42 So. 290 | Miss. | 1906
Lead Opinion
delivered tbe opinion of the court on the first decision of the cause.
This is a bill to enjoin the appellant from further cutting or removing timber from a sixteenth section, which- it held under a lease of ninety-nine years, and for an accounting of that already cut, on the ground that such cutting was waste. The bill charges that the cutting was purely for sale, and that the avowed purpose is to cut and remove the entire timber growth, and solely for commercial uses. It charges that the lease was made in 1882, for the sum of $885, and, as will be particularly noted, states as follows: “That said land, by reason of the character of the soil, is unfit for cultivation, and that the only value it possesses is given it by the merchantable pine timber growing thereon.” The lease is under Code 1880, § 132, pursuant to appraisement under that section, of “the value of the land.” A demurrer to this bill was filed on the grounds, first, that the right to cut was contemplated by the parties to the lease; second, that the title to the trees was vested by the lease; third, that the bill showed that the lease was of no value, except for the trees; and, fourth, that there is no equity on the face of the bill. This demurrer was overruled, and the timber company appeals to settle the principles of the case.
It is apparent that the scope and meaning of the lease, and the intent and understanding of the parties to it, must be determined by the act of 1833 in reference to such leases of school lands, construed in the light of the common law, and the condition of the country at that time, and the usage of the country since. It must be noted that no question was ever made of the right of such lessees to do what they pleased with the growing timber until about six years ago. We will first
In 28 Am. & Eng. Ency. Law (1st ed.), p. 891, the text is as follows (see, also, 30 Am. & Eng. Ency. Law [2d ed.], p. 258 el seq.) : “At the common law a tenant for life or years was not liable for waste, because it was presumed that the demise or lease creating his estate would have provided against waste if it were to be prohibited; but the common law was changed by the statutes of Marlebridge (52 Henry III.), and Gloucester (6 Edw. I., c. 5), and tenants for life or years were made liable for waste. These statutes have been modified, and some of their provisions re-enacted, in some of the states of the union, or are considered a part of their common law.” The statute of Marlebridge referred to in the text was ordained A.D. 1269, and that of Gloucester A.D. 1278, before when we may assume that England, in the particular of forest growth, bore some resemblance to Mississippi in 1833. Note 2 to the text of the encyclopaedia cites Moore v. Ellsworth, 3 Conn., 483, and Poe v. Hardie, 65 N. C., 447, and reproduces the language of Lord Coke, 2 Inst., 300, as follows: “For that the law created their [tenants in dower and by the curtesy] interests, therefore the law gave against them a remedy; but a tenant for life or years came in by demise and lease of the owner- of the land, etc., and therefore he might in his demise have provided against the doing of waste by his lessee, and, if he did not, it was his negligence and default.” It may be noted here that Lord Coke (Inst. by. 2, *634, *635) repeats this doctrine in these words: “In this particular case the statute of Gloucester, which giveth the action of waste against the lessee for life or years (which lay not against them at common law),” etc. So, in the note to top page 266, vol. 3 of Thomas’ edition of Coke upon Lyttleton, it is stated that
In all discussions of waste in the texkwriters and the reports it will be seen that they have reference to leases, since those statutes in nearly every instance, and that there is no difference about what the common law was before those statutes. In 3 Washburn on Real Property, sec. 270, the common law rule is stated as in Smith and Woodfall, supra. In the opinion in the case of Moore v. Ellsworth, 3 Conn., 487, 488, is this language: “It is said by Sir Edward Coke (2 Inst., p. 145) that waste was punishable at common law in tenant in dower, tenant by the curtesy, and a guardian, but not in tenant for life or for years; and for the distinction he assigns this reason: That the law, which created the former of these estates and interests, provided a remedy itself against waste, but left the owners of land, who created the others, to provide a remedy in their demise. This reason, Reeves, in his History of the English Law, considers as only plausible, and the diversity as
As before indicated, all the decisions in this country on the subject of waste have reference to waste on farms in cultivation. Many of the states have re-enacted the statute of Marie-bridge and Gloucester in ohe shape or another, and some courts have simply followed the English decisions on these statutes as if they announced the common law. But these statutes have not, and never did have, any force in Mississippi. English statutes have no force in,this state since the act of 1807. Jordan v. Roach, 32 Miss., 482; Sessions v. Reynolds, 7 Smed. & M., 130; Boarman v. Catlett, 13 Smed. & M., 149; Ingraham
After the' foregoing necessary review of the decisions on the common law, it is necessary to examine the legislation of Mississippi, in order to ascertain the intention of the parties in a contract for a ninety-nine-year lease of sixteenth section
This case falls distinctly in the class referred to above, where the statute of Gloucester is put in force by enactment. There is, as before stated, another class of cases, which assume that statute to be in force as common law without discussion. If it can be said of any principle that it is immovably fixed in the law of Mississippi, it is that no statute ever enacted in Great Britain has any force here unless re-enacted by our own legislature. Jordan v. Roach, 32 Miss., 481; Boarman v. Catlett, 13 Smed. & M., 149; Sessions v. Reynolds, 1 Smed. & M., 130; Ingraham v. Regan, 23 Miss., 213. Surely any assault on this proposition need not be noticed. It follows, therefore, that the statutes of Marlbridge and Gloucester are nullities so far as this state is concerned, and it is the law of this state, as applicable to a . ninety-nine-year school land lease of this state, which we are considering. On this we are driven to the common law existing before those statutes, and which, by all the decisions, is the law here, so far as suitable to our conditions at the date of the contract. To learn what this common law is, we have quoted three distinct utterances of Lord Coke. If these are “idle talk,” and so to be considered by the profession, though sustained by nearly all of the learned law writers and judges who have treated the subject, of course there is an end to argument on that line; but this would not affect our conclusion from a proper interpretation of the statutes of Mississippi and of this particular lease. Our view is that this lease, in view of
It is contended that the act of 1833 is not a repeal as to waste, but an amendment of the act of 1824, and that Hutchinson says so. We deny both propositions. The last act reviews the whole subject and is silent as to waste. Hutch. Code, pp. 205, 210, 213, c. 9, arts. 2, 5, 12. The machinery for leasing is unaffected. The terms of the law show the intent. It is idle to cite cases, in which the boohs abound, that waste is predicable of all leases. These are all, in all instances, from states where the statutes of Marlbridge and Gloucester are in force, and from nowhere else. Everywhere else the question of waste can or cannot be implied in reference to the common law as applied to local conditions. In Smith’s. Manual, an English hornbook for boys, the two statutes are, in general terms, taken as common law; but in his elaborate and extended work of Landlord and Tenant, as before shown, he states the rule as Lord Ooke does and as we do. It is idle, also, to confuse legal with equitable waste, and produce authorities on this. Here the question is one of the intent of the parties to the contract. Here the timber is the only thing of value in the present lease, and was of no value at all in 1833. The idea that the universal demand is to sustain suits for waste is without a place in courts. And so of the idea of the benefits to unborn children. The only question is what the law is. The people want to be honest. But it is not true in fact. The children will be benefited throughout the state by our view.
Reversed, demurrer to bill sustained, and remanded.
Concurrence Opinion
delievered the following concurring opinion on the first decision of the case.
I concur specially in the conclusion reached in this case. I deem it unnecessary to enter upon any discussion of the general principle whether an action of waste is predicable of a tenancy for years, whether for one or ninety-nine. I base my conclusion upon the language of the statutes germane to this'matter, upon the uniform construction placed thereon, and the unbroken practice heretofore existing. In my opinion it was clearly the intention of the legislature, in enacting the act of 1833 and all subsequent statutes dealing with this matter, to vest in the purchaser of the sixteenth section school lands as full and complete ownership as if the title was in fee, subject, only, to the condition that the holding was to terminate at a specific date. In plain words, while the letting was termed a lease, it was in truth intended to operate as a fee determinable at the end of ninety-nine years. To this extent I agree with the opinion of the court, and for this reason concur in the conclusion.
After the delivery of the foregoing opinion a suggestion of error was filed by Longino, Willing & Wilson, solicitors for the appellee, and after consideration thereof, the case was decided a second time and the following opinions read.
delivered the opinion of the court on the second decision of the cause.
This cause was decided at the last term of court by a majority court; Whitfield, 0. J., dissenting. Subsequently a suggestion of error was filed, and the case is now before the court on this suggestion of error.
The board of supervisors of Harrison county filed a bill in the chancery court against the Moss Point Lumber Company, seeking to enjoin it from cutting down and using the timber on a sixteenth section of. school land. The substantial allegations
A demurrer was filed to the bill, stating the following grounds of demurrer: First, under the facts alleged, the right to cut and remove the timber from the land was contemplated by the lessors and lessee, and defendant, as lessee, was entitled to cut and remove the same; second, that the title to said timber was, under the lease, vested in the original lessee, and in the defendant as holder and owner thereof; third, it appears from the bill that the unexpired term, was of no value other than the timber thereon, and the appraisal of said leasehold interest was based upon the timber alone, and, therefore, the complainants were estopped to deny said lessee the right to cut and remove the same; fourth, there is no equity in the face of the bill as against the defendant.
