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 .
Trees are, for the purpose of the law of waste, divided in England into "timber" trees and trees not timber. Some trees, such as oak, ash, and elm, seem to be invariably regarded as timber, but other trees may be, and frequently are, timber by the custom of the particular neighborhood. Trees are not, however, considered timber until twenty years of age, and, by custom, may require even a greater age in order to be so considered.49 This distinction between timber trees and trees not timber has, in that country, important results. Timber trees are considered as part of the inheritance, and consequently a tenant has no right to cut them except upon land where it has been the cusa different view was taken as to the rights of a life tenant.
46. Gaines v. Green Pond Iron Min. Co., 32 N. J. Eq. (5 Stew.) 86; Bagot v. Bagot, 32 Beav. 509. See Stoughton v. Leigh, 1 Taunt. 402.
47. Havering v. Clavering, 2 P. Wms. 38S; Elias v. Snowdon Slate Quarries Co., 4 App. Cas. 466; Billings v. Taylor, 27 Mass. (10 Pick.) 460; Moore v. Rollins, 45 Me. 493; Gaines v. Green Pond
Iron Min. Co., 33 N. J. Eq. (6 Stew.) 603; Irwin v. Covode, 24 Pa. 162, 62 Am. Dec. 372; Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733.
48. Lewis v. Godson, 15 Ont. 252. See dictum to the same effect in Dearden v. Evans, 5 Mees. & W. 11.
49. Co. Litt. 53 a; Bewes. Waste, 98; Honywood v. Hony-wood, L. R. 18 Eq. 306; Dashwood v. Magniac  3 Ch. 306.
50. Perrot v. Perrot. 3 Atk. 94; Ferrand v. Wilson, 4 Hare, 344; Dashwood v. Magniac  3 Ch. 306.
51. Co. Litt. 53 a; Bewes, Waste, 58; Phillips v. Smith, 14 Mees. & W. 589.
52. Co. Litt. 53 a; Herlaken-den's Case, 4 Coke, 62.
53. Honywood v. Honywood, L. R. 18 Eq. 306.
54. Bewes, Waste, 95; Co. Litt. 53 a.
55. Co. Litt. 53 a; Honywood v. Honywood, L. R. 18 Eq. 309; Phillips v. Smith, 14 Mees. & W. 589.
56. Dawson v. Coffman, 28 Ind. 220; Cannon v. Barry, 59 Miss. 289; Disher v. Disher, 45 Neb. 100, 63 N. W. 368; Jackson v. Brown-son, 7 Johns (N. Y., 227, 5 Am. Dec. 218; Kidd v. Dennison, 6 Barb. (N. Y.) 9; King v. Miller, 99 N. C. 583, 6 S. E. 660; Sayers v. Hoskinson, 110 Pa. 473, 1 Atl. 308; Owen v. Hyde, 6 Yerg. (Tenn.) 334, 27 Am. Dec. 467; Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 513; Drake v. Wigle, 24 U. C. C. P. 405.
57. Proffitt v. Henderson, 29 Mo. 325; Cannon v. Barry, 59 than enhances the value of the land,58 or if the real purpose of the cutting is the sale of the timber,59 or some other purpose not conducive to the benefit of the land.60 The question is, it is said, to be determined with reference to what one would do, in the exercise of good husbandry, if he were the owner of the fee 61 and also with regard to the custom of the neighborhood.62 The fact that but a small proportion of the property is woodland is a strong consideration against the tenant's right to remove timber.63 The cutting or destruction of fruit trees is waste,64 but not of dead trees.65 In some of the New England states, however, it seems questionable whether the cutting of wood, otherwise than for estovers, by a tenant in possession, is in any ease allowable.66 The question whether the cutting of timber by a tenant is reasonable, and in accordance with the custom of the country, has been regarded as one for the jury.67
Miss. 289; Davis v. Gilliam, N. C. (5 Ired Eq.) 308; King v. Miller, 99 N. C. 583, 6 S. E. 660; Keller v. Eastman, 11 Vt. 293; Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 513.
