| Mo. Ct. App. | Apr 14, 1890
Plaintiff is the owner of the reversionary interest in certain lands of which defendant is the owner of the estate by the curtesy. The action is for waste by alleged injury to the inheritance in cutting trees. There was a demurrer to the testimony offered by plaintiff, which, being sustained, plaintiff appealed. It is singular that in a case depending so much on dates and descriptions of land that there should be such indefiniteness as appears from the testimony introduced. There is sufficient in the evidence, however, to submit to the jury the question whether defendant did cut trees before the commencement of this suit on the land of which plaintiff owned the reversionary interest. Without analyzing the testimony, our opinion is, that, under the rule that every reasonable inference of fact to be drawn from the evidence is to be thrown on the side of the plaintiff, in passing on a demurrer to the testimony, the case, so far as concerns the doing of the act charged, was sufficient to submit to the jury.
But defendant’s contention is, also, that the act was not shown to be waste, in that plaintiff did not show 'that the destruction of the timber was not for the purposes of cultivation or other lawful purpose allowed a tenant for life. Waste is that which does a lasting damage to the freehold or inheritance, and tends to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance; In this country, where (at least until recent years) timber in many places is a hindrance to the enjoyment of the estate, whether it be for life or in fee, the law is that cutting timber for the purpose of cultivation (if it did not lessen the value of the inheritance) is a privilege following a tenancy for life, when it was necessary for the proper and
II. The question is raised whether threats to cut the timber off the land were admissible against the defendant as tending to show he committed the act. We think they are undoubtedly proper testimony. Not that threats alone would make a case against defendant, but, in connection with other evidence tending to implicate him, they are competent for the consideration of the jury. “ When the question is whether a person has done a particular thing, and some evidence of it has been given, it is surely competent to show in corroboration that he had avowed ,his purpose beforehand.” Dodge v. Bache, 57 Pa. St. 421.
III. The statute, 1879, section 3107, declares that if a tenant for life or year shall commit waste “without special license in writing so to do, he shall be subject to civil action,” etc. And defendant contends that it is incumbent upon the plaintiff to prove that he had not the special license. We think such matter is a negative averment, which will be taken to be true unless met by
IV. Plaintiff filed an amended petition in this cause, in which he charged waste to have been committed since suit, was instituted. , Evidence of such waste was excluded by the court, and, we think, properly. In actions at law, whatever may be the rule in equity, the cause of action must be complete at the beginning-of the.suit. “If it is not then complete, the complaint of the plaintiff must of necessity be either untrue or insufficient in law.” Gould’s Plead. 161. Filing an amended petition does not open up to plaintiff a cause of action accruing after the original petition was filed, and it operates only as a re-statement of a cause of action existing at the beginning. Many good reasons were suggested at the argument why plaintiff’s contention should be allowed, but it is not deemed to be “the law, and we rule the point against the plaintiff. For reasons foregoing, the judgment will be reversed, and the cause remanded.