Lee & Bradshaw v. Rogers , 151 Ga. 838 ( 1921 )

Atkinson, J.

1. Under a proper construction of the judgment granting the interlocutory injunction, the trial judge did not consider the conflict of evidence, but, viewing the evidence in its most favorable light for the defendants, decided as a matter of law that they did not have the right, as lessees of the life-tenant whose term had not expired, to work the trees growing upon the land for turpentine purposes. Under one phase of the conflicting evidence, the trees growing upon the land were being worked for turpentine purposes under leases executed by the testator at the time the will was executed and at the time of his death; and the manner in which the defendants are now working the trees for such purposes is less injurious to the trees than was the manner of operating under the old process which was in vogue during the life of the testator, and is not destructive of the trees. Under these circumstances, the correctness of the judgment involves two questions of law which it is proper to decide, both of which are controlling. First, has a tenant holding under a devise of land “ during widowhood ” the right to use the land and pine trees growing thereon, by hacking and otherwise working the trees for turpentine purposes, as against a person entitled in reversion, where prior to his death the testator used the land and trees for such purposes ? Second, conceding that the land was not being so used by the testator, is the working by such tenant for turpentine purposes (which consists in cutting-series of streaks on the body of the tree extending through the bark, in such manner as to make one exposed surface or more according to the size of the tree and causing the crude gum to exude at such exposed surface and deposit in metal cups attached to the tree, from which it is collected and' carried away to be distilled and sold), so injurious to the tree that such use must be held, as a matter of law, to be waste as against a person entitled in reversion ? It is declared in the Civil Code, § 3684, that estates for widowhood are subject to the same rules as life-estates. Among the rules applicable to life-estates are the provisions of the Civil Code, § 3666, which is as follows: “ The tenant for life is entitled to the full use and enjoyment of the property, so that in such use he exercises the ordinary care of a prudent man for its preservation and protection, and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. For the want of such care, and the . willful commission of such acts, he forfeits his interest to the remainderman, if he elects to claim immediate possession.” This law was included in the Code of 1863 (§ 2235), which was regularly adopted by the legislature, and also included in the several subsequent codes, some of which have likewise been adopted by the legislature; and consequently it has all the binding effect of a statute. Central of Georgia Ry. Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518). This code section was construed in Woodward v. Gates, 38 Ga. 205, where it was said (p. 213) : “This section of the Code declares that the tenant-for-life is entitled to the full use and enjoyment of the property, so that, in such use, he exercises the ordinary care of a prudent man for its preservation and protection, and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. In determining what amounts to waste, regard' must bo had to the condition of the premises, and the inquiry should be, did good husbandry, considered with reference to the custom of the country, require the felling of the trees, and were the acts such as a judicious, prudent owner of the inheritance would have committed ? ” Again, in Roby v. Newton, 121 Ga. 679, 682 (49 S. E. 694, 68 L. R. A. 601), it was said: “ While the section of the code does not use the terms ‘ permissive waste ’ or ‘ voluntary waste/ or the term ‘ waste ’ at all, still an analysis of that sectiotr will indicate that its author had in mind the distinction between the two classes of waste. It imposes upon the life-tenant the duty of exercising the ordinary care of a prudent man for the preservation and protection of the estate, and the failure to do this is permissive waste; and it also prohibits the commission of any act tending to the permanent injury of the person entitled in remainder or reversion, and the commission of such acts is voluntary waste.” And in Belt v. Simkins, 113 Ga. 894, 896 (39 S. E. 430), it was held that: “ A tenant for life who holds the estate without impeachment for waste is not liable at law to a remainder-man for waste committed, though he may be restrained by a court of equity, at the instance of a remainderman, from committing further acts of waste in the future which are destructive of the inheritance, or are of a wanton and malicious nature.” In the course of the opinion it was said: “ One who creates a life-estate for the benefit of another, either by will or by deed, may, if he sees proper, provide that the tenant .for life shall not be held liable for waste. Such a tenant is characterized as a tenant for life who holds without impeachment for waste. No matter what may be the character of the waste committed, no one interested in the property has a right to call such a tenant into a court of law on account of his conduct. If a particular tenant exercises this power in an uneonscientious manner, a court of equity may interfere to restrain him, and a waste committed by such a tenant which would be enjoined by a court of equity is called equitable waste; but a life-tenant who holds the estate without impeachment for waste is not liable for acts of waste except those which are destructive of the inheritance or wanton and malicious in their character. Bisp. Prin. Eq. § 434; 28 Am. & Eng. Ene. L. (1st ed.) 864; 12 Enc. Laws of Eng. 536; Dickinson v. Jones, 36 Ga. 105.”

