As to the other acts complained of, we think they cannot be deemed waste, unless they may be 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.

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.

d. Opening and working mines. Woodworth, J., in

Coates V. Cheever

1 Cowen (N. Y.), 460. - 1823.

The premises in question contain a valuable ore bed, which was partially opened by the husband of the appellant, during his lifetime. Since his death, the owner has extended this opening at great expense and with very great success.. In setting off dower, the admeasurers disregarded the increased value of the land arising from the circumstance of its containing this ore bed. They estimated the value, considered merely with a view to its agricultural improvement, and assigned by metes and bounds sufficient to cover one-sixth of that estimate, carefully avoiding any interference with the ore. There is no doubt that as to mines in general, including beds of iron ore, if they are unopened at the time of the owner's death, his widow must take her dower in other land merely. The newly opening a mine is waste, and the widow, having only an estate for life, can legally do no act which injures the inheritance. All the cases agree in this. But it is equally clear, that if, during the husband's lifetime, mines are opened, dower in them is properly assignable. In this case, the admeasurement must accordingly be set aside. The admeasurers must assign to the appellant her dower in all mines which were opened during her husband's life; but she cannot profit by any extension of that opening. The admeasurers should take into consideration the value of the mine as far as it was opened during the husband's life, and then assign the dower, either by measuring off one-third in value or specifically assigning a reasonable share of the profits at short periods. The case of Stoughton v. Leigh, 1 Taunt. 402, contains the rules by which, 1 think, the admeasurers ought to be guided.


92 Michigan, 186. - 1892.

Petition to determine right of Gertrude McCabe in certain royalties.

McGrath, J. - * * * Our statute, How. Stat., §5733, gives to the widow of every deceased person the use during her natural life of one-third of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof. Other sections of the statute provide that, in case of mortgaged lands, the widow shall be entitled to the interest or income of one-third of the surplus; that the widow shall be entitled to dower in aliened lands; that when the estate consists of a mill or other tenement which cannot be divided without damage to the whole, and in all cases where the estate cannot be divided by metes and bounds, dower may be assigned of the rents, issues, and profits thereof to be had and received by the widow as a tenant in common with the other owners of the estate. These are the only prominent provisions made by the statute for the widow in case decedent shall leave issue.

The naked question raised is whether, under these statutory provisions, a widow is excluded from all interest in the minerals in lands which, at the time of the death of her husband, were unimproved and unproductive, although such lands may be rich in minerals, and were owned, held, and known as mining lands, and were chiefly and solely valuable for the minerals contained in them.

From my examination I have been unable to discover that this precise question has ever been passed upon by any court in this country. Text-writers generally, and, in some of the following cases none of which involve the question of an unopened deposit, the courts lay down the rule that a widow is dowable of mines which had been opened at the death of the husband, but that she may not open new mines, even upon the land set apart to her as dower; in other words, that a widow is not dowable of mineral deposits where there is no opened mine. Washb. Real Prop. 166; 4 Kent, Com. 41; 1 Bish. Mar. Worn. § 264; 1 Scrib. Dower (2d ed.) 200-206; Freer v. Stotenbur, 36 Barb. 641; Hendrix v. McBeth, 61 Ind. 473; Lenfers v. Henke, 73 111. 405; Gaines v. Mining Co., 33 N. J. Eq. 603; Coates v. Cheever, 1 Cow. 460; Reed v. Reed, 16 N J. Eq. 248; Moore v. Rollins, 45 Me. 493; Billings v. Taylor, 10 Pick. 460; Neel v. Neel, 19 Penn. St. 323; Irwin v. Covode, 24 Id. 162; Savers v. Hoskinson, 110 Id. 473 (1 Atl. Rep. 308); Findlay v. Smith, 6 Munf. 134; Crouch v. Puryear, 1 Rand. (Va.) 258; Clift v. Clift, 87 Tenn. 17 (9 S. W. Rep. 198).

Savers v. Hoskinson holds that it is the right of a life tenant to work an opened mine to exhaustion. Moore v. Rollins is to the same effect. * * *