Jackson ex dem. Church v. Brownson , 7 Johns. 227 ( 1810 )

Van Ness, J.

The covenant restraining the lessee from alienating, without previously obtaining the permission of the lessor, is for the benefit of the latter. Its object was to secure to the lessor the right of preemption, and to prevent a bad tenant from being obtruded upon him. If the lessor had sold without such permission, a forfeiture of the estate would have been incurred. To effect a valid assignment, therefore, the consent of the lessor was requisite, and that in this case having been obtained, the assignment was legal, and all parties stand in the same relative situation to each other as they would have done after assignment, if the lease had contained no such covenant. The lessee covenants for himself, his heirs and assigns, and he is therefore liable for every act of his assignee, amounting' to a breach of any of the covenants or conditions in the lease. To this point the cases are numerous and decisive. (Brett v. Cumberland, Cro. Jac. 521. Bachelor v. Gage, Cro. Car. 188. Norton v. Ackland, Cro. Car. 580.)

But it is said here has not been waste. It is a general principle that the law considers every thing to be waste which does a permanent injury to the inheritance. (Co. Litt. 53, 54. 1 Cr. Dig. 65. 6 Com. Dig. tit. Waste.) Now, to say that cutting down the wood on almost every acre of the demised premises is not waste, within the spirit and meaning of the covenant in the case, is to say that no waste, by the destruction of wood, can be committed at all. We are bound to give effect to this covenant if we can, but to decide that the facts stated m the case do not constitute ,,i, ... , , , waste, would be destroying it almost altogether. That the destruction of the timber is a lasting injury to the reversion cannot be disputed. For this injury the lessors of the plaintiff. may, at their election, bring covenant, or' enter as for condition broken. For the breach of every covenant there is, by the express terms of the lease, a forfei.ure of the estate, so that whenever an act has been done which gives the right to maintain covenant, at the same moment the right to enter, as for a forfeiture, is equally given. It follows, that if this action cannot be sustained, the lessors of the plaintiff are totally remediless. It is true that what would in England be waste, is not al= ways so here. The covenant must be construed with reference to the state of the property at the time of the demise. The lessee undoubtedly had a right to fell part of the timber, so as to fit the land for cultivation; but it does not follow that he may, with impunity, destroy all the timber, and thereby essentially and permanently diminish the value of the inheritance. Good sense and sound policy, as well as the rules of good husbandry, require' that the lessee should preserve so much of the timber as is indispensably necessary to keep the fences and other erec'tions upon the farm in proper repair. The counsel for the defendant is mistaken when he says that lessees in England are prohibited from cutting wood upon the demised premises altogether; the prohibition, in principle, extends no further, in this respect, there than it does here. In England, that species of wood which is denominated timber, shall not be cut down, because felling it is considered as an injury done to the inheritance, and therefore waste. Here, from the different state of many parts of our country, timber may, and must be cut down to a certain extent, but not so as to cause an irreparable injury to the reversioner. To what extent wood may be cut before the tenant is guilty of waste, must be left to the sound discretion of a jury, under the direction of the court, as in other cases. What kind of wood in England is deemed to be timber, de» , 5 . pends upon the custom of the country. Wood which m some counties is called timber is not so in others. (Duke of Chandos v. Talbot, 2 P. Wms. 606. Countess of Cumberland’s case, Moore’s Rep. 812. Co. Litt. 536. Cook v. Cook, Cro. Car. 531. Cro. Jac. 126. n.) So a lessee for years is entitled to reasonable estovers; but he is guilty of waste if he cuts green trees when there is dry wood (artdum lignum) sufficient. So again, if there be a tenant for life without impeachment of waste, he may cut down all sorts of timber and convert them to his own use; but if he wantonly cuts timber which serves for ornament, or shelter, or which is not fit to be felled, he is punishable for waste, (l Cr. Dig. 80.) The principle upon which all these cases were decided is that which I have before stated, namely, that whenever wood has been cut in such a manner as materially to prejudice the inheritance, it is waste; and that is the principle upon which I place the decision of this cause.

It may be supposed that this construction of the covenant in question proceeds upon equitable considerations, and that equity never favours any construction that leads to the forfeiture of an - estate. On the contrary, the construction which I have adopted is the legal one, because I hold, that by destroying nearly all the wood on the demised premises, so that the land must soon be reduced to a mere common, and the buildings go to destruction for want of timber to keep them in repair, (unless it can be elsewhere obtained,) is such an injury to the inheritance, as, according to the established rules of law, amounts to waste. For my part, therefore, I lay all equitable considerations out of view, and proceed upon strictly legal grounds.’

