Stewart v. Wood

Opinion of the Court, the

Hon. Carroll C. Boggs, Judge.

This is an appeal from a judgment rendered in favor of the appellee in the sum of §34 in an action on the case in the nature of an action of waste with a count in trover added. Ira E. Stewart and wife conveyed ninety acres of land to the appellee, the deed containing this reservation: “ Deserving, however, unto the grantors the full and entire profits, use and control of all the above described premises during the natural life of the grantors.” Ten acres of the tract conveyed was timbered land, upon which the appellant cut and felled trees under license or by authority, as he claimed, from Ira E. Stewart, the grantor aforesaid. The judgment was for the damage thus done to the reversionary estate of the appellee.

The Circuit Court ruled that the grantor in the deed reserved by the clause in question only a life estate, and that the right to take and cut timber under it was restricted to three purposes : (1) Such as was necessary for improvements on the premises in ordinary repairs; (2) a sufficient amount for ordinary firewood for Ira Stewart, his wife and the tenants thereon; (3) such timber as was going to waste or decay.

The" privileges in regard to cutting and felling trees thus accorded the grantor are practically such as the law awards to the owner of a life estate. It is insisted, however, that while such was the rule at the common law, that it no longer prevails in America. The American doctrine as to such rights, somewhat enlarging the common law rule, applies in particular cases only; as, if the estate be wholly wild and uncultivated, a part of it may be cleared for cultivation, leaving sufficient timber for the permanent use of the farm, and other like exceptional cases, having no similarity to the case at bar. Even in such exceptional cases, the fact that the estate in remainder was benefited, not injured, bjr the acts of the tenant for life, is always stated as a justification for the departure from the rule at common law.

That rule is, that whatever does lasting damage to the freehold, or tends to the permanent loss of the owner of the fee, or destroys or lessens the value of the inheritance, is deemed waste, and this rule has been kept steadily in view, and recognized as correct in, we think, all cases relied upon as authority in support of the more liberal American rule. In support of these views, see Wharton, Real Prop., page 147, Sec. 3; C. & A. R. R. Co. v. Goodwin, 111 Ill. 273; Kent’s Com., Vol. 4, pages 85 and 86.

It is, however, urged that the particular words employed in the clause of reservation, if given their common and popular meaning, would entitle the grantor to greater privileges than the law gives to the holder of a life estate. We do not think so. A reservation of “ the full and entire profits ” of land for life does not, in any correct sense, either popular or technical, reserve any part of the estate or body of the land itself, but only the “ profits ” arising out of such use as may be made of the property without impairing the freehold estate. Ko one would suppose that one having the right to enjoy the use and profits of real property, might or could sell the property itself, or a portion of it, as timber growing upon it, and have the proceeds regarded as “ profits.”

If the rights of the grantors depended alone upon the words of the reserving clause construed according to the common acceptation and meaning of the words used, aided in no respect by the rules of law fixing the rights of a tenant for life, we do not think privileges would be given the owner of the life interest other than were accorded by the court below in this case.

We think the rulings of the Circuit Court were correct, and we find abundant competent evidence to support the finding of the jury.

The judgment must be affirmed.