Pynchon v. Stearns

Wilde, J. This is an action of waste, and the case comes before us on exceptions to the instructions to the jury at the trial. The premises described in the writ were formerly the property of Edward Pynchon, and were devised by him to Susan Pynchon, his wife, so long as she should remain his widow, remainder to the plaintiff. The defendant holds under an assignment from the said Susan. It was proved at the trial, that the plaintiff had taken of the defendant a lease of part of the premises during the life of the said Susan; and it was ruled by the court that, as to that pan of the premises, the action could not be maintained. That this ruling was correct, cannot, we think, admit of a doubt. By this lease to the plaintiff, he became the owner of the whole estate. The estate for years immediately merged in the remainder in fee; and the plaintiff entered, as it is understood, before the 'alleged waste. If, however, the lease had been given after the waste, no action of waste could be maintained after the merger of the estate, and after the entry of the plaintiff under the lease from the defendant. If it be said that the reservation in the lease to the plaintiff prevented the merger, the answer is, that the reservation did not, and could not, by the well established rules of construction, limit or devest the estate expressly demised to the plaintiff. The defendant only reserved the right to erect buildings on the. premises ; but no estate for life or for a term of years is reserved ; and if it had been reserved, it would have been repugnant to the terms of the lease limiting and demising the estate for life to the plaintiff. As to the stipulation for the payment of rent, we considei [310] that as a personal covenant of the plaintiff. No right of entry is reserved for the non-payment of rent; and that covenant can no more prevent a merger than it can prevent the vesting of the estate demised. As to the alleged acts of waste on the other part of the premises, the plaintiff relied upon sundry facts which are not disputed; namely, that the defendant had opened a way through the premises from one public highway to another ; and that the defendant had subverted the soil, by digging out part of the soil for cellars of houses by him erected; and that he had ploughed the lands, dug drains, and had drawn in large quantities of earth, thereby raising the land and changing the surface thereof. The defendant introduced evidence to show that these acts of the defendant were beneficial and not prejudicial to the plaintiff, and did not constitute waste. On this evidence the jury were instructed that the opening of the way was not waste; and that if breaking up meadow land occasionally was a judicious and suitable mode of husbandry, the changing the surface by breaking up and cultivating it, was not waste; and that the removing the soil for the building of houses, and the erecting them, and digging drains, if the estate on the whole would be equally or more valuable to the owner of the inheritance, would not be waste. The general rule of law in respect to waste is, that the act must be prejudicial to the inheritance. It is defined by Blackstone, (3 Bl. Com. 223,) to be “ a spoil and destruction of the estate, either in houses, woods, or lands.” It is true, however, that it has been held in England, that to change the nature of the property by the tenant, although the alteration may be for the greater profit of the. lessor, was waste. So in England, if the tenant converts arable land into wood, or e converso, or meadow into plough or pasture land, it is waste. Bac. Ab. Waste, C. 1. The reasons given are, that it changes the course of husbandry, and the evidence of the estate: But these reasons are not applicable in this Commonwealth, and consequently such changes here do not constitute [311] waste, unless such changes are prejudicial to the inheritance So the doctrine is laid down by Mr. Dane, and it is, we think, supported on satisfactory reasons. 3 Dane Ab. 219. When our ancestors emigrated to this country, they brought with them, and were afterwards governed by, the common law of England; excepting, however, such parts as were inapplicable to their new condition. 2 Mass. 534. 8 Pick. 316. That the principle of the common law under consideration was then inapplicable to the condition of the country is obvious, nor has it been applicable at any time since; for it has been the constant usage of our farmers to break up their grass lands for the purpose of raising crops by tillage, and laying them down again to grass, and otherwise to change the use and cultivation of their lands, as occasions have required. A conformity, therefore, to this usage, cannot be deemed waste. Even in England, “ if a meadow be sometimes arable, and sometimes meadow, and sometimes pasture, the ploughing of it is not waste.” Bac. Ab. Waste, C. 1. Com. Dig. Wast, D. 4. As to the effect of such changes upon the evidence of title to lands, it is evident that it can have none in this State. Our conveyances are very simple. The land conveyed is described by metes and bounds, or by some general and certain description of its limits, without any designation of the kind of land conveyed, whether it be arable land or grass land, wood land or cleared land, pasture or meadow. As to the other acts complained of, we think they cannot be deemed waste, unless they maybe prejudicial to the plaintiff; and that the instructions to the jury, in this respect, were therefore correct. To erect a new house on the land where there was not any before, is not waste. Bac. Ab. Waste, C. 5. So there seems no authority for holding that the opening of a way by the defendant, for his convenience, and draining the land, are acts of waste. And as to raising the land, by carrying thereon quantities of earth, whatever may be law of England, it is not in this Commonwealth waste, unless it may be prejudicial to the plaintiff. [312] The ancient doctrine of waste, if universally adopted in this country, would greatly impede the progress of improvement, without any compensating benefit. To be beneficial, therefore, the rules of law must be accommodated to the situation of the country, and the course of affairs here; as it has been frequently decided. Winship v. Pitts, 3 Paige, 259, and other cases cited by the defendant’s counsel. In this.country, it is difficult to imagine any exception to the general rule of law, that no act of a tenant will amount to waste, unless it is or may be prejudicial to the inheritance, or to those entitled to the reversion or remainder. For these reasons, we are of opinion that the instructions to the jury were correct. Judgment on the verdict.