58. Rutherford v. Wilson, 95 Ark. 246, 37 L. R. A. (N. S.) 763, 129 S. W. 534; Warren County v. Cans 80 Miss. 76, 31 So. 539; Proffit v. Henderson, 29 Mo. 325; Disher v. Disher, 45 Neb. 100, 63 N. W. 368; Jackson v. Brownson, 7 Johns. (N. Y.) 227, 5 Am. Dec. 258; Mooers v. Wait, 3 Wend. (N. Y.) 104; Davis v. Gilliam, 40 N. C. (5 Ired. Eq.) 308; Johnson's Adm'r v. Johnson, 2 Hill Eq. (S. CI.) 277, 29 Am. Dec. 72.
Although a life tenant had no right to cut timber, he was regarded as entitled to a life interest in a fund consisting of damages for destruction of timber and the proceeds of sale. Kenis-ton v. Gorrell, 74 N. H. 53, 64 Atl. 1101. See post, Sec. 291.
59. McLeod v. Dial, 63 Ark. 10, 37 S. W. 306; McCarroll v. Falls, 129 Ark. 245, 195 S. W. 387; furnace.69 And a tenant for life has, on a like principle, been allowed to use wood oil the premises in con nection with salt wells also located thereon.70
Smith v. Smith, 105 Ga. 106, 31
S. E. 135; Modlin v. Kennedy, 53 Ind. 267; Noyes v. Stone, 163 Mass. 490, 40 N. E. 856; Moss Point Lumber Co. v. Board of Supervisors of Harrison County, 89 Miss. 448, 42 So. 290; Davis v. Clark, 40 Mo. App. 515; Johnson v. Johnson, 18 N. H. 594; More-houe v. Cotheal. 22 N. J. L. 521; Goldsboro Lumber Co. v. Hines Bros. Lumber Co. 153 N. C. 49. 68 S. E. 929; Thomas v. Thomas, 166 N. C. 627, 82 S. E. 1032.
60. Armstrong v. Wilson, 60 111 236 Cook v. Cook, 11 Gray (Mass.) 123.
61. Drown v. Smith, 52 Me. 141; Cannon v. Barry, 59 Miss. 289, Chase v. Hazelton, 7 N. H. 171; Norris v. Laws, 150 N. C. 599, 64 N. E. 499; Keeler v. Eastman, 11 Vt. 293; Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 513.
62. Proffit v. Henderson, 29 Mo. 329; Morehouse v. Cotheal. 22 N. J. Law (2 Zab.) 521; Mc-Cullough v. Irvine's Ex'rs, 13 Pa." 438; Drown v. Smith, 52 Me. 141; Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733.
63. Powell v. Cheshire, 70 Ga.
The terms of the lease may authorize such a cutting of timber as would otherwise be waste,68 and the nature of the property may be such as to give rise to an implication of a license to that effect. Accordingly it has been decided that where a smelting furnace was leased together with adjoining land, there was an implication of a right in the lessee to use wood for the smaller house is waste because it increases the change for repairs,79 and such a reason might have weight at the present day
357, 48 Am. Rep. 572; Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004; Hastings v. Crunckleton, 3 Yeates (Pa.) 261; McLeod v. Dial, 63 Ark. 10, 37 S. W. 306.
64. Bellows v. McGinnis, 17 Ind. 64; Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004; Silva v. Garcia, 65 Cal. 591; Co. Litt. 53 a; Bewes, Waste, 95. Allowing cattle to injure fruit trees is waste. Warder v. Henry, 117 Mo. 530, 23 S. W. 776. Welland v. Strickland, 161 Mich. 235, 126 N. W. 471.
65. Savers v. Hoskinson, 110 473, 1 Atl. 308; Keeler v. Eastman, 11 Vt. 293; King v. Miller, 99 N. C. 583, 6 S. E. 660.
66. See Ford v. Erskine, 50 Me. 227; White v. Cutler, 17 Pick. (Mass.) 248, 28 Am. Dec 296; Clark v. Holden, 7 Grey, (Mass.) 8, 66 Am. Dec. 450; Chase v. Hazelton, 7 N. H. 171; Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621.
In Kentucky it has been said that it can be cut only for domestic purposes, McCoy v. Ferguson, 164 Ky. 136, 175 S. W. 23; and not for commercial purposes. Kentucky River Consol. Coal Co. v. Frazier, 161 Ky. 374, 170 S. W. 986; Stepp v. Lowe, 167 Ky. 631, 181 S. W. 352. And in North Carolina cutting has been said to be justified only for repairs. Thomas v. Thomas, 166 N. C. 627, 82 S. E. 1032. But see Norris v. Laws, 150 N. C. 599, 64 S. E. 499.
