Shaw, C. J., delivered the opinion of the Court. - The question in the present case, is whether a tenant in dower or her lessee has a right to cut wood upon the dower estate, for sale, to be removed and not used or consumed upon or in connection with the estate.
We think that a reference to a few principles, which have been adopted and acted upon in decided cases, in our own State, will lead to a satisfactory decision of this question.
It was in effect decided in Sargeant v. Towne, 10 Mass. R. 307, that a tenant for life has no right to cut growing trees, that such cutting would be waste, and that wild and uncultivated land cannot be deemed estate yielding annual rents or profits.
In the case of Conner v. Shepherd, 15 Mass. R. 164, it was decided, that in this commonwealth a widow is not entitled to dower in wild and uncultivated lands, held separately and distinct from houses, cultivated lands and other improved estate, first, because they yield no annual profit, and secondly, because the widow could not make the only beneficial use of them, of which they are capable, without committing waste and forfeiting the estate. These reasons apply as well to the case of a wood-lot situated in the midst of a cultivated country, as to the forest lands in their original state. But the Chief Justice,, in delivering the opinion of the Court in this case, takes care in terms to limit its operation to the case of woodlands not used or connected with a cultivated farm, or other improved estate.
In the case of Webb v. Townsend, I Pick. 21, the general rule, that a widow is not dowable of wild lands, is confirmed, and it was placed more distinctly upon the ground, that as a widow is to be endowed, not according to the value of the land, but according to the value of the annual rents and profits, and as uncultivated lands yield no rents and profits, dower therein would be nugatory and of no value.
But in a subsequent case, White v. Willis, 7 Pick. 143, it was held that a lot of wild land, which had been used by the husband in connection with his house and cultivated land, to supply wood for buildings, fences and fuel, might be properly assigned to a widow as part of her dower, to enable her to take fuel and timber for repairs. It was also suggested, that a widow would have no right to take fire-bote, etc., from lands of her deceased husband, unless the lands from which it is taken, were included in those assigned as her dower.
A distinction was urged in the argument, between woodlands, kept by the owners to raise wood for sale, for purposes of profit, and wild lands, and that it would be hard to deprive a widow of her dower in such lands, of which the raising of wood for sale may be considered as the most profitable use. But we think the answer results from the legal principles on which the foregoing cases are settled. Such estate yields no annual profit. The owner may make a profit of the land, but it is the exercise of the rights of a tenant in fee, which a tenant for life by law does not enjoy, that of felling growing trees. The result, we think, is, that a widow is not to be endowed of a lot of growing wood and timber, although kept purposely to raise wood and timber as objects of profit, provided that it is not assigned to her as part of her dower, in connection with buildings or cultivated lands. But when woodland is so connected and used, it may be included in the assignment of dower, to be used and enjoyed by the widow, or those holding under her.
But the right of the widow thus acquired is that of reasonable estovers, under which may be included firebote or the necessary fuel for the supply of the dower estate. But this right of reasonable estovers is confined strictly to wood and timber sufficient for the supply of the estate, and it must be actually applied, used and consumed upon the estate, or for purposes connected with its proper use, occupation and enjoyment. It has been recently decided, that cutting growing trees, to be exchanged for other wood to be used as fuel or timber on the estate, was not within the right of a tenant in dower, but in law was deemed waste. Paddelford v. Paddelford, 7 Pick. 152.
A fortiori, the cutting of wood for sale, the proceeds of which are not to be used or appropriated upon the estate or in connection with it, is not admissible under the limited right of taking reasonable estovers.
If the plaintiff, as lessee of the tenant in dower, had no right to cut the growing wood, the defendant, as having the next estate of inheritance, had a right to take the wood when severed. Blakes v. Anscombe, 4 Bos. and Pul. 25.
10 New York, 114. - 1854.
Denio, J. - I am of opinion that two errors were committed on the trial of this cause. First. The farm which the defendant held under a lease from the plaintiff contained about two hundred and thirty or two hundred and forty acres, seventy or eighty acres of which remained in forest and the remainder was cleared. The defendant was proved to have cut down about an acre of the timbered land; and he sold a part of the wood in market. He was permitted to prove, against an objection by the plaintiff, that he applied to the plaintiff for two or three acres of wood, saying that he had more hay to winter cattle than he had pasture to pasture them, and that he would seed down the land that he cleared; that the plaintiff said that the defendant was welcome to the wood if he would clear up and seed down the land on which it stood; and the jury were charged that if this was an agreement for the mutual benefit of the parties, and the wood was cut in pursuance of it, it was a defence to the action. The action was for waste, and the following statutory provision applies to the case: "If . . . any tenant . for term of life or years, . . . shall commit waste of the houses, . . . lands or woods, . . . without a special and lawful license in writing so to do, they shall respectively be subject to an action of waste." 2 R. S. 334, § I.2 The object of