Leatherbury v. McInnis

Whitfield, C. J., delivered the opinion of the court. The appellants and appellee appeal*, so far as the testimony has progressed, to be tenants in common of a tract of land embracing something like one thousand and forty acres. According to the testimony thus far developed, the almost exclusive value of the land consists in the pine trees standing on it. The appellants have boxed the trees on one hundred and twenty acres, and have declared their purpose to box [164] the trees on the entire tract. The chancellor must have believed from the testimony that this waste was unusual and unreasonable in its nature, malicious, and tending to the destruction of the chief value of the property. We are not prepared to say that he is clearly wrong in this conclusion of fact, and if the facts be so, then the injunction was properly granted. Freeman on Co-tenancy & Partition, sec. 323. But there is nothing to show that the timber on one part of the tract is of any more value than that on any other part of the tract, and there is no reason why, in partition proceedings, the court could not set a]3art to the ajapellants that half of the land embracing the said one hundred and twenty acres. For these reasons, we thin]?: the injunction should have been limited so as to restrain the appellants from boxing any more than one-half, in value and quantity, of the trees. The'decree is reversed and the cause remanded, with instructions to the court below to modify and perpetuate injunction as indicated in this opinion.