. 310; Holmes vs. Tremper, 20 Johns. 29, and also in Van Ness vs. Packard, 2 Peters, 38. It is however, in somewhat loose expressions of the court in those cases, and not from the cases themselves, that the principle asserted by the court below derives some countenance. The first, where the dicta is the most latitudinarian, was merely the removal of a padlock and some loose boards; about which there never could have been any reasonable doubt. The second was the removal of a cider press by the tenant; and there no reasonable doubt of its being an implement for the manufacture of cider would be entertained. The last case runs to a little more magnitude, for it was removing a sort of a house. But a house erected for the purpose of manufacturing a commodity; [442] it was more properly, a shop for making oil; and the decision goes. expressly on the ground of its not being a dwelling house. But none of these cases either expressly or by implication overrule or impeach the case of Elwes vs. Maw, 8 East 28, in which it was held that an agricultural tenant could not remove during the continuance of his lease, a beast, house, carpenter shop and fuel house, &e. erected for the use of the farm, even though he left the premises as he found them. In that case the whole law on that subject was ably reviewed ; and although it is an English case, I believe it to be the law of Pennsylvania, and for the very same reason that the court below give for a contrary opinion. In my judgment that is a rule which tends to promote the interests of agriculture, whilst its converse would tend to retard and impend its progress. We must have many tenancies for life in Pennsylvania, by will, by deed, and by descent; and if the tenant after having enjoyed the fruits of the land during perhaps a long life, may, just before his death, strip it of the fences he has built, and the house and barn he has erected, because the advance in the improvement and commerce of the country would leave the land of as much intrinsic value as when he took possession, and convert it into a solitary waste for the winds to moan over; the tenant of a new generation will have to take the land as it was a generation before, and commence improvements de novo. This, I apprehend, would be a slovenly mode of promoting the interests of agriculture. There is a debt due to the land in return for its fruits and products, and a good tenant for life always pays it. Pie manures it, fences it, and builds a habitation on it, and they become part of the freehold, and thus the interest of agriculture is promoted. These exertions are the voluntary gift of the life tenant, to the inheritance. He dedicates them to the inheritance when he has enjoyed the fruits of his labor. A good farmer creates, but does not destroy; and I may add, that this rule, just in itself, has a tendéncy 'to liberalize the social affections as well as to promote agriculture. It banishes that sordid and selfish spirit which would destroy what the individual can no longer enjoy. . All fixtures and erections which the law allows a tenant for years to remove, are put up for the avowed purpose of a temporary occupancy. He pays a suitable compensation under contract, for liberty to erect them for the uses of his particular trade or calling. They are designed for his use and his alone. Not so with the tenant for life in the case on hand. He was himself owner of one-third of the inheritance, his wife and child were owners of the reversionary interest in the other two thirds. Who then can doubt his intention of making these buildings with a view of benefitting the inheritance, for himself, for his wife and. [443] child; by that intent and act he dedicated them to the freehold, and so incorporated them with the inheritance as to foreclose his power of recaí after the death of his wife and child, to the disherison of their heirs. With regard to cutting and selling timber, the law has undoubtedly undergone some change from what it was at one time in England. It is not waste in Pennsylvania to turn arable land into meadow nor vice verm; nor is it waste to clear land by a tenant for life. But there is a due and reasonable medium to be observed, according to the custom of farmers. To cut down all the timber on a tract of land and sell it, would be waste, because it would be injurious and detrimental to the inheritance. The question is not whether the land may be of equal value at the falling in of the life estate to what it was when it commenced. But it is whether the inheritance has been injured. Because a plantation, now although entirely stripped of its forest, might be of as much value as it was thirty years ago, when one half of it was covered with timber; and yet if one-third of the timber remained, it might and probably would be now worth one-third more. This would depend upon the custom of farmers, the situation of the country, and the value of timber; and would, be estimated by the jury from the evidence in the cause under the instruction that the rule is whether the inheritance has been injured- or not. With, regard to the house and barn, they having become part of the inheritance by the intent and act of the defendant’s testator, the rule of damages is the same, to wit: how much was the inheritance injured by their destruction? In regard to"both, ■ however, it must be observed that Irvine was the owner of one-third of the inheritance. To that extent the defendants are protected; I presume the claim is only for two-thirds; all that can be recovered is two-thirds of the amount of damages for waste committed by Irvine, in the destruction of the house and barn and an undue proportion of timber. Judgment reversed and venire de novo awarded.