In Gaines v. Mining Co., supra, the court say:
"In a country like this, where there are such vast bodies of unimproved lands, which would otherwise lie dormant in the hands of the life tenant, public policy requires that the doctrine of waste should be liberalized, and the decisions have uniformly been in that direction. The present case illustrates the hardship of a close rule in favor of the fee. The life estate vested in 1860, and there is an expectancy of twenty years more of this life. A construction of the law which locks up the land from all beneficial use for so long a period, and gives the life owner only the privilege of paying the land tax, should not be favored. When the property is unimproved land, not adaptable to any other beneficial use than that of mining, the right of the lift tenant to use it reasonably for such purpose has some support in the adjudications in this country, and is certainly not without reason to uphold it
In Hickman v. Irvine, 3 Dana, 121, the court say:
"We cannot concede that a widow is entitled to dower in the improved land only of her deceased husband. She is, by the general provision of the common and statute law, to be endowed of one equal third part of all the lands of which he was seized during the coverture; and, to whatever extent the doctrine of forfeiture for waste may apply to the case of a doweress who reduces forest lands to a state of cultivation, we cannot view this doctrine, and the possibility that its application may render a portion of the dower lands useless to the widow, as a limitation either upon the quantity or quality of the land to be assigned as a dower. When a case shall occur in which the lands assigned for dower cannot be made available for the reasonable support of the widow without converting a portion of the woodland to the purposes of cultivation, and in which, upon an attempt being made thus to render it available, the reversioner shall insist upon a forfeiture, it must be decided upon consideration of the object of the law in establishing the right of dower, upon a comparison of its regard for the present comfortable sustenance of the widow with its care for the preservation of the inheritance, and upon a view of the actual condition of the estate and of the surrounding country with regard to improvement and population, whether the change of timbered into arable land is in the particular case such an act of waste as would be just cause of forfeiture.'
The strict rules of the common law of England respecting waste and the rights of tenants for life do not obtain here. With us the change in the mode of use is not waste. It is not use, but abuse, that is waste. Waste must be consumption, nor is consumption always waste. The owner of a life-estate has some rights in common with the owner of the fee. There is no substantial reason why, so far as the use of premises is concerned, there should not be a community of right between the owner of the life estate and the owner of the reversion.
Our statute respecting "dower" defines it as the use for life of one-third of all the lands of which the husband was seized during the marriage relation. " Dower " is defined by the English authorities as the provision which the law makes for a widow out of the lands or tenements of her husband for her support and the nurture of her children. Co. Litt. 30b; 2 Bl. Comm. 130. The rules applicable to a country where landed estates are large and diversified, where the laws of inheritance are exclusive, where the theory of dower is subsistence merely, and where there is a strong disposition to free estates from even that charge, do not obtain in a commonwealth like ours, where estates are small, and the policy of our laws is to distribute them with each generation, where dower is one of the positive institutions of the State, founded in policy, and the provision for the widow is a part of the law of distribution, and the aim of the statute is not subsistence alone, but provision commensurate with the estate.
In the present case the grant is by operation of the statute giving the use of all the lands of which the husband was seized. The grant must be held to include the use of these lands, irrespective of whether mines were opened upon them before or after the husband's death. The question here is not the impairment of one mode of enjoyment or source of profit to reach another. There is but one mode of enjoyment of the land in question; but one source of revenue or profit. The land is susceptible of but one use.
The widow is therefore entitled to one-third of the amount in the hands of the petitioner, and the decree of the court below is affirmed.
3. Against Whom Waste Lies and in Whose Favor.1
13 Johnson (N. Y.), 260. - 1816.
Action of waste. The declaration stated, that Elizabeth Graham was seized in her demesne, as of fee, in certain premises, in the town of Fishkill, which are described by metes and bounds, and contained twenty-five acres; and being so seized, she married Duncan Graham, and, during the coverture, they had a son born, John Graham, by which marriage, and birth of son, Duncan Graham became entitled to the premises as tenant by the curtesy, the reversion being in the said Elizabeth and her heirs; that Elizabeth Graham died, whereby her son, John Graham, became entitled to the reversion of the premises, as heir to his mother; that John Graham died without issue, and without leaving any brother or sister, or any legal representative of such brother or sister, and that the plaintiff became entitled to the reversion as heir-at-law of John Graham, he, the plaintiff, being the oldest son of John Bates, deceased, who was the oldest brother of Elizabeth Graham, and the oldest uncle of John Graham; that Duncan Graham, during the continuance of his estate as tenant by the curtesy, in the year 1809, assigned his estate in the premises to the defendant, who, being in the possession thereof, did wrongfully and unjustly make waste, sale, and destruction, in the whole of said premises, by destroying and changing the nature of the land, etc., by felling timber, etc., and felling divers trees, etc., to the disinhersion of the plaintiff, and against the form of the statute in such case provided.