In the consideration of this case, the first question to be settled is the classification of the estáte conveyed to appellants;
The original oinnion in this case says: “By universal understanding, the lessee for ninety-nine years of sixteenth section lands acquired all the rights of an owner in fee for the time. The long time, the public necessity for clearing, the fact that practically the whole state was forest, the uncertainty of the future, the absence of any provision for liability of the appellants of any sort, . . . gives to these lessees the rights of an owner in fee for the time.” Again, the original opinion states that: “The statutes of Marlbridge and Gloucester are nullified so far as our state is concerned, and are not the law of this state as applicable to a ninety-nine-year lease of school lands, which we are considering.. On this we are driven to the common law existing before those statutes, and which, by all the decisions, is the law here, so far as is suitable to our conditions at the date of the contract.” Again, the court in its original opinion says: “Our view is that the lease, in view of the conditions
We desire to call attention to the fact that the statutes of Marlbridge and Gloucester were passed nearly 600 years ago, for the purpose of relieving what was then considered a hardship on the lessors of land. It will also be observed, that the statute of Marlbridge provided that a tenant should forfeit single damages for waste, and the statute of Gloucester, passed afterwards, provided that the tenant should forfeit treble damages and forfeit the estate. We call attention to the characteristics of these statutes, which we will treat of in this opinion later on.
It will be notice that the court in its original opinion makes its conclusion of law applicable only to a ninety-nine year lease. We are unable to see how this distinction can be drawn, or to agree with this view, or concede that any different law is •applicable to one estate for years than applies to all estates of the same kind. Lot us examine the law on this subject. The length of time for which a lease is to run never can change the principle which governs the kind and character of the estate conveyed. If an estate cán be made to endure for 1,000 years, it is none the less an estate for years, and none the less controlled by the principles which govern the class of estate to which it 'belongs. For the above-announced principles we cite: 1 Tiffany, secs. 36, 84; Goodwin v. Goodwin, 33 Conn., 314; Ware v. Washington, 6 Smed, & M., 737; Dillingham v. Jenkins, 7 Smed. & M., 479; Gay, Administrator, 5 Mass., 419 Cooley’s Blackstone, vol. 1, book 2, p. 142; Spengler v. Stanler, 1 Md. Ch. Dec., 36; Faler v. McRea, 56 Miss., 227; Webster v. Parker, 42 Miss. 471; Washburn’s Real Property; Whitmire v. Wright 58 Am. Rep., 724. In commenting on the authorities cited above for the purpose of showing that a lessee
In the case of Goodwin v. Goodwin, 33 Conn., 314, a widow claimed her right of dower in a nine hundred and ninety-nine-year lease, and the court said: “If an estate for so long a term of years can be regarded as real estate, then dower should be allowed; otherwise not. The general principle is that an estate for years is less than a freehold, and is nothing more than a chattel real, and is classed as personal property. Does a long term of years stand upon different ground in this respect from a short one? Of course, the value of the reversionary interest depends upon the length of time the estate is to continue, and such value in the. present case is exceedingly small, too small for any substantial benefit; but does the difference in the value or reversionary interests make any difference in the principle? If this estate had been created nine hundred and ninety-nine years ago, it would be conceded that Horace Goodwin would have had only a chattel interest. Tf, then, at the commencement it is to be regarded as a fee simple, at what time will it change to chattel real? The claim of the plaintiff involves the necessity of fixing time, and the absurdity of holding that immediately before the time shall arrive the estate will bo a fee simple, and immediately after a chattel interest merely. We are unable to discover any difference in principle in this class of estates, whether they are to endure for a short or a long period of time, and we are satisfied that no distinction can be found in the common law.” The case quoted above is strikingly applicable to the case under consideration, when it is sought to give a lessee for ninety-nine years the rights of a fee simple owner, by calling his lease a fee
But we have more direct authority than the authorities above quoted, and we merely use them for the purpose of showing that, where the period of lease was for nine hundred years longer than the lease in thp case under consideration, it was nevertheless held to be governed by the same characteristics as governed all estates for years, and an estate of no higher right or dignity was created by phe nine hundred and ninety-nine-year lease than was created in a lease for a shorter period of years. The thing, after al|, is that it is a lease for years. In the case of Ware v. Washington, 6 Smed. & M., 741, in speaking of a lease of the sixteenth section lands in this state, the court says: “The lease for ninety-nine years was but a chattel title. The dower is a freehold estate, which never can be carved out of an estate for years, A lease for any definite period is a lease for years. A lease for one year and a lease for ninety-nine years create an estate of the same dignity.” The case above quoted was decided in 1846. The same principle is repeated in the case of Dillingham v. Jenkins, 7 Smed. & M., 479, and deals with the sixteenth section lands in the state of Mississippi. The case last above cited was before the court twice; first in Montgomery v. Dillingham, 3 Smed. & M., 647, and again in the report cited ajiove. Justice Sharkey, delivering
We now turn our attention to the question as to whether or not a tenant for years is liable for waste. Independently of the statutes of Marlbridge and Gloucester, and independently of whether or not they form a part of our common law, we think this question is as firmly settled and buried in our jurisprudence as any principle of natural right can sink itself in the jurisprudence of any state. Whenever this question has arisen in this state it has been decided in the affirmative. It was so decided in the Gans case, 80 Miss., 16 (s.c., 31 South. Rep., 539) ; Walton v. Lowrey, 74 Miss., 487 (s.c., 21 South. Rep., 243); Learned v. Ogden, 80 Miss., 769 (s.c., 32 South. Rep., 278; 92 Am. St. Rep., 621) ; Cannon v. Barry, 59 Miss., 289. The Gans case is the most recent and accurate announcement of this principle. The question cannot be considered an open one in this state. Any tenant for years, it matters not how many years his tenancy may run, is liable for waste when he does those acts which are defined as waste, determined by the conditions and circumstances which exist at the time when the acts are committed. Any contrary holding would shock common understanding of the law. It may be stated that it is a universal rule in this country that, unless exempted by the terms of the lease from responsibility for waste, a .tenant is
It is held in many of our decisions that the common law is the law of this state, as far as it is adapted to our institutions and circumstances, when not repealed by statute, or varied by usage which long custom has superseded. Vicksburg & Jack
The acts of 1818 and 1824 contained a special injunction against the tenant committing waste. The act of 1833, amendatory of the acts just quoted, and all succeeding laws, are silent on this subject. In the argument of counsel much time is devoted in an effort to show that, because the statute succeeding the 'acts of 1824 was silent as to waste, the tenant could therefore deal with the property as an owner, and was not liable
In the former opinion it is stated that the act of 1833 repealed the act of 1824 in reference to its provisions against waste; that it was found utterly impracticable to make the lease with the prohibition against waste in the law, except in scattered instances where the lands were near the towns. As we have stated above, this prohibition against waste, placed in the acts referred to, was unnecessary in so far as it created any right to proceed against the tenant for waste. This act but declared the law upon that subject which was then in existence. Without it the lessor had the right to proceed, and with it no new right was given him. But we do not agree with the former opinion of the court in this regard for another reason. It will be noticed that in the act of 1818 a lease could only be made for three years. The act of 1824 changed this, and increased the period of the lease to five years. The act of 1833 changed both acts in this particular, and authorized a leasing for ninety-nine years. We conclude that if leases could not be made under the acts of 1818 and 1824, as stated in the former opinion, it was not because of the prohibition against waste, but because of the short term the leases were to run, and it was for the purpose of increasing the time that the act of 1833 was passed.
It is alleged in the bill that the appraisal of the leasehold value was based upon the quality and quantity of merchantable timber. This allegation of the bill is not sustained by the lease, which is filed as an exhibit to the bill; nor did the statute
The next question which we will consider is the question of what constitutes waste. Waste is defined to be any substantial injury done to the inheritance, by one having a limited estate, during the continuance of his estate. By universality of authority the cutting of timber for commercial purposes by a tenant for years is waste. We may safely say that there are hardly any authorities to be found in conflict with this statement. 1 Tiffany, sec. 249, p. 564; Warren County v. Gans, 80 Miss., 76 (s.c., 31 South. Rep., 539); Taylor on Landlord and Tenant, sec. 353, p. 271; Tiedeman on Real Property, sec. 69; Lester v. Young, 14 R. I., 579; Davis v. Clark, 40 Mo. Alpp., 515; Smith v. Smith, 105 Ga., 106 (31 S. E., 135); Davis v. Gilliam, 40 N. C., 308; 1 Washburn on Real Property, secs. 275, 276; Proffitt v. Henderson, 29 Mo., 325. When the authorities cited above ar£ examined, there will be found many references to authorities not cited in this opinión.
