2 Defendants composed the firm of Wells, Fargo & Co. They received upon the premises leased by them of plaintiff a case of nitro-glycerine which exploded and caused the injury in question. Defendants did not know the contents of the package. - Ed.
4. The Various Remedies For Waste.
a. At conunon-law.
(1). Writ of Prohibition and Attachment.
(2). Writ of Waste.1
(3). Trespass on the Case in the Nature of Waste.2
b. Under modern statutes3
c. In equity - injunction.4
5. Ownership of Timber, Minerals, etc., Removed by Tenant.
3 Wendell (N. Y.), 104. - 1829.
Trover for timber. Plaintiff demised certain premises to one J. S. Frazer, for four years, under an agreement for an ultimate sale to Frazer. During the term, J. S. Frazer sold a number of pine trees to J. F. Frazer, who paid for them, removed them and sold them to Griffin, one of the defendants herein. This action is brought to recover their value. The case comes up on a motion to set aside a nonsuit.
By the Court, Savage, Ch. J. - It has been decided by this court, in the case of Suffern v. Townsend, 9 Johns. R. 35, that an agreement to sell land does not imply a license to enter and cut trees; and also that a license to enter, would not authorize the cutting timber; for that one license does not imply the other. In that case there was a parol contract of sale and purchase, under which the defendant entered and cut timber; but the contract was not consummated, and the plaintiff recovered in trespass for the timber cut
1These writs, (1) and (2), were granted originally against tenants in dower and by the curtesy and guardians in chancery only. Defendant could be made to pay the actual damage only. The statutes of Marlbridge and Gloucester extended these remedies to all tenants for life or for years. The statute of Gloucester made the penalty for waste treble damages and forfeiture. These penalties have been retained with certain modifications in New York. See Code Civ. Pro. § 1655. The writ of prohibition and attachment has now been superseded by the equitable remedy - injunction. - Ed. 2 See cases, supra. - Ed, while the defendant was in possession. The same point was again decided in Cooper v. Stower, same vol. 331. In that case there was a written contract, much like the contract in this case, except that there was no lease of the lot; but the defendant produced a contract, signed by Stower, by which he acknowledged he had received a contract and bond for the consideration money, which were to be executed and returned to the plaintiff; and agreed that until the papers were executed, no timber should be cut on the lot; and it was shown that they were executed and returned by the next mail. The defendant contended that a license to enter was implied. The court considered the acceptance of the contract of Stower a license to enter and occupy as tenants at will, but not to commit waste; and that cutting the timber beyond what was necessary for the use and improvement of the farm, terminated the tenancy at will; and of course the defendants were trespassers. It was there considered that the withholding the deed was the plaintiff's security upon the land; but it would cease to be a security, if the defendants might lawfully strip the land of its timber, and render it of no value.
These follow as to the penalties with more or less modification the statutes of Marlbridge and Gloucester, but are usually in form actions on the case in the nature of waste See the New York statute, Code Civ. Pro. §§ 1651-1659, and see cases, supra. - Ed, 4 See cases, supra . - Ed.
The contract in this case goes farther, and gives the right of occupancy for a term of years, on performing certain conditions. It is undoubtedly true that Frazer had a right to enter and enjoy the lot which he had contracted to purchase; but, as was said in Cooper v. Stower, " the contracts in the case must be construed reasonably and consistently with the rights of both parties;" and as cutting of the pine timber where the land was not suitable for cultivation, was not the proper and reasonable mode of enjoying the lot for agricultural purposes, Frazer had no right to cut the timber. The timber constituted the principal value of the land. The land thus valuable was the plaintiff's security for the purchase money; and the destruction of the timber was, therefore, totally unauthorized by the contract. Had it appeared that the lessee could not enjoy the lot to the best advantage for the purposes of cultivation and improvement as a farm without cutting the timber in question, a different case would have been presented; and I should think the rights of the parties would be very different; then the cutting, and perhaps the selling would have been justifiable. But when trees, or anything else attached to the freehold, are unlawfully detached therefrom, the property thus wrongfully separated from the freehold, becomes the personal property of the owner of the inheritance. "Waste is a tort," says Lord Hard-wicke, 3 Atk. 262, "and punishable as such; and the party has also a remedy for the trees cut down, by an action of trover." 2 Cruise, 268. The case of Fanant v. Thompson, 5 Barn. & Ald. 826, is full to the same point. Certain machinery attached to a mill was leased for a number of years. The tenant, without permission of his landlord, severed the machinery from the mill, and in that situation it was sold on an execution against the tenant. It was held that no title passed to the purchaser, and that trover lay for the machinery. The judges, in giving their opinions, compare the machinery, when attached to the freehold, to the case of trees standing which are parcel of the inheritance, to the use of which the tenant has a qualified right during his term, to wit, for shade and fruit. If, however, they are separated by his own wrongful act, or the act of God, the tenant has no right to the use during his term, but they become absolutely vested in the person who has the next estate of inheritance; they become his goods and chattels.