Bennett v. Danville , 1875 N.H. LEXIS 32 ( 1875 )

FROM ROCKINGHAM CIRCUIT COURT. From the cases of Delapole v. Delapole, 17 Ves. 150, Bewick v. Whitfield, 3 P. Wms. 267, Tooker v. Annesley, 5 Sim. 235, Hussey v. Hussey, 5 Madd. 44, cited in Tooker v. Annesley, and Waldo v. Waldo, 7 Sim. 261, I infer that it is an ordinary exercise of the powers of a court of chancery to order timber trees to be cut. The vice-chancellor, Sir LAUNCELOT SHADWELL, in Tooker v. Annesley, said, — "I apprehend that the principle upon which the court acts in directing timber to be cut, in cases like the present, is not the personal benefit of the parties, but the benefit of the estate itself — the inheritance."

In this country, where it so often occurs that it is necessary to cut off the wood and timber in order to make the land fit for cultivation, it may be that the inquiry before the master would take a somewhat wider range than in the English practice. In Chase v. Hazelton, 7 N.H. 171, it was held that clearing land, which the jury finds to be bad husbandry, is waste; from which I infer that by the law of New Hampshire the clearing of land may be necessary as a part of good husbandry, and for the benefit of the inheritance.

The matter should be referred to a master to report whether any of the trees, either from their situation in regard to other trees, or from their being decayed, ought, for the benefit of the estate, to be cut. I think, also, that it would be within the spirit of the cases to extend the inquiry in this country to the point, whether, for the sake of fitting the land for cultivation, the benefit of the estate requires it to be cut.

If it should turn out that, on the report of the master, there should be all order by which and of the land should be cleared or any of the timber sold, it will then be time enough to consider what shall be done with the money obtained from the sale.

LADD, J., and FOSTER, C. J., C. C., concurred.

Master appointed.