What rights have tenants for years ? The answer to this^ question can be placed in no better language, or more accurate expression, than the rule laid down in the Gans case: “The rigid rule of the common law that a tenant of a particular state could not cut timber, except for estovers only, is in many jurisdictions modified, so as to allow him to cut off timber for clearing so much of the estate as the needs of his family may require for their support, though the timber be destroyed thereby. And he may clear for cultivation such portions of it as a prudent owner in fee would clear for that purpose, provided he leaves enough timber and wood as may be necessary for the permanent use and enjoyment of the inheritance. His right to open and clear for cultivation wild and uncultivated land is that of a prudent owner, having regard to its amelioration
It must not be forgotten that the only title these lessees hold is that of a tenant for years. Their estate is stamped with this character at the instant of its creation, and it lasts throughout the entire period of tenancy, in whomsoever the tenancy may exist. Every instant of time, during the continuance of the tenancy, the tenant must conduct himself as a prudent owner of the fee in the exercise of good husbandry. If at the beginning of this lease the timber had been valueless and the tenant had destroyed it, he would not have been guilty of waste. If the timber had stood upon the land, and the tenancy had been in existence for forty years, and the timber, from being valueless, had become valuable for commercial purposes, and the
It is argued in this case that because of the allegation in the bill that the nature and character of the soil makes the land unfit for cultivation, and that its only value consists in the merchantable timber standing on it, it was intended for the lessee to use it for that purpose. In answer to this we state that the usual purposes for which lands are leased are agricultural purposes, and, unless the contrary be stipulated in the lease, the lease of the land carries with it only such rights as go- with ordinary leases. The original lessees of the land were the best judges of what use the land could be subjected to, and in taking the lease they are conclusively presumed to have taken it with such rights as go with a lease of land, and the right to cut and sell the timber is not such a right as goes with the lease. In this connection we quote from the opinion of Chief Justice Burkin., in the case of Davis v. Gilliam, 40 N. C., 310, which was a bill filed to restrain waste. The court said: “It is certainly proper, in cases of this kind, to have a view to the spirit and reason of the common law; and therefore many things that constitute waste in England, and may hereafter do so here, because prejudicial to the inheritance, ought not to be so held here at present, because they do not prejudice, but rather improve, the
We have approached the consideration of the suggestion of error with the greatest deference and respect for. the former opinion rendered herein. But wc have no hesitancy in announcing our conclusion that the opinion of the court was wrong. We feel strengthened in this opinion by the fact that the Gans case was decided in 1902, after the fullest argument, by a unanimous court, our distinguished associate Justice Oalhoon, now dissenting, being a member of the court at that time, and then holding the view .we now reannounce. A decision contrary to our holding would involve the necessity of overruling this decision decided a little over four years ago. When a question has been settled by this court, it should be treated as no longer open for review and investigation, unless the evil resulting from the principle established by it is manifest and mischievous. We cannot say this of the Gans case, but, on the contrary, declare it to be sound in logic, sound in law, and sound in natural justice. We are announcing no new principles of law in this case, but are simply reaffirming that which has been well settled and thoroughly accepted for a long -while. The doctrine of waste is almost as old as the law itself. Even where there is an express stipulation in the lease that the tenant should not
To ascertain the rights which went with the lease to the lessee, we turn to the law to seek the definition of what is meant by lease. Upon this subject the law is plain. We cannot turn from this definition to seek aid by recalling the conditions of the country which existed at the time the lease was made. We might do this, if there was a doubtful meaning in the lease; but since its terms are perfectly plain, and since the rights which go with it are accurately measured by the law, since its meaning is defined and certain, we can have no recourse to extraneous matters as the contract is free from doubt. When the legislature authorized this lease, they had the right to stipulate the terms and conditions upon which they would lease the land. Those provisions in the law which require the lessee to pay taxes and give him the right to bring suit were placed there for purposes which the legislature deemed good, and are perfectly consistent with the lease. No person was bound to lease the land; but, if he did, he was bound to take it with such burdens and such rights as was granted by the legislature. Let it be remembered in passing, that the Moss Point Lumber Company bought this timber in April, 1905, and that the Gans case, in 80 Miss., 76 (s.c., 31 South. Rep., 539), was decided in 1902, so that at the time appellant purchased it had full knowledge of the law, and bought this timber, knowing at the time that the court has held such sales to be unlawful.
All objection having been withdrawn as to the manner m which this suit was brought, at the request of counsel ive consider the merits of the case. Let the suggestion of error be sustained., and the former judgment of this court vacated, and the decree of the chancellor affirmed, and the cause remanded, with leave to answer in sixty days after mandate filed.
Concurrence Opinion
oil the second decision delivered the following concurring opinion.
The opinion of the court, read by my Brother IVIayes, is so thoroughly able and so completely exhaustive that' I, desiring not to go over any of the ground he has so fully covered, shall confine myself, in this concurring opinion, to as brief a statement of my views as the great public importance of the question will permit.
At the very outset I wish to concentrate attention upon that which constitutes the crux of this case — the most serious contention of learned counsel for appellant. That precise contention may be thus summarized: The insistence is that the bill avers that the only value that this sixteenth section had was the value of .the timber upon it; that the demurrer admits this to be true; that the lessee must have gotten something of value by the instrument, and if the lessee of a section of land, valuable only for its merchantable timber, cannot cut down, and sell for his own private profit, all the mérchantable timber which may be grown on the land, during the term of -the lease, he gets nothing at all practically, and that that, assuredly, could not have been the intention of the parties; that the opposite construction presents a case of such great hardship that the court ought to hold — presumably, because of’this hardship — that the lessee may so cut and sell, for private profit, all the merchantable timber on the section; that is to say, he may absolutely destroy the sole and only value that the section of land has. This presents fairly and clearly the strongest contention, to my mind, counsel for appellant urge.
Before answering this, let it be specially noted that the lease— the exhibit — controls the averment of the bill, and it is a lease of the land, not the timber merely, and there is no pretense in the lease of a lease of merchantable timber only, or of the land as valuable for the timber only, and, under our decision, the exhibit controls and limits the averment of the bill. But,
I think it can be shown, on principle and authority, that this view is unsound. First, as stated above, no authority is produced to sustain this precise contention; second, how is it on principle and reason ? The trouble with this view is that it is all founded in the notion of the supposed great hardship which will be imposed upon a lessee in a case of this kind if he be not allowed to cut and sell the timber for profit. The question is not one of hardship. The solitary inquiry is, what is the nature of the instrument under which the lessee claims? It has been demonstrated beyond cavil, as it seems to me, by my Brother Mayes, that it is nothing in the world but an ordinary lease .of a sixteenth section for ninety-nine years. A lease has its own peculiar and established incidents and characteristics, crystallized in it and stamped upon it by the law. This instrument leases the land for a fixed and determinate time— ninety-nine years. It calls itself a lease. Its terms show it to be a lease. Nobody ever heard of its being anything but a lease, until the argument in this case by the appellant. It is made under the provisions of Code 1880, § .§ J32, J35, which provide for nothing but a lease. The value of the land is appraised for the term of ninety-nine years — the leasehold value— and that is simply to ascertain a minimum amount for the lease, for less than which it shall not be leased, as provided in
But it is said, both in the view expressed by Judge Campbell and that of my Brother Oali-ioon, that this doctrine may be and is true of tenants for years of “arable lands,” but that it is not true of lands the whole value of which consists in the value of timber growing on the lands. IIow is it possible, let me ask, to draw any such distinction ? If the instrument be a lease, undoubtedly the principle that the lessee cannot destroy the value of the inheritance must apply, whatever may be the subject-matter of the lease. The widest possible range of dealing may be allowed the lessee, the widest usage and freest treatment of the subject matter of the lease, provided, always, that the value of the inheritance in the thing leased shall not receive lasting damage. The lessee knew that this was the law when he took the land. He was charged with a knowledge of that law. He doubtless advised with counsel, or ought to have done so, as to his rights under such lease.
This is demonstrated beyond cavil by the fact that appellant took this lease in April, 1905, three years after the decision in the Gans case, 80 Miss., 76 (s.c., 31 South. Rep., 539), which was decided in March, 1902. The appellant took the lease
The former opinion of the majority of the court expressly stresses the point that, in that early time, timber was so little valued that in many instances it very largely improved the value of a sixteenth section to cut it down and to open the land to cultivation; and for that very reason the legislature, until within» the last ten years, had, as a matter of fact, been
Can any one believe that $835, paid for this leasehold interest for ninety-nine years of this sixteenth section and all the merchántable pine timber on it — 640 acres of land — was ever dreamed of by either lessor or lessee of this land as -being the purchase price of a fee simple of this timber ? Why, certainly not. There certainly would be a hardship, as it seems to me, in holding that the lessee got the right, under this mere lease, to sell, for profit, all the timber, for the obvious reason that he would be selling as fee simple owner what he paid only a small leasehold consideration for. That, indeed, would be a hardship on the beneficiaries of the sixteenth section. . It seems to me to be curious, to be hard, to be unjust to the last degree, that a lessee who paid $835 — a pure leasehold consideration — for leasehold rights for ninety-nine years, in this sixteenth section and the 640 acres in merchantable pine timber thereon, should be allowed to get, not what his instrument calls for, a leasehold interest only, but what his instrument does not call for, the absolute fee simple. Why, why can he possibly get any more right, any larger measure of right, than the actual nature of the instrument he holds under confers ? Whenever it is known, ascertained and settled that this instrument is a lease for ninety-nine years, then this case is settled. He is a lessee for years, charged with the duty of not committing waste to the lasting damage of the inheritance, strictly forbidden by the legislation and the decision under which he holds — the Gans case, decided three years before this lease — to cut and sell for profit
Something has been overlooked in the discussion of this case, in the former opinion of the majority of this court, which to my mind is conclusive of the correctness of the views which I have just been elaborating, as the reason why there has been no legislative authority for the sale of these sixteenth sections until very recently. When our pine timber in south Mississippi and other wood became, within the last ten years, of such fabulous value, intending purchasers, knowing that they could only lease under the law as it then stood, actually applied to the legislature and secured the passage of an act (Act, February 11, 1898; Laws 1898, p. 62, c. 41), section 1 of which is as follows:
“Section 1. Be it enacted by the legislature of the state of Mississippi, that the board of supervisors in counties having control of any sixteenth section of land, or a part of such section or of another section or a part of a section taken in lieu of any sixteenth section, or a part thereof, reserved for the support of township schools, be, and they are hereby authorized and empowered to sell the merchantable pine timber and wood on such lands or to lease said lands for turpentine purposes for a term not exceeding one year.”
