the qualification respecting the evidence of a license is the same with those provisions of the statute of frauds requiring certain transactions to be put in writing, namely, to prevent agreements from being set up by false or mistaken oral testimony. I do not think the annexing a condition to the license (for this is what the evidence at most amounted to) renders the parol proof of it any more competent than it would otherwise have been. Nothing like an agreement was shown. The defendant did not agree to clear or seed down any of the woodland, but only that he would seed down what he should clear. It was a clear case of a license proved by parol against the express provision of the statute. * * *
1 Tenant by curtesy may take reasonable estovers only. Going beyond that is waste. Armstrong v. Wilson, 60 111., 226. - Ed.
2 See Code Civ. Proc. § 1657. - Ed.
The judgment of the court below should be reversed and a new trial granted.
c. Changes in manner of using land. Good husbandry.
The Assistant Vice-Chancellor in
3 Sandford's Chancery (N. Y.), 6oi. - 1846.
My conclusion is that there is not enough proved against Samuel Sarles, to authorize a decree against him in respect of the hay and meadow grass. His most unjustifiable act, in my view, was the annual removal of the bog grass. For this, so far as it was an injury to the freehold, he is liable to account.
So in respect of the overtillage and bad management of the land. With the exception of the field back of the barn * * * I do not think the testimony clear to establish the alleged bad husbandry. * * * The injury to the fee growing out of that field, is waste, which will properly be included in the account to be taken.
Green, C. J., in
1 Rhode Island, 272. - 1850.
The defendant is charged with having converted meadow land into pasture land. In England this would be waste. But we are not to apply the English law too strictly. Our lands are in many respects cultivated differently from land in England; and this difference is to be taken into account. Here it is necessary to show that the change is detrimental to the inheritance and contrary to the ordinary course of good husbandry. If in this case the change injured the farm, or was such a change as no good farmer would make, it is waste. * * *
It is said that the pastures have been permitted to become overgrown with brush. In England that would be waste, but you would not expect so high a state of cultivation in Burrillville as in England, or as in the vicinity of a populous city. There must be such neglect in cutting the brush as a man of ordinary prudence would not permit; and if there was in this case such neglect, it is waste.
11 Metcalf (Mass.), 304. - 1846.
Wilde, J. - This is an action of waste, and the case comes before us on exceptions to the instruction 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 part 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 divest 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 consider that as a personal covenant of the plaintiff. No right of entry is reserved for the nonpayment 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 converse, 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 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. Waste, 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.