45 Neb. 100 | Neb. | 1895
This is a petition in error and presents for review a decree of the district court of Gage county in a proceeding in, which the defendants in error were plaintiffs and the plaintiff in error was defendant, to restrain the commission of threatened waste by the defendant therein as tenant for life, and to recover for damage to the plaintiffs’ estate on account of waste previously committed. From the petition, which was filed March 6, 1891, it appears that Stephen T.. Disher died intestate on the ,22d day of March, 1884, leaving no issue, and that the plaintiffs, his brothers and. sisters, and children of deceased brothers and sisters, are his heirs at law; that deceased was at the time of his death, the owner of 560 acres of land in Gage county, which under the laws of this state descended to the plaintiffs, subject to the life estate therein of the defendant Sarah Disher, widow of said deceased; that the defendant has remained in possession of said property since the death of the said Stephen T. Disher, receiving the rents and profits therefrom ; that said property is rendered valuable by reason of growing timber upon a portion thereof (which is by-witnesses described as the home place); that on or about January 1, 1891, the defendant, without authority or license from plaintiffs, cut down and converted into cord, wood for the purpose of sale a large quantity of the most, valuable timber growing upon said premises, to-wit, 250. cords of four-foot wood; that she has contracted to sell 300 cords of four-foot wood and 100 cords of two-foot wood to be cut from said premises, and is now cutting and threatening to cut and cany away all of the valuable timber upon said premises, and which is especially valuable to said
We find in the several briefs submitted herein an exhaustive discussion of the rights of a tenant for life as against the reversioner with respect to growing timber upon the demised premises, but an examination of the many cases cited by counsel would result in an unnecessary prolonging of this opinion without corresponding profit. It is sufficient that we are constrained to adopt the rule asserted by Judge Cassoday, whose views upon this and kindred subjects are entitled to especial consideration, viz., that it is not waste for a life tenant to cut wood or timber so as to fit the land for pasture or cultivation, provided he does not, in so doing, damage or diminish the value of the-inheritance, and his acts are conformable to the rules of good husbandry, although the wood and timber so cut be-sold or consumed off the premises (see Wilkinson v. Wilkinson, 59 Wis., 557); and that view, which was evidently adopted by the district court, is in substantial accord with the authorities cited as bearing upon the jurisdiction of equity in like cases. Applying that rule to the facts of this case we have no difficulty in holding with the district, court, that the acts threatened, as well as those committed, constitute equitable waste. Indeed, the natural and only iuference is that the cutting of the timber is a manifest injury to the inheritance and a wanton abuse of the defendant’s rights. It is shown by the evidence of plaintiffs’" witnesses, aud not disputed, that the reason assigned by the
A ffirmed.