Here, then, we have for the first time direct legislative authority for the sale of the identical character of timber involved in this litigation, towit, “merchantable pine timber.” Such
But now, lastly, is there no authority on this identical question putting at rest, definitely and forever, the contention, unsupported by authority, of learned couhsel for appellant ? My Brother Mayes has referred to eleven distinct 'authorities to show -that the length of time for which leases are to run never changes the principles which cover the kind of estate conveyed. I shall now add two authorities, with which his diligent research has furnished me, on the precise, identical proposition, which I call the crux of this case, towit, that, although the price of the timber may be the sole value of the sixteenth section, the’lessee nevertheless is subject to the universal principle, governing estates for years — that he cannot commit waste, and is answerable for the value of trees so cut and so sold for profit, even in that sort of case. The first case is the case of Proffitt v. Henderson, 29 Mo., 325. In that case the precise point which I call the crux of this case was decided. The court said: “There may be
The second case is that of Thurston v. Mustin, Fed. Cas. No. 14,013, where it was very distinctly held by Cranch, C. J\, that a tenant of a lease for ninety-nine years, renewable forever, with leave to purchase the reversion at a stipulated price, is liable to be restrained by injunction from cutting and selling young and green wood, where the wood constitutes the principal value of the land.” The court added: “But it is said that in such a lease, renewable forever, and with a right to purchase the reversion, the relation of landlord and tenant does not exist, inasmuch as it is in the power of the defendant to prevent the plaintiff .and his heirs from ever enjoying the reversion. But, until the defendant has actually purchased the reversion, it remains in the plaintiff, and the relation of landlord and tenant still subsists in full force.”
These two authorities are directly and squarely decisive of the affirmative of the proposition that a lessee for ninety-nine years of a sixteenth section of school land is liable for waste, although the sole value of the sixteenth section consists in the value of the timber upon it, and for the very obvious reason that the principle applies — the universal principle — that such
It is quite true, as stated by my Brother Calhoon, in his very learned and careful examination of the common law as to waste, that this opinion of Judge Cranch holds the statute of Gloucester, inflicting treble damages, applicable in that case, because that statute had been held to be of force in the state of Maryland. That is true; but I do not cite the case for anything it holds with respect to the statute of Gloucester. I cite it solely for the purpose stated above. It holds, as to that, precisely with the Missouri case, and both are direct and conclusive authority on the precise point which I have been thus far dis- . cussing, and these two are the only authorities referred to in the whole discussion touching upon, this identical proposition, except one other, the authority referred to by my Brother Mayes, towit, Davis v. Gilliam, 40 N. C., 308, which holds the same doctrine precisely. That case decides much more than is supposed by Judge Campbell. Its exact holding is clearly pointed out and approved in the Missouri case above referred to, at page 328. The court says “that, as the state of the country now is, a tenant for life of land, entirely wild, might clear as much of it for cultivation as a prudent owner of the fee would, and might sell the timber that grew on that part of the land. Clearing for cultivation, he [Buffin] says, has, according to the decisions, peculiar claims for protection, and a sale of the timber from the fields cleared may be justly made in compensation for clearing and bringing it into cultivation. But it seems altogether unjust that a particular tenant should take off the timber without any adequate compensation to the estate for the loss of it; for he takes, in that case, not the product of the estate arising in his own time, but he takes 'that which nature has been elaborating through ages, being a part of the inheritance itself, and that, too, which imparts to it its chief value.”
I confidently submit, therefore, that this, the strongest contention made by the learned counsel for the appellant, is clearly and incontrovertably resolved against them, first, by a review of the growth of the country, and of the legislation of the state and of its decisions, the Gms case especially, as both have regard to these sixteenth sections; second, on reason and principle; and, third, by these authorities, express adjudications on the precise, identical proposition.
I turn, now, to the opinion of the court on the former hearing. The former opinion of this court reached the conclusion it did upon two independent lines of reasoning — one based upon an investigation of the principles of the common law applicable to waste, and the other based upon an investigation of-legislation in England, and especially in Mississippi, upon that subject. Let us treat these.views separately; and, first, as to the common law. The view of the majority opinion may thus be summarized on this head: It was held that at the ancient common law tenants of those estates which were created by the act of the law were liable to impeachment for waste, but tenants of those estates created by contract of the parties, were not so liable. It was said that a tenant by the curtesy, for example, or in dower, belonged to the former class, and was liable, whereas tenants for life or for years belonged to the latter class, and were not so liable. This all rested upon the solitary dictum' of Lord Ooke, and the fanciful notion for this distinction which he gave was this: That .the law, having created the
“It is frequently said by Lord Coke, in his commentaries, and it was so declared by the King’s Bench, in the Gountess of Shrewsbury’s case, that waste would 'not lie at common law against the lessee for life or years; for the lessor might nave restrained him by covenant or condition. But Mr. Beeves, who was thoroughly read in the ancient English law, insists that the common law provided a remedy against waste by all tenants for life and for years, and that the statute of Gloucester only made the remedy more specific and certain. The provision*545 in the statute of Gloucester, giving by way of penalty, tbe forfeiture of the place wasted and treble damages, was re-enacted in New York, New Jersey and Virginia, and it is the acknowledged rule of recovery in some of the other states in the action of waste. It may be considered as imported by our ancestors, with the whole body of the common and statute law then existing, and applicable to our local circumstances. As far as the provisions of that statute are received as law in this country, the recovery in the action of waste, for waste done or permitted, is the place "wasted and treble damages; but the writ of waste has gone out of use, and a special action on the case, in the nature of waste, is the substitute, and this latter action, which has superseded the common law remedy, relieves the tenant from the penal consequences of waste under the statute of Gloucester. The plaintiff, in this action -upon the case, recovers no more than the actual damages which the premises have sustained.”
. Another of the highest authorities on English common law (Smith, in his Landlord and Tenant), after stating Coke’s view, pronounces it “plausible in theory, but very detrimental in practice,” and adds, at page 249, in regard to voluntary waste: “Indeed, it is obvious to common sense that what the owner of a freehold interest (life estate) is prohibited from doing, a holder of a chattel interest (a lessee for years) must be clearly prohibited frqm.” So far as authorities go, therefore, we have Bracton and Beeves and Kent squarely against Coke, and Smith criticising his notion. See, also, Butler’s note to 3 Coke on Lyttleton, p.' 266, and the authorities there collected.
The true view stated by these authorities, as shown in the quotation from Kent, was that the common law provided a remedy against waste for all tenants for life and for years, and that the statute of Gloucester only made the "remedy more specific and certain.” Kent says again, at star page 78: “It is a general principle that the tenant, without some special
Second. Iiow does Coke’s notion stand the test of principle and reason?
Take an illustration: A becomes a tenant by the curtesy on the death of. his wife — issue capable of inheriting being born-alive — of the manor of Dale. On the very same day he becomes the tenant for life of Blackaere by virtue of a deed or will. Dale and Blackaere lie side by side, and in respect of the soil, and all upon the soil, are identically alike in all respects. According to Coke, the ancient common law made A liable for waste committed on Dale, but not liable for exactly the same sort of waste committed at the same time on Blackaere! Is it possible that the ancient common law — “the perfection of reason” — ever tolerated any such absurd distinction? The distinction is so plainly abhorrent both to reason and principle as to need no discussion, and as to furnish the strongest possible ground for showing Coke’s notion to be unsound. So much for Coke’s curious and fanciful notion, on principle and reason.
I therefore maintain that at the ancient common law, on the authority of Bracton and Beeves and Kent and Smith, a tenant for years was liable for waste, and, further, that he was so liable on principle and reason, and, if he was so liable, even
“The remedy by injunction is fully established, and has not only virtually superseded the old common law ‘action of waste,’ but has to a great extent taken the place of the ‘action on the case’ for damages. An injunction will be granted in all cases where a legal action would lie to recover possession of the land wasted or to recover damages. It will also be granted in many instances where no legal action can be maintained, although the interest of the injured party is legal, and where the estate of the injured party is 'wholly equitable, and where the waste itself is entirely ‘equitable’; that is, where by the terms of the will, deed, settlement, or lease the tenant holds the land ‘without impeachment of waste.’ ”
But it is clearly incorrect for the further reason that, after the ancient writs of estrepement and of waste had become obsolete, even in England, and, of course, in the Hnited States, and had been succeeded, first, by the action on the case, and, in more modern practice still, by the writ of injunction, these last two remedies were applied against tenants for life and for years, getting their estates by contract, just as completely as against all other tenants, who get their estates by law! This is expressly declared to be the law in note 3 to page 225 in Cooley’s Blackstone, vol. 2, supra, and in many other authori
“The common law has been aptly called the ‘lex non scripta/ because it is a rule prescribed by the common consent and agreement of the community as one applicable to its different relations, and capable of preserving the peace, good order, and harmony of society, and rendering unto every one that which of right belongs to him. Its sources are to be found ‘in the usages, habits, manners and customs of a people; its seat in the breast of the judges who are its expositors and expounders. Every nation must of necessity have its common law, let it be called by what name it may-, and it will be simple or complicated in its details, as society is simple or complicated in its relations. A few plain and practical rules will do for a wandering horde of savages; but they must and will be much more extensively ramified when civilization has polished, and commerce and arts and agriculture enriched a nation. The common law of a country will, therefore, never be entirely stationary, but will be modified and extended by analogy, construction and custom, so as to embrace new relations springing up, from time to time, from an amelioration or change of society. The present common law of England is as dissimilar from that of Edward III as is the present state of society. And we apprehend that no one could be found to contend that hundreds of principles, which have in more modern times been examined, argued and determined by the judges, are not principles of the common law, because not found in the books of that period. They are held to be great and immutable principles, which have slumbered in their repositories because the occasion which called for their exposition had not arisen.”
