Dickinson v. Jones , 36 Ga. 97 ( 1867 )

Harris, J.

The refusal of the Circuit Judge to grant the injunction applied for by the remaindermen against the purchaser of the life-estate in the lands, to stay the waste being perpetrated by such tenant, as the destruction of the growing timber, clearing up the wood lands to put them in cultivation, &c., evinces the necessity of collecting and presenting old and familiar principles of the common law touching the respective estates in fee simple and life estates in lands, so as to remove the misapprehensions which so generally exist in the popular mind in reference to them.

An estate in fee simple is the entire and absolute property in the land; no person can have a greater estate or interest. The tenant or owner in fee simple is the absolute master of all the houses and other buildings erected on the land, as also of all wood growing thereon, turf, mines, &c.

A life estate is created by devise, deed, or operation of law. Thus a gift by deed or devise of a parent to a child of a lot of land during the life of such child, remainder to the child or children of such child, carves out a life estate for the child of donor or devisor. The remainder is an absolute estate in fee simple to the grandchild or grandchildren.

So, too, a life-estate is created by law where dower, or one-third of the land for life, is assigned to the widow. All estates for life, however created, are of the same duration, having the same rights, privileges, and incidents, and are subject to the same restrictions in their enjoyment.

Now the enquiry is, what does a tenant for life acquire — * or rather, what is the extent of his estate? Pie acquires the usufruct of the land, or in other words, the right of using and enjoying the annual produce of the land during life, without doing damage to the absolute property in the remainderman.

Ld. Coke in 1st Institute, 53, b, cited in 1st vol. Cruise Dig. Real property, p. 79, — lays it down as law, that tenant-for-life may cut timber trees, (that is, trees twenty years of age,) at seasonable times, for the repairing of the houses or fences on the land; but he cannot cut down timber to build new houses, or to repair those that he has himself improperly let fall into decay.

Even in this case, should he cut down more timber than is necessary for repairs, it is waste. VinePs Abridg’t Waste.

Cutting of dead wood for his own use for fire wood, will not be regarded as waste; but the tenant-for-life will not be allowed to turn any wood into coal, as long as there is dead wood.

The right of tenant-for-life extends no further than to cut dead wood for fuel in the house, and of timber for the making and repairing of all instruments of husbandry, and for the repair of houses and fences. Coke Institutes, 1. 41. b.— 2 Black. Com., 35-122.

Pie is not allowed to cut timber or to commit any other kind of waste. — Whitfield vs. Bewitt, 2d P. Wms 241; 2 Black. Com., 122, 281; 3 Black. Com., 224; Coke Litt. 53, a.

Timber is used technically to denote green wood of the age of twenty years or more, such as oak, ash, elm, beech, maple, and with us would include walnut, hickory, poplar, cypress, pine, gum and other forest trees.

All timber belongs to the remainder man, and the tenant for life has only a qualified property in it, and restricted to the uses before stated. See authorities quoted above.

The tenant-for-life cannot cut turf on bog lands for sale.— Co. Litt., 54, b.

He cannot dig for gravel or lime, clay, brick-earth, stone, or the like, unless for the reparation of the buildings or the manuring of the lands.

The changing of the course of husbandry, as by plowing up of an ancient meadow, was once held to be waste, but that has been altered. Can it be doubted, but that by bad and careless plowing, by which gullies are created and the surface soil swept away, thus impoverishing the land, the tenant-for-life would be held liable for waste, if the foregoing legal principles were pushed to their legitimate results ?

So too the cutting down of shade trees around the homestead, or trees planted for ornament, or fruit trees, has been held to be waste.

The tenant-for-life will be held liable for damages, if when he enters into possession, he suffers houses or fences not in a ruinous condition, to go into ruin when they might easily be repaired.

Some of the foregoing restrictions as to use of timber and clearing up of land, have been held in New York, in the case of Jackson vs. Brown, 7 John Repts, 232, as inapplicable to this country. The answer to this case is, that these common law doctrines have not been altered by any legislative enactment, and are therefore obligatory on the Courts.

Such is the regard paid by the Courts to the protection of those having estates in remainder or reversion, that although the tenant-for-life holds by deed “without impeachment for waste by him,” he will be permitted to cut timber only in a husband-like manner, nor will he be permitted to do a permanent injury to the inheritance. 1 Fonblanque Eq. 33, note; 1 Vesey 264; 6 Vesey 107; 1 John Ch. R. 11.

So jealous too was the common law as to the abuse of his estate by a life-tenant, that though it permitted him to sell or alien his whole estate or interest, or to create out of it a less estate than a life-estate, yet if he created an estate greater than that he held, and thus attempted to divest the estate in remainder or reversion, such conveyance operated as a forfeiture of his estate for life.

As to waste by the tenant-for-life, there existed at one time an idea that he was exempt from liability therefor, unless in his deed or title he was restrained by express words from committing it, growing out of some decisions to the effect that because the person creating a life estate could impose such terms on the tenant as he pleased, and none being imposed, the life-tenant was held not answerable for waste in the absence of such terms.

This led to the enactment of the Statute of Marlbridge, Henry 3d, chap. 24, by which the owners of the inheritance or in remainder or reversion, were entitled in all such cases, to maintain action against the life-tenant, and to recover full damages for the waste committed:

This statute being found inadequate to protect the estate in remainder or reversion, against the strong disposition of the tenant-for-life to go beyond his privileges, the Statute of Gloucester 6, Edward 1st, ch. 5, (see Schley Dig.,) increased the punishment, by declaring that the land injured should be recovered by the absolute owner, together with treble damages as an equivalent for the waste or injury done the estate. 2d Inst. 144, 299.

The Satute of Gloucester is incorporated in Schley’s Digest as of force in Georgia.

Several notices of its provisions may be found in the earlier decisions of this Court, and obiter it is doubted whether treble damages can in this State be recovered for waste. Whenever I shall find that this statute has been repealed or altered by the Legislative power, it will be my duty to conform to its will; but until better informed, I must regard that statute as of force. Indeed no case could be presented stronger than the one in this record, demanding by every consideration of justice, for injury already done, such reparation as this statute provided.

Injunction ordered to be sanctioned.