Alexander v. Fisher

GOLDTHWAITE, J. — We can perceive nothing in the proof in this cause, or in the admissions of the answer, which will warrant a different decree from that rendered by the Chancellor. It is true, that in England, it is waste for a tenant in dower to convert woodland into arable, Coke on Litt. 53, b.; but it is evident that the rules which govern and define waste in an old, well settled, cultivated country, have either no application, or at best a very remote one, to a new country, where the timber is of little or no value, and where its destruction is always the preliminary to successful cultivation. Even in England, that which is waste by a tenant in one county, is not always so in another. So, too, with us, it is very evident that in some parts of the State, a destruction of timber would be of lasting [518] injury to the inheritance, whilst in other parts, the same act ■\Fould be beneficial. A number of adjudications have been made in our sister States upon this subject, which show that the subject matter is capable of no general and fixed rule, from the great diversities which exist between the several States, both with respect to the articles produced, as well as in the manner of cultivation : to say nothing of the different and relative values of lands and timber. [Findlay v. Smith, 6 Mun. 134; Cranch v. Puryear, 1 Rand. 258.] In Hastings v. Crankleton, 3 Yeates, 261, the Court held that a tenant in dower may clear woodlands,if the land cleared bears a proper relative proportion to the whole tract. To the same effect is Parkins v. Coxe,2 Haywood, 339; and we presume many other cases involving the same principle may be found in the reports of other States. The Supreme Court of Tennessee, in Owen v. Hyde, 6 Yerg. 334, assert, that the general criterion by which to determine whether waste has been committed, is, to ascertain whether lasting damage has been done to the inheritance, or its value depreciated. That Court also recognized the right of a tenant in dower, when the land of the dower estate was old and worn, to clear new land, if the proportion of woodland was such that a prudent farmer would consider it best to reduce a portion of it to cultivation, thereby to relieve the old land from excess of cultivation. We entirely concur in this view of the law of waste, as peculiarly applicable to many parts of our own State. 2. It is proper, however, to remark, that we desire not to be understood as asserting, that a tenant in dower, has the absolute right, at pleasure, to cut down or otherwise destroy the growing wood upon the dower lands. Doubtless all such tenants are entitled to house bote, fire bote, and fence bote; in other words, to the timber necessary for fire wood, and for the repairs of the buildings and fences upon the dower lands; but beyond this, it seems that the tenant’s right does not extend, except it be within the rule before recognized, to wit: that the change from woodland into arable, is productive of no lasting injury to the inheritance. It will probably be found also, that such a tenant has no right, under any pretext, to destroy groves of timber, or trees [519] planted for shade or ornament; and with respect to the walnut trees, spoken of in the pleadings* if the allegations of the bill had been supported, and they had been of any determinate value, the heirs might have beeri entitled to compensation. But the proof leaves it doubtful whether the ancestor planted them for any definite purpose; and there is an entire absence of proof as to any value, for which Chancery will entertain a bill for compensation. We are satisfied that the Chancellor came to the proper conclusion, and his decree is affirmed with costs.