Surely there can be no reasonable doubt of the liability under
Third. What dó we mean by the common law in the United States, including Mississippi ?
Under this head I propose to show that the great principle of the ancient common law, merely redeclared by the statutes of Marlbridge and ■ Gloucester, that tenants for years and for life were liable for waste, as common sense and reason demanded, is a part of the common law of Mississippi. And this is settled by the'highest authority. In Parrott v. Barney et al., Fed Cas. No. 10,773a, Deady, United States District Judge, said:
“It seems that by the ancient common law tenants were not liable to an action for waste, except those who were in by operation of law — as tenant in dower or guardian in chivalry. To protect the inheritance against the waste of tenants in by act of the parties, whether for life or for years, the statute' of Marlbridge was passed. 52 Henry III, c. 23 (year 1267). This statute provided: ‘Also fermors during their terms shall not make waste, sale or exile of house, woods and men, nor of anything belonging to the tenements, that they have to ferm, without special license had by writing of covenant making mention that they may do it; which thing if they do and thereof be convict, they shall yield full damages and shall be punished by americiament.’ 1 Chit. St., pt. 1, 3. This statute proving insufficient, the statute of Gloucester was passed. 6 Edw. I, c. 5 (year 1278). This statute provided: ‘That a man from henceforth shall have a writ of waste in the chancery against him that holdetk by the law of England, or otherwise, for term of life or for term of years or a woman in dower; and he which shall be attained of waste shall loose the thing that he hath wasted, and moreover shall recompence thrice so much as the waste shall be taxed at,’ etc. 1 Chit. St., pt. 2, 1106. These*552 ancient statutes are a part of -the common law, brought to this country by the colonists from England. When the migration to America began, they had been in force in the mother country for four centuries, and were then practically as much a part of the English common law as the oldest traditions of the courts. Com. v. Knowlton, 2 Mass., 534; Sackett v. Sackett, 8 Pick. (Mass.), 314; 4 Kent. Comm., 81.”
I especially ask the profession to read carefully Saclcett v. Saclcett, supra, as an absolutely unanswerable demonstration of the correctness of Judge Deady's view. This opinion of the district judge was reaffirmed by Sawyer, federal circuit judge, in the same case, styled “Case' 10,773,” on appeal to the United States circuit court, and the doctrine of Deady, district judge, and Sawyer, circuit judge, was affirmed on appeal to the United States supreme court, in Parrott v. Wells, 15 Wall. (U. S.), 524, 21 L. Ed., 206. This principle,, therefore, that the statutes of Marlbridge and Gloucester, so far as the general principle of liability of tehants for life and for years for waste is concerned, became crystallized as a part of the common law in all of the United States, is expressly declared to be the true and sound view by the United States supreme court. And the identical doctrine is expressly declared in the 6 Am. & Eng. Ency. of Law, at page 277, in the following words:
“It may be stated as a general rule that English statutes passed before the emigration of our ancestors, in aid or amendment of the common law, applicable to our condition, and not repugnant to our institutions and form of government, constitute a part of our common law" — -and again at pages 271 and 272. The array of authority on this subject is simply overwhelming. At page 259 of Am. & Eng. Ency. of Law it is again said, after a review of the whole subject: “In the United States these statutes are either considered a part of the common law, so far as applicable to the different conditions, or they have been expressly enacted in a modified form” — citing a multitude of authorities.
A fortiori, is it not in the extremest degree unreasonable to hold that Toulmin’s Digest could have meant to say that those statutes were not a part, as to that great principle, of the common law of Mississippi ? The section quoted from that Digest
I desire to add to this, the third, section of my discussion of this subject, what is extremely important to be noted, that, whether the view which I have here advanced, and which I have the utmost confidence in asserting, is the true doctrine on this subject, be the true doctrine or not, is utterly immaterial to the liability of this tenant for ninety-nine years in this case, because that liability is absolutely established by the American modified law of waste, which has been declared to be the Mississippi law of waste in Learned v. Ogden, Barry v. Cannon, and Warren County v. Gans. What I here advance in paragraph 3 adds to and strengthens that view merely; but that view stands incontrovertibly established by what I have said, in this opinion, without reference to the discussion in this paragraph 3. In other words, to phrase it shortly, and to dismiss the subject, if the great principle of liability, merely re-declared in the statutes of Marlbridge and Gloucester as having been the ancient English common law, became a part of the common law of Mississippi, then clearly that consideration alone ends the discussion; but, if Coke’s curious notion
In the fourth place I will consider the practical results from the opposite view.
The reasoning of the majority opinion on the former hearing is this:
(1) At the ancient common law tenants for years were not liable for waste unless a clause making them liable was put in the lease.
(2) The statutes of Marlbridge and Gloucester, for the first time in England, made such tenants liable for waste.
(3) We never adopted the statutes of Marlbridge and Gloucester, even as to the great principle of liability which they announce.
(4) Therefore the only common law of waste that we have is the ancient common law, under which tenants for years are never liable for mere voluntary waste, unless a clause to that effect has been inserted in the lease.
Now, if that be the law in the twentieth century in Mississippi, what follows as the inevitable, direct result? Take an illustration put by counsel:
“A leases to B 640 acres of land, of which 140 are in cultivation, on which have been erected valuable improvements. The balance of the land, we will say, is covered with a fine growth of yellow pine timber. Eor a small annual rental the possession of the estate is delivered to the tenant for year's. No restrictions are placed in the lease as to the commission of waste, either voluntary or permissive, because to do so would be an idle performance; the law implying that the tenant will do no lasting damage to the inheritance, and that he will farm*556 the estate according to the dictates of good husbandry. B, the tenant, learning that the statute of Marlbridge has not been re-enacted in Mississippi, and, on the authority of Jordan v. Roach, that -he is unimpeachable for waste, proceeds, in flagrant disregard of the rights of his landlord, to cut and convert into lumber the timber standing on the 500 acres of land, worth at presentprices about $15,000. He tears down the buildings erected on the premises, destroys orchards, ornamental shrubs and shade trees of one hundred years’ growth, thus bringing utter destruction and ruin upon the estate of the reversioner; and yet we are told by counsel for appellant that the tenant for years is unimpeachable for waste in Mississippi, and the landlord is utterly without remedy, to redress the flagrant violation of his rights by the tenant! To such curious and illogical conclusion does the argument of counsel for appellant lead.” Is it possible that the law can be “the author of such confusion” ? And if, as is inescapably true, the opposite view leads to this conclusion, does it not show conclusively that that view cannot be the law? The common law is said to be “the perfection of reason.” There is no sound reason in the opposite view, as it seems to me.
I now turn to the second ground on which the conclusion of the majority of the court on the former hearing rested, towit:
That on the legislation of Mississippi this tenant got what is called a fee simple for the term, and is not liable; that he has, during his term, “the absolute rights of a fee simple owner for the term of ninety-nine years.” With all deference to the majority opinion, I must frankly confess my utter inability to apprehend, or comprehend, how there can be an estate conveyed by a plain lease for the term of ninety-nine years, which estate, at the same time, vests in such lessee the absolute rights of a fee simple owner for the period of the term! It is said that the case of Davany v. Koon, 15 Miss., 71, gives this sort of lease “and sale for a limited time.” But, when that case is critically examined, it is seen, at once, that this language was
Again, almost the whole argument in the majority opinion on the former hearing, seeking to show that this tenant had, as said, the absolute rights of a fee simple owner for the term of ninety-nine years, is built up on a too narrow and technical construction of the words in the act of 1.833 — “right, title, use, and occupation.” The argument is that that language, in that act of 1833, conferred this character of estate on the lessee under that act. Suppose ijhat is true, as we shall later show it could not possibly have been; how does that at all affect the estate this tenant got under the lease made under the code of 1880, which, concededly, does not contain the words “right, title, use, and occupation” ? If a tenant under a lease for ninety-nine years, made under the act of 1833, did have — as most erroneously argued — the absolute rights of a fee simple owner for the term of ninety-nine years, what has that to do in determining the character of the estate held by this tenant under a totally different statute, to wit, Code 1880, § 732, which does not contain these words, “right, title, use, and occupation ?” Can anything be clearer than,, as said by Judge Campbell, that the whole measure of the estate of this tenant must be de
But, so great is the deference which I feel for my Brother Oalhoon’s very ingenious and very able opinion on the former hearing, marked as it is by careful and profound research into the sources of the common law and by a critical historical ex; amination of the legislation both in England and Mississippi on this subject, that I feel bound to make answer, if I can, to that former opinion touching this review of legislation.
