44 Barb. 447 | N.Y. Sup. Ct. | 1865
By the revised statutes, if a tenant in common commits waste, an action of waste may be maintained against him, by his co-tenant. (2 R. S. 334, § 3.) This provision was taken, originally, from the English statute, West, 2, ch. 22.
Waste is defined by the common law to be a spoil or destruction in houses, gardens, trees, &c. by the tenant for life or years to the prejudice of the heir, or reversion or remainderman. (Jacob’s Law Dic. and Bouv. Law Dic. title Waste.) By the common law, one tenant in common could not be guilty of committing waste; that is, the same acts which, committed by a tenant for life or years, would constitute waste, would not be waste when committed by a tenant in common. He was not liable to his co-tenant in an action of waste, for the injury done to their common estate. As he is, however, now liable by statute to respond to his co-tenant, in this form of action, for those acts which constituted waste when committed by a tenant for life or years, we must resort to the common law to ascertain whether the acts complained of in this case would be waste, had they been committed by a tenant for life or years. As a general rule, the law of England considers every thing to be waste which does a permanent injury to the inheritance. (Jackson v. Browning, 7 John. 232, citing Co. Litt. 53, 54.) Without any further reference to the English common law of waste, I have no doubt that the acts complained of in this case were waste, unless they come within an exception to the general rule; or rather, unless they are embraced in the rights belonging to the tenant for life or years. Such tenant has, as to wood and timber, some clearly defined rights. Unless restrained, by contract, he has the right to cut necessary fire wood, and timber sufficient and suitable for keeping the buildings in repair, and making agricultural erections, &c. (4 Kent's Com. 37. Co. Litt. 53 b. 1 Greenl. Cruise, 115. Jac. Law Dic. Waste.) Trees are parcel of the inheritance; and if they are overthrown by the lessee, or any other, or by a tempest, the lessor, in respect to his general ownership, has the right to them. Martyn v. Knowllys, (8 T. R. 145,) is cited by the counsel for both parties; apd it is pndérstood
It does not appear what kind of trees were felled, only
Ch. J. Savage does not notice the previous remarks of Lord Kenyon, that no injury had been committed to the inheritance, and that no waste had been committed. He seems to regard the case as authority for one tenant in common to cut and remove trees, provided they are fit to be cut, and that the remedy of the other co-tenant is an action to recover a moiety of the value of the trees. I do not understand that the fitness of the trees for cutting is the only test. But waiving this, if it should be shown that the tenant in common whose rights have been injured has no such remedy as these learned judges supposed, I apprehend that the position taken against maintaining the action in the nature of waste will be abandoned.
I suppose Lord Kenyon had reference to the statute of Ann, giving an action by one tenant in common against the other for receiving more than his share, and Oh. J. Savage to our statute taken from the statute of Ann; which is, one joint tenant or tenant in common, &c. may maintain an action of account, or for money had and received, against his co-tenant, for receiving more than his just proportion. (1 R. S. 750, § 9.) At common law, if one tenant in common occupied, and took the whole profits, the other had no remedy against him for his share, while the tenancy in common continued. It was" supposed that the statute of Ann had changed the law, in this respect; and it was so held by the court of queen’s bench, as late as 1850, in Henderson v. Eason. But upon a review in the exchequer chamber, the judgment was reversed. (9 Eng. Law and Eq. 337.) The statute underwent a careful examination; and it was decided that in such a case no action would lie. The statute gives the action only when one of the co-tenants receives more than comes to his just share, and he is made ..bailiff by
The question we are considering has recently undergone a careful examination in Woolever v. Knapp, (18 Barb. 265.) The English cases and statute, and our statute, are examined, and the same decision is made as in Henderson v. Eason, supra. In this latter case, Parke, B. says that one tenant in common may appoint his co-tenant his bailiff, and if the appointment is accepted, an action of account will lie against him, as against a bailiff of the owner of the entirety of an estate. That this was so at common law. This shows that the statute was necessary to render him liable, as bailiff, when he received more than his just share, in the absence of an appointment to and acceptance of the position of bailiff. If the cases just referred to, decided in the exchequer chamber and in this state, are sound, as I have no doubt they are, then Lord Kenyon was mistaken in supposing that the plaintiff, in another form of action, would be entitled to recover a moiety of the value of the trees that were cut, provided the
It can hardly be necessary to add that Savage, Ch. J. in Baker v. Wheeler, supra, was led into the like error, though it was not necessary to the decision of that case that any notice should have been taken of the law peculiarly applicable to tenants in common. The defendants were partners in the lumber business, and besides there was an agreement by the defendants with the plaintiff which gave the plaintiff the right, as the court held, to cut the logs.
Let us return to the case under consideration. The plaintiffs and four defendants were tenants in common of the lands. They were not partners in the lumber business. The principal value of the lands consisted in the timber upon them, and they were purchased by the partners on account of the timber, and for lumbering purposes. The defendants, without the consent of the plaintiffs, entered upon the lands and cut and removed a large quantity of timber, and converted the same to their own use. These acts, in my opinion, in view of all the cases, constituted waste, and I think that they are such acts as were contemplated by the statute, and the parties are tenants in common. If the statute, giving the action of waste by one tenant in common against another, is not to be applied to this case, it will be difficult to conceive a case of cutting timber to which it can be applied. Most of the timber and trees in our forests are “fit to be cut.” One of the great tests, as to waste, in cutting trees and timber, as already remarked, is whether the inheritance will be permanently injured. In the case so much.relied on, Lord Kenyon was careful to say: “No injury was done' to the inheritance.” The removal of the timber from our lumber lands will generally destroy nine tenths of the value of
There can be no hardship in applying the statute to this, and similar cases. If some of the tenants in common wish to avail themselves of their property, by removing the timber, and others do not, a partition can be had, at the instance of any of them. And I may add that unless the acts of the defendants, in this case, are held to be waste, and the statute is applied to them, I am not able to see that the tenants in common who are injured have any remedy.
The judgment must be reversed, and there must be a new trial; costs to abide the event.
Grover, Daniels and Marvin, Justices.]