67. Rutherford v. Wilson, 95 Ark. 246, 37 L. R. A. (N. S.) 763, 129 S. W. 534; Drown v. Smith, 52 Me. 141; Jackson v. Brownson, 7 Johns. (N. Y.) 233, 5 Am. Dec. 258; King v. Miller, 99 N. C. 583, 6 S. E. 660; McCullough v. Irvine's Ex'rs, 13 Pa. 438. See ante
Sec. 279, note 26.
68. See McDaniel v. Callan, 75 Ala. 327.
Another reason, upon which the older authorities lay much stress, for regarding a substantial alteration in the character of a building, even though beneficial, as constituting waste, is that thereby the means of identifying the premises are diminished and the evidence of title is consequently affected.80 This latter reason, however, is of little, if any weight; at the present day, when property is described by metes and bounds, or courses and distances, or with reference to a plat or survey.81 But there is, it seems, a more fundamental consideration which has moved the courts to regard as waste any considerable alteration by the tenant in the premises leased, and that is, that by a lease the lessee is given merely the right to use the building, and that the landlord has a right to receive hack, at the end of the term, the very thing which he has leased.82 So it is said in early cases that the conversion of a brew house into a dwelling house, producing a greater net rental, is waste, "because of the alteration of the nature of the thing,"83 and that it is waste if the lessee tears down a wall between a parlor and a chamber "because it cannot be intended for the benefit of the lessor, and it is not in the power of the lessee to transpose the house."84 In accordance with this doctrine, it has been decided in this country that the demolition of a building will be restrained although for the purpose of substituting a
Rights of Enjoyment.
- Estovers. A tenant for life or years; pr from year to year, but not a tenant at will, is entitled to cut and appropriate a reasonable quantity of timber for the purpose of repairing buildings, fences, gates, and the like, which were upon the premises at the time of the demise, and also for repairing implements of husbandry, and he may, moreover, take sufficient wood to burn in the house, or, it seems, in houses occupied by his servants. The timber which he is thus entitled to take is known as "estovers" or "botes."71 He is, however, guilty of waste if he cuts down growing wood when there is sufficient dead timber for the purpose, or if he takes superior rather than inferior trees, and likewise if he takes more than a reasonable amount, or if he sells the timber so cut.72 He has no right to take timber for repairs which have been rendered necessary by his own fault.73 He can, it appears, instead of using the timber from the premises for the purpose of repairs, exchange that timber for other timber to be used for the repairs, if, it seems, this is a clear saving to the reversioner or remainderman, and
69. Den. v. Kinney, 5 N. J. Law (2 Southard) 552. So where a mine was leased with the right to smelt ore therefrom. Wilson v. Smith, 13 Tenn. (5 Yerg.) 381.
70. Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 773.
71. Co. Litt. 41b, 53b; Harris v. Goslin, 3 Har. (Del.) 340; Wallers v. Hutchin's Adm'r, 29 Ind. 136; Calvert v. Rice, 91 Ky. 533, 16 S. W. 351; Hubbard v. Shaw, 12 Allen (Mass.) 120; Smith v. Jew-ett, 40 N. II. 530; Gardiner v. Der-ring, 1 Paige (N. Y.) 573; Wright v. Roberts, 22 Wis. 161. The cases on the subject are collected in a note:n 68 L. R. A. 641.
72. Co. Litt. 53b; Simmons v. Norton, 7 Bing. 640; Doe d. Foley v. Wilson, 11 East, 56; Johnson v. Johnson, 18 N. H. 594; Padelford v. Padelford, 24 Mass. (7 Pick.) 152: Phillips v. Allen, 89 Mass. (7 Allen) 115. See Anderson v. Cowan, 125 Iowa, 259, 68 L R. A. 641. 106 Am. St. Rep. 303, 101 N. W. 92.
73. Co. Litt. 53 b.
R. P.-61 not otherwise.74 The question whether trees have been cut down in good faith for the purpose of repairs has been regarded as one for the jury.75