Norris v. . Laws , 150 N.C. 599 ( 1909 )

Walker, J.,

after stating the case: • The accepted definition of “waste” is a spoil or destruction, done or permitted with respect to lands, houses, gardens, trees or other corporeal heredit-aments, by the tenant thereof, to the prejudice of him in reversion or remainder or, in other words, to the lasting injury of the inheritance. 2 Blk. Com., 281. Voluntary waste is active or positive, and consists in some act of destruction' or devastation. Permissive waste is such as is merely permitted by the tenant, and consists in the negUct or omission to do what will prevent injury to the estate or freehold, as, for example, to suffer a house to become decayed for want of proper repair. Black’s Diet., p. 1236, and authorities cited. The plaintiff alleges that the inheritance, or remainder, belonging to him has been damaged by both kinds of waste committed and permitted by the defendants upon the premises in question. We have held that what is a permanent injury to the inheritance must often depend upon the facts and circumstances of the particular case under consideration, and the jury must determine, under proper instructions from the court, whether the tenant for life, in whát he has done or omitted to do, has acted with the same care as a prudent owner of the fee would have exercised if he had been in possession, cultivating and using the land for a support or for profit. Shine v. Wilcox, 21 N. C., 631; King v. Miller, 99 N. C., 583, and Sherrill v. Connor, 107 N. C., 630, and other authorities therein cited. The charge, in many respects, is sustained by the authorities we have cited, but in one respect the court committed an error. The jury were instructed as follows: “It is the, province of the jury, and it is their duty, to consider the changed conditions as to the greatly increased value of timber' and timber lands in proportion to (as compared with) cleared or farm lands in arriving at a conclusion as to the necessity for clearing any part of the premises.” In this and other parts of the instruction the court assumed that facts had been established about which the testimony was conflicting. ■ There was evidence that, instead of diminishing the value of the land, the cutting of the timber and clearing the land had enhanced it, and also evidence that cleared land had risen in value more than timbered land. It was misleading, therefore, to assume the contrary to be true, and upon that assumption to base an instruction to the jury which might control them in rendering their verdict. That the error was a material and prejudicial one cannot admit of a doubt. The instruction was erroneous in another respect: The right of the tenant for life to clear land sufficient for her support and a reasonable enjoyment of her estate cannot be made to depend solely upon the value of the timbered land as compared with the value of cleared land, because, if this were true, the tenant for life could not clear any land, or not a sufficient quantity for her support, if the timber cut from it or the land with the timber standing upon it is more valuable than the land would be when cleared. She would have no right, at least ordinarily, to cut the timber merely-for the purpose of selling it, as is' held in the cases we have cited; and if this cannot be done and there is not sufficient land already cleared for her support, she could not use the land at all, but must let the trees stand and continue to grow for the benefit of the reversioner, or remainderman, if the timbered land is more valuable than if it were cleared. It is very true that there should be a due_ or proper proportion between timbered and cleared land — such, it is said, as a prudent husbandman would maintain in the use and management of the premises. But this is far from saying that the relative value of timbered and cleared land determines the right of the tenant for life to make additional clearing if, in the exercise of prudence and judgment, it was required for her support and the reasonable enjoyment of her estate. The standard by which the conduct of the life tenant is to be gauged, or the test as to whether waste has been committed or not, is that stated in Sherrill v. Connor (which we now approve) and the cases therein cited. It is the rule of the prudent husbandman and what he would do, under the circumstances, if owner of the fee. This is quite strict enough in its application, and the life tenant should not be held to too rigid an accountability. Judge Gaston, in Shine v. Wilcox, supra, said it will not do to hold that the clearing of the forest so as to fit it for the habitation and use of man is waste, and, we add, whether it is or not must depend upon the peculiar facts of any given case, and the finding of the jury thereon, when properly directed by the court, under .the rule of law we have laid down and which has been generally adopted by the courts.

The question presented in this case was not confined alone to the relative value of timbered and cleared land, but the jury should have been so instructed as to ascertain the general result in respect to whether there had been a lasting injury to the inheritance and especially as to how much land the plaintiff was# entitled to clear, for her reasonable support in the exercise of that degree of prudence which the careful husbandman would observe in the cultivation and management of the land. It is true that the jury may consider all the facts and circumstances of the case in order to reach a just conclusion, and, among others, the value of timbered and of cleared land may be considered for the purpose of determining whether the clearing had been done in a prudent manner; but we think the instruction which we have qfioted was too broad and was calculated to mislead the jury in passing upon the' respective rights of the parties. This error was not corrected by, any other instruction given by the court. His Honor finally brought the case to the true test in his concluding instruction, but it did not reach and remove the error we have pointed out. The question as to whether timbered land was more valuable than cleared land should have been left to the jury for their determination upon the conflicting testimony, without any assumption of the fact that timbered land was the more valuable. This was not an incurable error, but it was not corrected by anything said by the court in the other parts of the charge. Other errors are assigned, but it is not necessary to discuss them, as the questions raised by these assignments may not again be presented. The case must be submitted to another jury, with proper instructions of the court upon the issues and evidence. •

New Trial.