Both the act of congress of 1815 regarding the subject of school lands while Mississippi was a territory, and the act of the Mississippi legislature of 1824, made the tenant expressly liable for cutting trees or timber. This appellant is bound to admit. But learned counsel for appellant seek to avoid the force of this by saying that the act of 1833 repealed the provisions of the act of 1824 with respect to the commission of waste; and they give as a reason that conditions as to what ought to be waste had so greatly changed in the nine years from 1824 to 1833 that the legislature changed the whole system of our laws as to waste. In respept to this it may be said that the historical fact is just the converse. No such tremendous change in the condition of Mississippi occurred in the very short interim of nine years between 1824 and 1833. In the very nature of the case no such marvelous change could have been wrought in so very short a time. But, as a matter' of fact, the act of 1S33 manifestly did not repeal the act of 1824, but was simply amendatory thereof, as is shown at'the end of the act of 1833, as set out in Hutch. Code, sec. 1, act of January 9, 1824,.provided that five trustees in each township should be elected by heads of families -for one year; section 2 provided for a treasurer, and section 3 for schoolhouses and teachers. Section 4 provided as follows:
*559 “The trustees aforesaid shall carefully and faithfully preserve the school lands and timber thereon, from all improper waste; and shall institute suits in any court having competent jurisdiction ag’ainst any person, tenants, as well as others, who may be found damaging, in any manner, the lands, timber or improvements, reserving to tenants the full liberty of their several leases; and any money thence arising shall be appropriated to the same uses as other moneys in the township treasurer’s hands; and the trustees shall, from time to time, on the expiration of the leases already granted, as well as any land not heretofore so let out, rent the whole or any part to the highest bidder, for any term not exceeding five years, public notice having been first given for the space of six weeks before the said lands are to be leased or rented.”
Act February 27, 1833, is entitled “An act to authorize the trustees of the school lands within each township in this state to lease the sixteenth sections within, the same for ninety-nine years, and for other purposes.” Sections 1 and 2 provided that “whenever a majority of the resident heads of families, minors not excepted, in each township or fractional township, containing section number sixteen, or such section as may be reserved for the use of schools in lieu thereof, within, this state, shall request the same, it shall be the duty, of the trustees noiu in office, or who may hereafter be in office, to lease the said section of their respective townships to the highest bidder for the term of ninety-nine years,” etc. Sections 3, 4, 5, 6, and 7 provide other details in the administration of the sixteenth sections, not important to set out. Not one single word is said in the entire act of 1833 about the election of trustees. That had been provided for in section 1 of the act of 1824, as shown above. .The act of 1833 proceeded, therefore, very naturally upon the idea that the trustees were already in existence, and did nothing more than amend the act of 1824 in the respects indicated.
■ The very ancient document offered by learned counsel for appellant — an alleged form of lease prepared by John D. Freeman, then attorney-general of the state, to be used in making leases of sixteenth section lands' — cites the act of 1824 as still in force, showing how the trustees should be elected, and then cites, in the same breath, the act of 1833 as showing for how long, etc., a lease should be made; thus indicating clearly that the learned attorney-general of the state, at that time, held both of these acts to be in force, consistent parts of a harmonious whole. It is very clear, therefore, that the statute
The same doctrine had been previously announced in Swan v. Buck, 40 Miss., 270; Cunningham v. Davis, 62 Miss., 366, and as set forth in 12 Am. & Eng. Ency. Law (1st ed.), 977. See, especially, Berridge v. Glassy, 112 Pa., 442 (3 Alt., 583; 56 Am. Rep., 322), directly in point.
All that is meant by the words “right, title,” etc., in this lease, is simply the “right,” etc., for the term of ninety-nine years. One loses one’s self in a metaphysical fog by straining over the separate, artificial significance of each technical word —“rigiit, title, use, ■ interest, occupation,” etc.- — and shutting out all the other terms of the instrument plainly showing it to be nothing but a lease. The reference of learned counsel for the appellant to the use o.f the’ words “right, title-, claim, and interest” in the act of cession by Georgia” to the United States, to be found in Hutch Code, art. 4, p. 55, c. 1, is most unfortunate. Georgia did not limit‘the term in these sixteenth sections to ninety-nine years. It gives them in perpetuity. These instruments specifically limited the term in each instance to ninety-nine years. There is absolutely no merit in the contention that the act of 1833 conveyed “a determinable fee.”
Counsel for appellant is equally unfortunate in citing the act of 1841 (Hutch. Code, art. 24, p. 221, c. 9). That act provides:
“The lessees of sixteenth sections, and all other school lands, shall be authorized to, and may maintain and carry on, all such suits at law or equity, immediately after the leasing, as they could or might maintain or carry on were they the fee simple owners of the leased premises, except as against the lessors.”
Counsel are also unfortunate in appealing to the act of 1841, known as the revenue act (Hutch. Code, art. II, p. 188, c. 8). That act provides as follows:
“The school lands, known as the sixteenth sections of land in this state, which shall have been leased subsequent to the passage of the revenue act, approved February 24, 1844, shall be subject to taxation during the continuance of the lease, in the same manner and proportion as other lands; provided, in case of the sale of such leased lands, or any part or parcel thereof, for taxes, the title of the lessee or his assignee, only shall be conveyed.”
This provision expressly stipulates that, when a sixteenth section should be sold for taxes, the purchaser should not get the paramount or foundation title, which was still in the lessor, but merely the title — that is to say, the interest — of the lessee or his assignee. The loose use of the wore! “title” will not fail to be noted in this connection. It is used in the same loose sense in which-it was used in the act of 1833. So that, summing up on this branch of the inquiry, it is clear that the lessee of the sixteenth sections, under the act of 1833, got precisely what he has always been understood to have gotten, pre
Pray, what is a determinable fee ? In Anderson’s Law Dictionary it is thus defined: A “base, qualified, or determinable fee, has a qualification subjoined thereto, and terminates whenever the qualification is at an end” — as a grant “to A and his heirs, tenants of the manor of Dale”; that is, as long as they continue tenants. This estate is a fee, because it may endure forever; yet the duration depends upon a circumstance, and this debases the purity of the donation. 2 Bl. Com., 109.
It is said that this is “a determinable fee, terminating upon the expiration of ninety-nine years.” Was ever such a determinable fee heard of? Where is the qualification, or contingency, or uncertainty, upon the happening of which uncertainty or contingency the alleged fee terminates ? Is it possible that the mere expiration of the ninety-nine years can, by any perversion of logic, be tortured into the faintest resemblance to the qualifications subsisting in a determináble fee, or the uncertainty or contingency upon the happening of which such fee ■would terminate ? The very essential characteristic of a lease for years is that its term shall be fixed and definite, and the fixed term of ninety-nine years is precisely what makes it an estate for years and discriminates it sharply from a determinable fee. Let this claim of a determinable fee be passed without further comment.
Finally, under this head, let it be noted that this particular lease was executed under Code 1880, § 132, which is as follows:
“Whenever a majority of the resident heads of families shall petition therefor, the board of supervisors shall appoint three intelligent citizens of the township, to appraise said land, who shall do so, and make oath to such board of the value of the land, and thereupon said board of supervisors shall direct that said lands be leased to the highest bidder for a term of ninety-nine years.”
“Be it enacted by the legislature of the state of Mississippi, that Laws of 1898, ch. 41, sec. 1, be, and the same is’hereby, amended so as to read: That the board of supervisors in counties having control of any sixteenth sections of land, or a part of such sections, or of another section or part of a section taken in lieu of any sixteenth section, or a part thereof, reserved for the support of township schools, be, and they are hereby, authorized and empower to sell the merchantable*566 timber, of any and all varieties, and wood on such land, or to lease for a term not exceeding three years said lands for turpentine, . or pasturage purposes for a term not exceeding one year.”
The original, passed in 1898, authorized the sale of merchantable pine timber and other wood. The amendment of 1901 authorized the sale of the “merchantable timber of any and all varieties, and wood on such land,” and also authorized the leasing for a term not exceeding three years for turpentine purposes, or for pasturage purposes. The original authorized the sale of merchantable pine timber; the amendment, the sale of merchantable timber of any kind'whatever, and then created a new lease, known for the first time in the history of the state — a lease for turpentine purposes.
All this vindicates beyond question the view I hereinbefore expressed — that these leases, until Avithin the last ten years, when southeast Mississippi’s pine timber first came into the market, universally dealt Avith our state as an agricultural state, and not as a mineral or a timber state, and therefore leases, until Avithin the last ten years, were of the soil as being the chief element of value; leases of agricultural lands, as to which both Judge Calhoon and Judge Campbell admit, as I understand them, that Avaste could be committed by tenants for life and for years in Mississippi. No proAÚsion had ever been made, until Avithin the last ten years, for sales of timber, or for leases for turpentine purposes, for the simple reason that the legislature had been dealing with the situation as it existed all along — a situation as pointed out, in Avhich the sixteenth sections were leased because of the value of the lands for agricultural purposes alone. If Avithin the last ten years a new situation has come about, in which, in southeast Mississippi at least, some sixteenth sections are chiefly valuable for the merchantable pine timber standing thereon, the remedy is not to haA>-e the court Avrench the statutes authorizing leases into statutes authorizing wholly different things, sales, but to apply
I add just one concluding thought under this head, as to the legislation on this subject, and that is this: That in view of the fact that this lease was made under Code 1880, § 732, I am wholly unable to see why the majority opinion on the former hearing should have gone into any discussion or review either of legislation in England or of legislation in Mississippi prior to said code of 1880. But because I felt it important, since the majority opinion had gone into that matter, to point out what I deemed to be the clearly erroneous construction of said former legislation in Mississippi, and of the legislation in England, therefore I have written on this subject.
One more inquiry: What has been the course of judicial decision in this state touching this subject of waste?
