101 Ill. App. 161 | Ill. App. Ct. | 1902
delivered the opinion of the court.
Under the amended bill appellants sought an accounting for timber which had been cut under the contract of sale made by their grandfather, John W. Good wine, with the W. F. Epperson Circled Heading Company, and an injunction against further cutting. Their contention is that Good-wine, having a life estate in the land, had no right to sell off the timber. We regard that as the leading question in the case.
The evidence shows that the entire body of land, of which the timber land in question was a part, was deeded by Goodwine as a gift to his daughter and her children. Appellants were but the recipients of her gratuity. The deed contained the following reservation: “ The grantor hereby expressly reserves to himself a life estate in all of said premises, without liability for the commission of waste on any part of said premises.” This reservation, together with the facts and circumstances attending Good wine’s management of the land, clearly shows that he intended to reserve to himself the right to control the premises as he pleased and as his own during his lifetime, with the right to sell such timber as he pleased. It is clear to our minds, therefore, that Good wine is liable to appellants for nothing short of willful and malicious waste.
An ordinary tenant for life is entitled to cut from the land timber for his firewood and for repairs on buildings and fences; but he is not permitted, as a general rule, to cut and sell timber. Where a tenant for life holds an estate “ without impeachment" of waste,” he has greater rights, however. '' He may cut timber of natural growth and remove it, and in fact do all things consistent with the preservation of the estate. He can not, of course, burn down necessary buildings or destroy productive orchards, for such acts would be wanton and malicious. But he may do any act with reference to the woodland that the owner of the fee might do, being restrained only from the commission of willful and malicious waste. He may thin out the timber of a wood’s pasture or cut off all the timber and cultivate it as a field. If the cutting is not wanton or malicious, and does not amount to equitable waste, it can not be restrained by the owner of the fee, even if he sells the timber. . (Amer. & Eng. Ency. of Law, Vol. 28, p. 864, 1st Ed.; Stevens v. Rose, 69 Mich. 259; Kent’s Com. 1V, 78; Co. Litt. 220 a; Tiedeman on Real Prop., Sec. 80.) There is no warrant whatever for saying that the removal of timber from this 260 acres of land in accordance with the contract entered into between Good wine and the heading 'company on November 26, 1898, or in accordance with the modification of July 27, 1899, would constitute equitable waste. In fact the evidence in the record tends to show ■that a removal of part of the timber, such as is con tern-plated by the contract, would render the land more valuable -for pasture.
The evidence does not support the contention that timber under size was cut by either the heading company or Gill after the modification of the contract on July 27, 1899. True, several witnesses testified that they saw recently cut stumps under fourteen inches, but they did not testify that the stumps were of white or swamp oak, the kinds prohibited under the modified contract. The evidence also shows that other parties had been cutting timber for fence posts about the same time, and that such posts were made of white oak and swamp oak under fourteen inches in size. Although there was much testimony heard by the master upon this point, it was very loose and unsatisfactory and not such as to support a finding that either Gill or the heading company had cut white oak or swamp oak under size after July 27, 1899.
We think the case was properly decided and the decree will be affirmed.
