29 Mo. 325 | Mo. | 1860
delivered the opinion of the court.
Waste is defined to be the destruction of such things on the land by a tenant for life or years as are not included in its temporary profits. In other words, it consists in such acts as tend to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance. (1 Hill, on Real Prop. 261.) The American doctrine on the subject of waste, observes Chancellor Kent, is somewhat varied from the English law, and is more enlarged and better accommodated to the circumstances of a new and growing country. In England the destruction of timber carries with it the idea of a permanent injury to the estate, as timber is scarce, and forest trees are planted for useful as well as ornamental purposes, and are too valuable to permit the timber to be unnecessarily destroyed. It is not waste in this country to convert arable land into meadow, nor vice versa ; nor is it waste to clear land by a tenant for life. But there is a due and reasonable medium to be' observed according to the custom of farmers. To cut down all the timber on a tract of land and sell it would be waste because it would be detrimental to the inheritance. (McCullough v. Irvine’s Ex’rs, 1 Har
In Davis v. Gillman, 5 Ired. Eq. 311, the doctrine is stated by Chief Justice Ruffin thus: 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 says, has, according to the decisions, peculiar claims for protection, and a sale of the timber from the field 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.
The rule of pleading in such actions as this, is that if the plaintiff declare as reversioner for an injury done to his reversion, the declaration must allege it to have been done to the damage of his reversion, or must state an injury of such a permanent nature as to be necessarily injurious to his reversion. (Jackson v. Peshed, 1 M. & S. 221; Potts v. Clark, 1 Spencer, 542; 2 Dutcher, 266.) Are the acts complained of as wrongful of such a nature as necessarily to result in an injury to the reversionary interest ? The petition charges that the defendant cut down and carried away all the valuable rail timber, and that the value of the timber so carried away is three hundred dollars, and that the land in consequence thereof is diminished in value to the amount of sis hundred dollars.
It is objected that the petition fails to show that the cutting of the timber was not necessary to the profitable enjoy