Eirst, the whole matter has been definitely and conclusively put at rest in this state by the decision of this court in Warren County v. Gans, 80 Miss., 76 (s.c., 31 South. Rep., 539), decided in March, 1902. That case was carefully and thoroughly considered by this court. The arguments addressed to this court at* this time are. the same as those used in the
“While the law of waste, as established in England, is modified in its transportation to this country to suit the conditions of a new and uncleared country, and to allow a tenant for life to open wild lands for necessary cultivation, or to change the course of agriculture, without being liable for waste, yet the cutting down of trees for his mere profit is here, as there, considered waste. A tenant by the curtesy, as an incident to his estate, may take reasonable estovers of all kinds, and he may*569 cut timber to pay taxes or to improve tbe land, and, when so cut it belongs to the tenant and not to the reversioner. But the cutting down by the tenants of trees for sale is waste, and the felling of trees by the tenant or others for a sale of them is an injury to the inheritance, for which, the reversioners have their appropriate action.”
In one word; whatever inflicts lasting damage upon the inheritance is waste in all jurisdictions, here and in England. Of course, where all the timber is cut off and a town built on a sixteenth section, as in the case of the city of Columbus, the inheritance is benefited, and not damaged, and there is no waste in such case. That which benefits the inheritance can never be waste. Such instances present cases of “meliorating waste.” In the very nature of things this must be the only correct rule, and it will be kept in mind, in this connection, that the demurrer admits in this case, that the whole value of the inheritance was being destroyed by the lessee for years. When the demurrer admitted that, it was logically impossible for the appellant to argue here that there was no waste shown in this case. The admission cut from under the appellant the only ground it had to stand on, if it chooses to make that argument. Nor, indeed, do learned counsel for appellant chiefly plant their case on any contention that what was here done was not waste; but they argue alone on the technical proposition that a tenant for years in Mississippi, in the twentieth century, is not liable for waste unless the lease expressly malms him so! There is, indeed, in counsel’s brief, something said about Mississippi having been a wilderness in 1833, her soil covered with an unbroken forest, her population scant, and about timber being at that time, as stated, a burden which it would be a benefit to remove by destroying it in any way, etc.; and it is further stated, in this same loose strain, that consequently the act of 1833, provided for leases of these sixteenth sections, without liability for waste, as being better suited to.the condition of the country at the time, overburdened with timber, etc.; that
A suggestion of great importance is to be made here: That whilst the decision in Jones v. Madison County, as applied to sixteenth sections, embraced in territory acquired by Mississippi from Georgia, announces correctly state policy as to such sixteenth sections embraced in such territory, yet, in that part of Mississippi not acquired from Georgia (and this particular sixteenth section is of that sort, since it lies south of the thirty-first parallel, which marked the southern limit of the Georgia cession), the policy of the federal government -in dealing with these sixteenth sections is a matter of vital importance. Congress, in the Ordinance of 1787 (article 3), provided: “Religion, morality and knowledge being necessary to good government, and the happiness of mankind, schools and the means of education shall forever be encouraged.” It was in pursuance of the purpose thus declared, this enlightened public policy, that sixteenth sections, all over most of the United States, have been set apart as a sacred trust fund to be perpetually maintained
And finally, on this point, let the principle be given all the emphasis the high character of the provision carries with it, written- — as it is — above legislative reach, in the organic law of the land, towit, the principle declared in section 211 of the constitution of 1890, which provides that there shall never be a sale of the sixteenth section lands, in the following language:
“The legislature shall enact such laws as may be necessary "to ascertain the true condition of the title to the sixteenth section lands in this state, or land granted in lieu thereof, in the Choctaw purpose, and shall provide that the sixteenth section lands reserved for the support of township schools shall not be sold, nor shall they be leased for a longer term then ten years for a gross sum; but the legislature may provide for the lease of any of said lands for a term not exceeding twenty-five years for a ground rental, payable annually; and, in case of uncleared lands, may lease them for such short term as may be deemed proper in consideration of the improvement thereof, with right thereafter to lease for a term or to hold on payment of ground rent.”
Goncluding Observations — Very great emphasis is put repeatedly, in the opinion of the majority of the court on the former hearing, upon-the fact that Lord Coke, the great common law judge, announces the view of the ancient common law contended for by the majority. Names count for little with me. Mansfield was as great as Coke, if not greater; and yet who, that has ever read the magnificent argument of Kaymond in the case of White v. Wagner, 4 Har. & J. (Md.), at pp. 375-379 (7 Am. Dec., 674), ever had any doubt left of the woeful errors into which that great judge, Lord Mansfield, fell in dealing with this same subject of waste at the common Taw? All judges are fallible, all live under the possible applicability to themselves, however great they may be, of' the line, "Bonus Homerus aliquando dormitat.” If Jove nods, so does Coke.
Dissenting Opinion
dissent on second decision.
on the second decision of the case, delivered the following dissenting opinion.
It would be pleasant to concur with the majority, but not possible, since the people, whom each of the court represents, is entitled, in great public questions, to the judgment of the minority member of the court. The reasons for -my position are stated in the views of the then majority of this court in the opinion heretofore rendered in this same cause, to be published. It remains now, on this suggestion of error, only to group them and leave conclusions to an able and upright profession.
I have now nothing left, except as mourner at ivhat I conceive to be the funeral of the honor of a great state. I am profoundly impressed with this view, notwithstanding I was a member of the court which decided Warren County v. Gans, 80 Miss., 80 (s.c., 31 South. Rep., 539). Observe, however, for what it is worth, that in that case the opinion said: “The
When does impeachment for waste begin? When does it end ? How often may it spring up in the meantime ? What is the standard of damages? If the timber reproduces itself, is there a new right of action? If the timber be destroyed, and the whole of the section be put in cultivation, and worth, therefore, ten times more, as is often the case in Mississippi, how then ? If built up in fine brick structures, as is here and there the case in this state, how then? Shall the uniform action of seventy years, based on the universal popular construction, go for naught ? In view of long usage and public understanding, and of the fact that the w'hole country was forest, as here, and that there are six hundred and fifty sixteenth sections in the state, generally subdivided into small parcels, I cannot think that the subtenant is liable in damages for every load of wood he hauls to town for sale. When it is seen that the act of 1818 prescribes no form of lease, but specifies that the justices of the county court may lease for not more that three years and shall protect the lands “against improper waste of soil and timber”; when it is seen that no tenants could be had, in this then wilderness of timber under that statute; when it is seen that the act of 1824 prescribes no form of lease, but specifies that the trustees may lease for not longer than five years and “shall carefully and faithfully preserve the school lands and timber thereon from all improper waste,” and provided for suits for waste; when it is seen that no tenant could be had under that, in this then wilder
There is no occasion, really, to resort at all to the common law. If there was, three distinct utterances of Lord Coke, the opinions of the greatest of the judges, and the views of the most eminent of the writers on Landlord and Tenant and Heal Estate law, cited in the former opinion of this court, ought to be reasonably satisfactory in support of common honesty. Inasmuch as the act of 1833 distinctly directs the trustees to “convey the right, title, use, and occupation of sixteenth sections
Recovery for waste in this case would be in the face of the law taxing the fee instead of the lease, against the lessee, and giving the lessee the right to sue for and recover, and pocket, damages for waste. The whole tenor of all the statutes shows the legislative idea that these leases gave fee simple rights for the term. As instanced in the debate, if there was a lease in the Dismal Swamp, in the statutory terms, even without legislative and popular interpretation, could a court hold that the lessee could not cut trees ? In the numerous acts of our legislature, special for counties, before and since 1833, many do and many do not provide against waste, thus recognizing the common law. Entirely different principles control as to leases of cultivated farms. As to them, the common law, as applicable to Mississippi and her conditions, is to be known by the interpretation of custom and legislative action throughout the history of the state, and this principle should be applied here. Any effort to assimilate these sixteenth section leases to sales for homesteads is a boomerang* Leases of these sections are open to the bids of all comers. Homestead sales are for the specific purpose of homes, and for homes only. Where the meaning of a contract is not plain from its terms, the construction derivable from continuous general public usage is conclusive. It is believed that no case can be found in contradiction of this doctrine. Especially must it be true in arriving at the intent of-parties contracting in good faith and in reliance on the universal understanding of the state and people. Warren Co. v.
Calling attention again to the concrete case this court has in hand, it will be noted that the bill of appellee, the board of supervisors of Harrison county, itself says: “That said land, by reason of the character of the soil, is unfit for cultivation, and that the only value it possesses is given it by the merchantable pine timber growing thereon.” The same bill shows that the lessee paid $835 for the lease. So we have, on appellee’s contention, the purchase of the lease, the money paid and gone forever to the public, for absolutely nothing, and yet the lessee is bound to pay the taxes for ninety-nine years on the full value of the timber which he cannot use! ■ Consideration of these admitted facts makes to mv mind the grotesque absurdity of appellee’s contention glaringly apparent, and makes the public disgrace of compliance with it painfully manifest. The ultimate effect of public injustice is public injury. “He respiteth, •but suffercth not to escape.” The result of the appellee’s contention is that, though appellant' paid $835 in cash, the appraised value, for absolutely worthless land, yet he must pay
Nothing said in the original opinion, or the original concurring opinion by Judge Truly, or in this present opinion, holds that there is no remedy in case of malicious waste. What is held, and what I stand by, is that neither under the statute of 1833 nor the code of 1880 is waste, as ordinarily known in the books, punishable. If the land is worthless, except for its timber, it may be stripped of its merchantable timber for sale and profit. If it is suitable for • cultivation, it may be entirely cleared for cultivation, and this often largely increases its value.' In short, the tenant owns the fee for the term for every purpose of every action done in good faith for his profit. Homestead acts have no pertinency. The original opinion discusses the question through the whole history of legislation, from the act of 1818 up to and including the code of 1880; the purpose being to treat this grave public question on all leases of all dates.
