Brugh v. Denman , 38 Ind. App. 486 ( 1906 )

Robinson, C. J.

The questions presented by this appeal are the relative rights of a life tenant and the owner of the fee of the same land in respect to growing timber.

The court found substantially the following facts: Appellee by the last will of her husband was given a life estate in 180 acres of land all in one body and constituting one farm, which was the home of the husband and appellee at the time of his death and since his death appellee has been in possession. By the will appellant Brugh, a daughter, became the owner in fee of forty acres of the land. This tract of forty acres is inclosed, with a cross-fence dividing it, and a tract of about twelves acres is timber, consisting principally of oak, ash, maple and bass wood. Prior to December 12, 1904, appellant Brugh sold the saw timber on the land, for prices named, and intended to cut and remove enough to pay a debt of $225 owing to appellee, and declared her intention to sell all the declining saw timber and enough timber to pay the above note, but was notified by appellee not to cut any of the timber; but on the above date appellant Brugh, by her agents, cut seven growing trees into logs. At the time suit was brought the fences were in need of repair, appellee having permitted them to become out of repair. The saw timber was worth from $325 to $350, and there was enough other timber to make 250 to 300 fence posts. Of the forty-seven trees of saw timber about half were “on the decline.” The “declining timber” and the greater part of all the timber will be needed in making repairs during the life estate, and if appellants carry out their intention and remove the timber there will not be sufficient timber left to make needed repairs. Eemoving the timber will lessen the value of appellee’s interest and work to her a permanent injury.

1. At common law the life tenant, as a compensation for the duty of keeping the premises in repair, had the right to cut timbéí for úse upon tbe land, for tbe repair of buildings, for fuel, for bouse-bote, and for tbe erection and maintenance of hedges and fences.

2. If the tenant exceeded the amount necessary for these purposes he was deemed guilty of waste and liable to the reversioner for damages. 2 Blackstone’s Comm., *35; 1 Wash-burn, Eeal Prop. (4th ed.), 128; Coke’s Littleton, 41b. If the waste was already committed the tenant was liable to an action at law for damages, and by statute in England treble damages might be awarded and the land wasted forfeited to the reversioner. If the waste was only, threatened the equitable remedy by injunction was given, and this remedy would be given in any case where irreparable injury was feared. 1 Washburn,' Keal Prop. (4th ed.), 155, 156; Tiedeman, Eeal Prop. (2d ed.), §81.

3. But waste is defined to be “a spoil or destruction, not arising from an act of God, or of a public enemy, in houses, gardens, trees, lands, or other corporeal hereditaments, to the disherison of him who has the 'immediate remainder or reversion in fee simple, or in. England in fee tail. The three general heads of waste,, therefore, are in houses, in timber and in lands; although,, whatever else tends to the destruction or to the depreciation, of the value .of the inheritance is likewise waste.” 2 Minor’s: Inst. (3d ed.), 598. See 2 Blackstone’s Comm., *281. So> that at common law waste could be committed only by a. person in possession and not having the inheritance, the; absolute owner being incapable of committing waste.

4. However, appellee is in possession of the land as life tenant. The act of appellant Brugh in going upon the land for the purpose of cutting the timber was a trespass. The court found as a fact that practically all the timber would be needed in making repairs on the premises. It is true appellee had permitted the fences to become out of repair, but the appellant Brugh was not endeavoring to nse any of the timber for making repairs. If the timber is needed to make repairs appellee as life tenant is entitled to it for that purpose. It is found as a fact that removing the timber would lessen the value of her interest and would work a permanent injury.

5. It is not necessary that irreparable injury should be threatened before equity will grant relief by injunction. That the party will suffer great injury is enough. In 4 Pomeroy, Eq. Jurisp. (3d ed.), §1357, it is said: “A remedy which prevents a threatened wrong is in its essential nature better than a remedy which permits the wrong to be done, and then attempts to pay for it by the pecuniary damages which the jury may assess.” See Watson v. Sutherland (1866), 5 Wall. 74, 18 L. Ed. 580; Hart v. Hildebrandt (1903), 30 Ind. App. 415; Thatcher v. Humble (1879), 67 Ind. 444; Chappell v. Jasper County, etc., Gas Co. (1903), 31 Ind. App. 170; Champ v. Kendrick (1892), 130 Ind. 549; Xenia Real Estate Co. v. Macy (1897), 147 Ind. 568; Bishop v. Moorman (1884), 98 Ind. 1, 49 Am. Rep. 731.

As the cutting of the timber was wrongful we fail to see how appellant Brugh can be permitted to take advantage of her own wrong and claim the timber that she had cut before the suit was brought. What disposition, as between the life tenant and the reversioner, should be made of timber that is deteriorating in quality and value, but not needed to make repairs, is not presented by this appeal, as the court Ends that practically all the timber will be needed by the life tenant in making repairs.

Judgment affirmed,