In applying this statute regard must be had for the provisions of the instrument creating the life-estate and the nature of the property in which the life-estate was given, and the use to which it was put at the time the will was executed and when it went into effect. If a testator, having nothing but a turpentine farm which was a going concern, bequeathed that to his wife during widowhood, it could hardly be said that the testator intended that she should take nothing under the will; yet that would be the effect if the trees on the farm could not be worked at all for turpentine purposes. The trees constituted a part of the realty (North Georgia Co. v. Bebee, 128 Ga. 563, 57 S. E. 873), but not more than minerals in the land. By the great weight of authority, in other jurisdictions a tenant for life may remove for his own profit minerals from mines which were open at the time the life-estate was created. By analogy the same rule has been applied when the life interest related to timber estates. In Bartlett v. Pickering, 113 Maine, 96, 99 (92 Atl. 1008), it was said: “It is undoubtedly true that the general rule is that trees cut and sold are treated as principal and not as income, and that a life-tenant is guilty of waste in cutting trees. But we think this rule is not' applicable to trees on ‘ wild land ’ so called in this State, which is kept and held merely for the produce of salable timber. These lands are held for income-producing purposes, and the only income derivable from them ordinarily comes from the cutting and sale of marketable timber trees. The bequest of the income of the trust estate in this case, consisting, as it did, in considerable part of timber-lands, contemplated, we think, that the income should be obtained from the cutting of trees, or the sale of the stumpage rights. See Drown v. Smith, 52 Maine, 141; McNichol v. Eaton, 77 Maine, 246; Honywood v. Honywood, L. R. 18 Eq. Cas. 306. A similar rule has been applied to the rights of life-tenants in analogous cases of iron, coal, oil and gas mines, opened in the lifetime of the testator, even when the exercise of the right might in time exhaust the mine, and practically destroy the estate of the remainderman. Gaines v. Green Pond Iron Min. Co., 33 N. J. Eq. 603; Sayers v. Hoskinson, 110 Pa. St. 473 [1 Atl. 308]; Koen v. Bartlett, 41 W. Va. 559 [23 S. E. 664, 31 L. R. A. 128, 56 Am. St. R. 884].” See also, on the subject, Dashwood v. Magniac, 64 Law Times New Series, 99; Poole v. Union Trust Co. 191 Mich. 162 (157 N. W. 430, Ann. Cas. 1918E, 622); Rutherford v. Wilson, 95 Ark. 246 (129 S. W. 534, 37 L. R. A. (N. S.) 763) ; Swayne v. Lone Acre Oil Co., 98 Tex. 597 (86 S. W. 740 (69 L. R. A. 986, 8 Ann. Cas. 1117); Phillips v. Smith, 14 Mees. & W. 589; 21 C. J. 951, notes 64, 65; Ballentine v. Povner, 3 N. C. 130; Beam v. Woolridge, 3 Pa. County Court Reports, 17; Williard v. Williard, 56 Pa. St. 119, 128. In the report of the last-cited case, it was said: “ In considering the question of waste by a life-tenant, respect must be had to the nature of the property. Here the evidence proves clearly that the tract was bought by Jacob and John as timber land, that this was its chief value, and that they were both engaged in cutting and rafting timber from it. The timber was the intended source of profit, and the parties treated it accordingly. It is difficult to draw a distinction in this respect between profits actually drawn by the owner from the timber where it is the source of profit, and profits- drawn from opened mines. Timber is no more a fixed part of the realty than coal or other minerals, and yet a life-tenant may mine without limit from opened mines.” In North Carolina the same principle has been applied where dower was set apart to a widow in lands on which the trees were being worked for turpentine purposes at the time of the decedent’s death. Carr v. Carr, 20 N. C. 317. From the standpoint of the evidence tending to show that at the time the will was executed, and at the time of the death of the testator, the wooded lands of the testator were being worked for turpentine purposes, the widow would be entitled; under the devise, to work the land for such purpose during her widowhood.

2. If the lands were not so worked for turpentine purposes by the testator so as to bring the case within the principle above discussed, it would nevertheless be a question for the jury, under the conflicting evidence, to say whether the working of the trees was such a permanent injury to them as was beyond the rights of -the defendants as lessees of the widow during the existence of her term. In a somewhat similar case it was said in Drake v. Wigle, 24 Upper Can. C. P. 405: “ It is a question of fact for a jury, what extent of wood may be cut down in such cases, without exposing the party to the charge of waste.” Again it was said in Campbell v. Shields, 44 Upper Can. Q. B. 449: “It is a question for the jury whether the tapping of trees for sugar making has the effect of destroying the trees, or of shortening their life, or injuring them for timber purposes.” In the recent case of Gleaton v. Aultman, 150 Ga. 768 (105 S. E. 445), being a suit by remaindermen to enjoin the lessees of a life-tenant from working the trees for turpentine purposes, it .was held that the judge did not abuse his discretion in granting an interlocutory injunction. This was an implied ruling that the question of injury to the trees was one of fact. It follows that the judge erred in holding, as matter of law, that the plaintiffs were entitled to an injunction.

Judgment reversed.

All the Justices concur.