McCay v. Wait

51 Barb. 225 | N.Y. Sup. Ct. | 1868

By the Court, E. Darwin Smith, P. J.

Waste, as Blackstone defines it, is “ a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments to the disherison of him that hath the remainder or reversion in fee simple or in tail.” (2 Black. Com. 382.)

The doctrine of waste of the common law is not in its strictness applicable to the condition of things in this country. What in England might be injurious to the inheritance and therefore waste, would probably, in most parts of this country, be the very reverse of injury to, would be actual improvement of, the estate. But the law remains with us as in England, that such cutting of trees or timber as will work a permanent injury to the freehold or inheritance, in the absence of any specific leave or license to cut such trees or timber, is waste for which an action will lie, in equity, for the prevention of such injury by injunction, before it is committed, or at law, for the recovery of damages, ■ by the remainder-man, after the injury is done. Such is this action.

Whether the cutting of trees and timber in any ease is such an injury to the inheritance, or not, is necessarily a question of fact, and depends upon the particular circumstances of every case. This question belongs to the jury, unless it is tried by the court, as in this case, by the consent of the parties, when the judge is substituted in the place of the jury. (Jackson v. Brownson, 7 John. 226. Doe v. Wilson, 11 East, 56. Hinchman v. Irvin, 3 Dana, Ken. 123.)

The learned judge who tried this action at the circuit, finds as matter of fact that the defendant, while in possession of the premises in question, wrongfully cut and destroyed and converted to his own use all the timber on the north part of said grove, standing adjoining and south of Main street, in said village of Bath, covering about two ' acres, disfiguring the premises in question, and materially injuring the inheritance.' And he further finds, as a conelusion of law, that the defendant, in cutting and destroying the timber aforesaid, committed waste on the premises in question, of which the plaintiff was seised of an estate of inheritance. The finding in fact is in substance and effect a finding that the cutting of the timber in question was waste.

[Monroe General Term, June 1, 1868.

E. D. Smith, Johnson, and J. C. Smith, Justices.]

This finding not being unwarranted by thq evidence; it seems to me conclusive, and cannot be disturbed.

The judgment must, therefore, be affirmed.