This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
A particular tenant, such as a tenant for life or years. has, in the absence of a stipulation or license allowing him so to do,40 no right to take clay, gravel, soil, and the like, unless such material was one of the recognized profits of the land before the commencement of his tenancy,41 nor can he open new quarries, mines, or oil or gas wells, unless he is expressly given such right42 Quarries, mines, or wells, however, which were opened before the commencement of the tenancy in question, may be worked by the tenant, it being considered that the previous owner, by such opening, made the minerals torn to fell seasonable wood at intervals as part of the regular profits.50 Trees not timber the tenant for life may cut, generally speaking, provided such cutting docs not injure the inheritance. The tenant may accordingly cut underwood, provided he does not destroy the stubs from which it grows, such wood being for this purpose like an ordinary crop on the land51 and a tenant may cut "dotards," or dead trees.52 Trees of the nature of timber trees, but which are as yet too young to be timber, can be cut only for the purpose of thinning the growth for the benefit of other trees.53 Fruit trees cannot be cut,54 nor trees other than timber, if beneficial to the inheritance, such as willows protecting the banks of streams, and ornamental trees.55 In this country, what constitutes waste as regards timber is determined generally by considerations both of the purpose of the cutting and its effect upon the value of the inheritance. In view of the quantity of land which is here available for use only by a clearing away the timber thereon, it is usually held that a tenant is not guilty of waste if he cuts timber to a reasonable extent in order that he may cultivate the soil,56 and the fact that he sells the timber so cut is immaterial.57 But cutting is waste if it decreases rather
37. In Chapel v. Hull, 60 Mich. 167. 26 N. W. 874, it was held that the plowing up of all the meadow land on the farm leased was waste and would be restrained. The court speaks of this as involving an unhusbandlike use of the farm.
39. West Ham Central Charity Board v. East London Waterworks Co.  1 Ch. 624.
40. Post, Sec. 285.
41. Co. Litt. 53 b; Whitham v. Kershaw, 16 Q. B. Div. 613; Doe d .Wood v. Mooris, 2 Taunt. 52;
United States v. Bostwick, 94 U. S. 53, 24 L. Ed. 65; Smith v. City of Rome, 19 Ga. 89, 63 Am. Dec. 298; Potomac Dredging Co. of Baltimore City v. Smoot, 108 Md. 54, 69 Atl. 507; Reed's Ex'rs v. Reed. 16 N. J. Eq. (1 C. E. Green. 248; Coates v. Cheever, 1 Cow. (N. Y.) 160; University v. Tucker, 31 W. Va. 621, 8 S. E. 410. Compare Gulf C. & S. F. R. Co. v. Sette-gast, 79 Tex. 256, 15 S. W. 228. The tenant may, however, take clay or gravel for the repair of the house on the same principle on which he may take wood for that purpose, under the law of estoveis. Co. Litt. 53 b.
42. Co. Litt. 53 b; Astry v. Ballard, 2 Mod. 193; Saunders' Case, 5 Coke, 12 a; Stoughton v. Leigh, a part of the regular profits of the land.43 And an open mine, it is held, may be worked even to exhaustion.44 The mine or quarry cannot be worked by the tenant for general purposes, as for sale, if, previous to his tenancy, it was worked merely for some other and restricted purpose, as for the repair of particular buildings.45
If the work in a mine was discontinued before the beginning of the tenancy, and the discontinuance was such as apparently to show an intention on the part of the previous owner to devote the land to other uses, the tenant cannot work it, though he may do so if the
1 Taunt. 410; Ohio Oil Co. v. Daughet'ee, 240 111., 36 L. R. A. (N. S.) 1099, 88 N. E. 818; Daniels v. Charles, 172 Ky. 238, 189 S. W. 192; Owings v. Emery, 6 Gill (Md.) 260; Harlow v. Lake Superior Iron Co., 36 Mich. 105; Marshall v. Mellon, 179 Pa. 371, 35 L. R. A. 816, 57 Am. St. Rep. 60, 36 Atl. 201; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 64 Am. St. Rep. 891. See Ison v. Rex Crude Oil Co., 147 Cal. 659, 82 Pac. 317. 43. Co. Litt. 54b; Astry v. Ballard, 2 Mod. 193; Cherokee Construction Co. v. Harris, 92 Ark. 260, 122 S. W. 485; McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 49 Am. Rep. 686, 27 Pac. 863; Moore v. Rollins 45 Me. 493; Gaines v. Green Pond Iron Min. Co., 33 N. J. Eq. 603; Lynn's Appeal, 31 Pa. 44, 72 Am. Dec. 721; Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733. But aliter, it has been decided, when the premises were, by the express terms of the lease, to be used only for agricultural purposes. Freer v. Stotenbur, 2 Abb. Dec. (N. Y.)
189, 34 How. Pr. 449.
As to the life tenant's rights in regard to royalties under mining leases made by the previous owner, see 2 Barringer & Adams Mines and Mining, 3; Campbell v. Wardlaw, L. R. 8 App. Cas. 641; Higgins Oil & Fuel Co. v. Snow, 113 Fed. 433, 51 C. C. A. 267; Priddy v. Griffith, 150 111.. 560, 37 N. E. 999; Hendrix v. Mc-Beth, 61 Ind. 473, 28 Am. Rep. 680; Poole v. Union Trust Co., 191 Mich. 162, Ann. Cas. 1918 E, 622, 157 N. W. 430; Re Owsley's Estate, 122 Minn. 190, 142 N. W. 129, McFadden's Estate, 224 Pa. 443, 73 Atl. 927; Keon v. Bartlett, 41 W. Va. 559, 31 L. R. A. 128, 56 Am. St. Rep. 884, 23 S. E. 664; Swayne v. Lone Acre Oil Co., 98 Tex. 597, S Ann. Cas. 1117, 86 S. W. 740.
44. Sayers v. Hoskinson, 110 Pa. 473, 1 Atl. 308; Irwin v. Cov-ode, 24 Pa. 162, 62 Am. Dec. 372; Koen v. Bartlett, 41 W. Va. 559, 56 Am. St. 884, 23 S. E. 664.
45. Elias v. Snowdon Slate Quarries Co., 4 App. Cas. 454. But see Neel v. Neel, 19 Pa. 323, where discontinuance was owing to lack of sale for the minerals, to want of capital, or to a like reason.46 And the right to work a mine or quarry which is already opened includes the right to sink new shafts on the same vein, or break new ground on the same rock, but not to work new veins.47
It has been decided in Canada, and presumably would be so decided in any jurisdiction, that in the case of a lease of land which is evidently for agricultural purposes, the lessee may remove stones in the land for the purpose of putting it into condition for agriculture.48