I do not think that the fact of the lease gbing as an asset to the administrator, as chattels do, prevents the construction of the contract -to be that the lessee took with fee-simple rights in the use of the property by him, or those to whom it might go in the course of the administration of his estate. A lease with the right of a fee-simple owner may be provided by. contract,' whether it be for one or more years, and I think such rights went to the lessee under the statutes of 1833 and 1880. The particular words of the léase are of no sort of moment, as all know that the statute, and not the scrivener, makes the instrument. A prudent owner of the absolute fee would have cut the merchantable timber. I think a lease for any length of time of a forest, in the statutory terms or on statutory power, where the lands are valueless, would carry the right to cut the merchant
/ After the whole substance of this opinion was written, for use in chief or as dissent, as the ease might be, I thought the public, in so important a matter, should have all the light obtainable. Accordingly, with the full concurrence of Judge Mayes, who was then considering the record, I sent a note to Judge J. A. P. Campbell, the Nestor and the Ajax of Mississippi jurists, requesting his views, which he was kind and patriotic enough to give, and which are as follows:
“The lease was under the code of 1880, which contains a complete set of rules for the sixteenth sections, and their disposition and proceeds, and superseded all former legislation on the subject, except as contained in it. Whatever may be true as to the act of 1833 in reference to its effect on the act of 1821, it is certain that after the code of 1880 no former legislation on the subject of sixteenth sections was in- force. The. question is: What right did a lessee of a sixteenth section under the code of 1880 acquire ? Although by ancient common law only tenants in chivalry, do.wer, and curtesy were liable for waste (none of which tenants we have), and the statutes of Marl-bridge and -Gloucester are not of force here as statutes,. I assume that we have a law of waste, in the breast of the judges, to be declared and ajoplied by the courts, and that,, when a lessee is exercising rights he. claims, but has not, to the injury of' the fee,- the court will interpose and apply- a remedy. In England the law of waste varies in different counties, because of varying conditions and customs among the people. Wlrat is consid*583 ered waste in one is not in another. Why is not that true in our state, which has regions widely different by nature, in soil, growth, climate, and pursuits of the inhabitants? Both the terms and purposes of a lease are to be considered in determining the right of the lessee. Heil v. Strong, 44 Pa., 264. Here the statutes contain the terms of the lease. By it the land was to be appraised, and the land was to be leased for ninety-nine years. No distinction is made between the term and the fee, but the right of the best bidder was that of a lessee for ninety-nine years. It must be that he acquired the right to- make such use of it, and all constituting part of it, as it was capable of, adapted to, and suitable for. He could make such use of it, surely, as was the customary and approved use of like lands in the region in which it lay. He could not sell it, except for his unexpired term. He would have no right to destroy it, if he pould; but he has the right to occupy it, and use it, and make profit of it, by devoting it to the purposes to which such land was devoted by the custom of the country, and for which alone it was suitable. If it was suitable for agriculture, he could convert it into a plantation. If it was a lake, valuable for water and fish, etc., he could make use of it, but would have no right to destroy it, by draining or otherwise. If it was fit only for the trees growing on it, he had the right to fell and dispose of them for his own profit, if that was the customary use made of it, or for which alone it was suitable. He got that, or nothing, if that was all the land was adapted to. Such must have been the understanding of the lawmakers and of all the actors in the making of the lease. It is not for the courts to undertake to correct what they may now think was improvident legislation a quarter of a century ago.
• “When the law for leasing was passed, a large part of the lands of the state were at very low value. The pine lands of southeast Mississippi were considered of little value-. There were many thousands of acres of land held by the United States and offered for sale at $1.25 per acre. The act of 1880 safeguarded*584 tbe value by requiring appraisement of tbe land and forbidding a lease for less than the appraised value. In this case it is reasonably certain that the appraisement was $1.25 per acre, the price of government lands, and the lease was.for a little more. It cannot be doubted that the universal popular understanding was that the lessee got the right to appropriate all the timber during his lease. The only factors of value were the trees. It is important to remember that this is not 'the care of arable lands, but of those whose whole value consisted in the pine trees; nor is it a case of lands part of which are arable, as in a case (40 N. C., 308) in which Ruffin, C. J., discussed the doctrine of waste. It certainly was intended by the law, and by all the actors, that the lessee should get the right to use the land for his own profit, according to its nature and capability. If valuable only for timber, he must have the right to use the timber; and, if any, what limit can be placed on his right? I see none, except to confine him to the trees which became merchantable during the term! The inquiry is: What right did the law contemplate to be conferred on the lessee? That is determinable by many pertinent considerations, which suggest themselves, and which I need not enumerate.”
This recited opinion shows the comprehensiveness, force, and condensation which alwáys characterizes Judge Campbell. I request particular attention of inquirers to the whole case of Davis v. Gilliam, 40 N. C., 308, cited in it, and quoted from in the opinion in chief on this suggestion of error. It falls among those decisions classified in my original opinion. Carefully read, it supports my view, as I think. I desire to say, also, that cutting merchantable timber is no hurt to a forest in ninety-nine years. If the cutting was of the younger growing trees, there might be a question here, perhaps. But the' cutting of merchantable timber, the land being useless for cultivation, as here, or, in cases where the land is cultivable, an entire clearing for cultivation, cannot be waste under our sixteenth section statutes. See Judge Buppin^s opinion in Davis
It is not to be seen what chapters 40 and 41, p. 62, of the Acts of 1898, or the Constitution of 1890, have to do .with the contract in this.case, which was made in 1882. They deal with lands not then under lease, changing the terms and character of future leases, and authorizing sales of timber and leases for turpentine purposes. In this the legislature acted very wisely, on the greatly increasing value of timber at that time becoming apparent. But it did not attempt to, and could not, affect precedent contracts. It is too plain to argue that- section 211 of the constitution of Mississippi supports my view, in that it provides in the then future that the leases shall be for shorter terms, and says: “In case of uncleared lands,” etc., “may lease them for such short term as may be deemed proper in consideration .of the improvement thereofSuch great men as Harris, George, Simrall, and others knew what the precedent law meant. They had no idea of interfering, if they could, with previous contracts or jarring the public integrity. Judge Simrall delivered the opinion in Davany v. Koon, in 18Y1, nineteen years before.
Why Sackett v. Sackett, 8 Pick. (Mass.), 309, is cited, is not easily seen, since it shows that the statute of Gloucester wasexpressely adopted as law by Massachusettts. "Ex uno disce omnes.” Profit v. Henderson, 29 Mo., 325, was a life estate imder a will, recognizes the right to clear for cultivation, sheds no light on our statutes, or public leases where there can be no cultivation, and is silent ás to whether, in such case, it could be waste to cut merchantable timber, but really implies that it would not. It. is no help to appellee. U. S. v. Bostwick, 94 U. S., 53 (24 L. ed., 65), was a lease of a house by the month, and its destruction by fire, and simply announces, what is held
I cannot give my feeble sanction to the contention of appellee to support the idea that the statute, when it says “convey the title,” does not mean it to the innocent lessee, or that, when it says, “shall appraise the value of the land,” it does not mean “land” to the innocent lessee, or that Judge Simralu, in Davany. v. Koon, 45 Miss., 75, was talking loosely when he said the board was “authorized by law-to sell for a limited time the school lands.” He only said what everybody then thought was true. Neither can I assent to the idea that, in appraising the value of the land and leasing with that as a minimum, it was all a mere farce, and nothing in fact leased for the money paid, and yet the unfortunate lessee was to pay taxes on it for ninety-nine years. No case in law or morals approves this. No decision sustains a construction which makes the statutes mean the precise opposite of what they say.
Afterwards, following the second decision of the case, the appellants’ solicitors,- ' »
Ford & White, and Green & Green, filed a suggestion of error, but- the court overruled the same, the majority opinion being an oral one, b;ut
Dissenting Opinion
delivered the following opinion, dissenting from the decree overruling the suggestion of error:
My view is that the majority opinion is in violation of the contract clauses of both state and federal constitutions. The purchaser here bought the lease:
(1) In the light of the interpretation by the public understanding and usage of seventy years.
(2) In the light of Davany v. Koon, 45 Miss., 71, holding these leases to be sales for the term.
(3) In the light of Bond v. Griffin, 74 Miss., 599 (s.c., 22 South., 187), holding, in a lease the same as this, that the lessee owned the timber, and could himself and for himself recover its value from a trespasser.
(4) In the light of State v. Fitzgerald, 76 Miss., 502 (s.c., 24 South., 872), holding that the purchaser from the lessee could bring replevin for the timber removed from the land.
(5) In the light of the very terms of the authorized lease in the act of 1883.
(6) In the light of Revised Code 1880, § 494, taxing the lessee the value of the land, under which code this lease was made (secs. 732 — 735).
(7) And in the light of the other matters set forth in the original and concurring opinions in this case, and in my dissent from the last announcement.
Under these circumstances the purchaser should be protected by every rule of right and every decision on the subject.
