96 Tenn. 28 | Tenn. | 1896
This is a bill to stay waste by a remainderman against a tenant under the homestead laws, and for an account for timber cut, etc. The Chancellor refused any decree upon account, and divided the costs between the life tenant and remain-derman. He also enjoined the life tenant from cutting some trees left in a pasture lot, but refused any further relief. The remainderman appealed, and has assigned errors. The cause was assigned to the Court of Chancery Appeals, and has been heard by that Court, which has found the facts and affirmed the decree of the Chancellor, and the remainderman has appealed to this Court.
The defendant is a widow, and the premises involved were, many years ago, assigned to her as a homestead, and complainant became the purchaser of the reversion or remainder in the land, subject to such homestead. With her is joined, as a defendant, her son-in-law, who also resides on the premises. It appears that, in 1889, Mrs. Oslin caused several trees to be cut on the premises, and was proceeding to market them, when complainant objected, and threatened legal proceedings, which caused her to cease further cutting, and to promise to cut no more. Some of the cedar trees which had been cut were left on the ground. In 1894, the son-in-law, under direction of Mrs. Oslin, the homestead tenant, worked up some of this fallen timber, and cut some other trees, and worked them into marketable shape in the form of telegraph poles and
In February, 1894, defendants girdled some trees to kill them, so as to prepare about six acres of the ground- for grass and grazing purposes. The trees killed were blue and white poplar, small, and some wind shaken, and of small value, and comparatively useless for lumber. Some four mast trees to the acre were left for shade and mast. The Court of Chancery Appeals finds that this resulted in the benefit and betterment of the land, and that the repairs were beneficial and needed, and counterbalanced the value of the timber used, and that a sufficient, amount of timber is left to supply the place. The Court of Chancery Appeals was of opinion that the case was controlled by the principles announced in Owen v. Hyde, 6 Yer., 334, which involved the right of the widow on premises allotted to her as dower, and that the two estates were alike in quality and extent of interest, and otherwise, and the rules there announced were as proper-in homestead estates as in dower premises. In that
In Loomis v. Wilbur, 5 Mason, 13, it was adjudged not to be waste in a tenant for life to cut
In Disher v. Disher, 63 N. W. Rep., 368, a very recent case from Nebraska, it was held that a life tenant may cat timber so as to fit the land for pasturage or cultivation, if he does not thereby damage the inheritance.
It is evident, from an examination of the authorities, that the decision of the Court as to what constitutes waste, and what is permissible use of timber, is largely dependent upon the locality of the property and the extent and value of the timber. Thus, as stated in Owen v. Hyde, 6 Yer., 340, the law must necessarily be varied in this country from the English doctrine. There timber is scarce, and forest trees are planted and raised for fuel and timber, and it is of too much value to permit its unnecessary destruction. Here, on the contrary, a benefit often results to the estate by clearing away the timber, and it would be absurd to apply the rigid principles of the English law to a state of things wholly variant from theirs. The same difference exists between different States of the Union, in some of which the careful husbanding of timber is a matter of prime importance, while in others the clearing away of the forests is not only necessary to the use, but highly beneficial to the land. From the nature and character of the es
We think the defendants in this case have been guilty of no waste nor reckless or improvident use of the timber on the premises, but, on the contrary, have so used the freehold as to enhance its value to the remainderman as well as themselves,
The decrees of the Chancellor and of the Court of Chancery Appeals are therefore affirmed, and the costs will be paid as therein directed.