That the lessors of the plaintiffs, or their ancestors, had waived the forfeiture by the acceptance of rent, was not the ground -upon which the judge directed the jury; and probably the attention of neither of the parties was directed to this point at the trial, though it is now insisted upon. As the pas,e at present stands, there has been no waiver. It does hot appear that the lessors, or their ancestor, knew that a forfeiture had been incurred, and the acceptance of rent, unless they did at the time know this fact, is no waiver. (Roe, ex dem. Gregson, v. Harrison, 2 Term Rep. 425. Mathews v. Whetton, Cro. Car. 233.) On this part of the case further light may, perhaps, be thrown on a future trial.

My opinion therefore is, that the motion for setting aside the nonsuit, and granting a new trial, ought to be granted.

Kent, Ch. J. and Thompson, J. were of the same opinion.

Spencer, J.

It is an established principle that in construing a covenant which is to work a forfeiture, courts adhere strictly to the precise words of the condition, in order to prevent the forfeiture. This rule, for its equity and reasonableness, deserves constantly to be kept in view. It is, in most cases, rigorous and harsh to break up a lease, for the violation of covenants which may be compensated in damages; and the present case appears to be one of that description.

The lease under consideration is to receive a double construction; a liberal one as to the thing leased, and the use and enjoyment of it by the lessee, so as to effectuate the intention of the parties; and a literal one to prevent the forfeiture.

The land was covered with heavy timber; and, for the use of it, the lessee was to pay a rent. The parties must, therefore, have intended that the lessee should be at liberty to fell the timber to a certain extent, at least, for agricultural purposes.

If the restriction to commit waste would operate to restrain the lessee from the use of the premises, it would be void, as repugnant to the grant. I shall have no difficulty in maintaining that, according to the common law of En-viand, the lessee could not enjoy the land, nor derive any .benefit from it without the commission of waste; and should that point be established, this covenant must tie rejected. The general definition of waste is, that it is a destruction jn houses, gardens, trees, or other corporeal hereditaments, to the disherison of him in remainder or reversion. It is not every injury to lands that the law considers as waste, nor every act which injures the remainder-man, or the reversioner. To test this supposed waste by considering the reversioner injured by the acts done, is not warranted by law; and, in point of fact, when the premises were cleared of the timber, cleared land was more valuable than woodland. Cutting down oak, ash and elm, after they arrive at the age of 20 years, is waste, they being timber throughout England. (Com. Dig. tit. Waste, D. 5. Co. Litt. 53. a. and b. 2 Roll. 280.1. 10.) In the present instance, the case does not state what species of timber was cut down; but the land was covered with heavy timber, and was a forest; and I am free to admit, that other trees than oak, ash and elm, may be the subject of waste, if they constitute the timber of the country where they grow. Every tenant has certain rights under his lease. Unless restrained from cutting wood altogether, he has a right to hous e-bote, fir e-bote, plough-foie atid fence-foie. For the purposes of fuel, he is bound first to take, the dry, fallen, and perishing wood; for the purposes of erecting necessary buildings, be has a right to fell timber,, and so for the other botes; but I insist that, according to the common, law of England, no tenant can cut down timber, &c. or clear land for agricultural purposes; and that the quantity of timber cut down never enters into the consideration whether waste has or has not been committed; but that it is always tested by the fact of cutting timber, without the justifiable excuse of having done it for . hous e-bote, fire-foie, plough-foie or fence-foie. A single • tree cut down, without such justifiable cause, is waste as eff fectually as if a thousand had been cut down; and the ■ reason is this, that such trees belong to the owner of the in? heritance, and the tenant has only a qualified property in them for shade and shelter. (1 Cruise, 62, 63. tit. 3. s. 15. and 18.)

The doctrine of waste, as understood in England, is inapplicable to a new, unsettled country. If the parties before us intended that a sufficient quantity of timber should be left for the use of the farm, it was very easy to have inserted a covenant to that effect. We are tied down, in the present inquiry, to a literal, technical construction of the covenant, and have no right to go into the intention of the parties, or adopt any equitable notions. If this was an action of covenant to recover damages for having cut down all the timber on the premises, then indeed we should have a right to give the covenant not to commit waste a greater latitude of construction. The criterion set up by the plaintiff, to decide whether waste has been committed, is altogether fanciful and vague; and the case shows, that men differ very widely as to how much woodland ought to be left for the use of a farm. The rule furnished by the common law is fixed and certain; and the lessor knows what wood he may cut and for what purposes; but if a covenant not to commit waste is hereafter to be considered as a covenant to leave a sufficient quantity of land in wood, no lessee is safe. If the act of cutting timber on the premises, without the justifiable excuse already stated, was not waste, cutting more or less was immaterial. Under the covenant not to commit waste, we have no right to say some waste might be committed, and other waste might not; the covenant is inapt to the ease, and if any remedy exists, it must lie in covenant. I am, therefore, against granting a new trial.

Yates, J. was of the same opinion.

Rule granted.