Rutherford v. Wilson

• Decision Date: 30 May 1910
• Citation: 129 S.W. 534,95 Ark. 246
• Parties: RUTHERFORD v. WILSON
• Court: Arkansas Supreme Court

129 S.W. 534

95 Ark. 246

RUTHERFORD v. WILSON

Supreme Court of Arkansas

May 30, 1910

Appeal from Independence Circuit Court; Charles Coffin, Judge affirmed.

Judgment affirmed.

Samuel M. Casey, for appellant.

In no case is the tenant allowed to cut wood for sale unless this is the customary mode of using the land. Tied. on Real Prop § 74. And this rule applies to a dowress. 4 Kent, Com 76. The cutting and selling of timber by a life tenant is waste for which the reversioner may sue. 92 Am. St. R. 621; 53 Am. Dec. 621. The timber can only be cut or used for the proper enjoyment of the estate for life, and not merely for sale. 63 Ark. 15. A verdict should have been directed for plaintiff, for defendant failed to make out a defense. 35 Ark. 147; 69 Ark. 562. The verdict is so palpably against the evidence as to shock the sense of justice of a reasonable person. 70 Ark. 386. It is error to give conflicting instructions. 74 Ark. 44; 72 Ark. 14; Id. 440.

Oldfield & Cole, for appellee.

In America a life tenant may cut and remove timber for the purpose of putting the land in cultivation. 63 Ark. 15; 14 Tenn. 334; 27 Am. Dec. 467; 33 S.W. 293; 59 Wis. 557; 18 N.W. 527; 2 Am. Dec. 258; 5 Id. 258; 72 Id. 721; 1 Tiffany on Real Prop., 564. The burden is on the remainderman to show that the life tenant went beyond her rights in cutting the timber. 72 Am. Dec. 721. There is some testimony to support the finding of the jury that the purpose of the life tenant was to clear the land, and that is sufficient here. 67 Ark. 399; 73 Ark. 377; 75 Ark. 111; 82 Ark. 188; 84 Ark. 74; 89 Ark. 321. Before plaintiff could recover anything it was incumbent on him to show that his reversionary interest had been damaged. 63 Ark. 15; 21 N.C. 631; 14 Tenn. 334; 27 Am. Dec. 467; 11 Vt. 293; 63 N.W. 368; 33 S.W. 561. If the trees were dead or dying, their removal could not injure the inheritance. 99 N.C. 583; 1 A. 308; 11 Vt. 293.

OPINION

McCULLOCH, C. J.

A tract of land in Independence County, containing 229.32 acres, was assigned to the defendant, Mrs. Angie Wilson, as dower out of the estate of her deceased husband, about 150 acres of this tract being cleared and in cultivation, and the remainder being woodland. Plaintiff, W. A. Rutherford, is the owner of the reversion.

In the year 1907 defendant sold and allowed to be removed the timber on 20 or 25 acres of the woodland, for which she received the sum of $ 104.77, its market value; and in February, 1909, plaintiff instituted this action against her to recover said sum so received, alleging that she committed waste by removing the standing timber, and that the freehold was damaged to that extent. A trial before a jury resulted in a verdict for defendant, and plaintiff appealed.

The evidence shows that the land from which the timber was removed is tillable, but that it had not been put in cultivation at the time of the trial, except a small part--something less than an acre. It will be ready for the plow as soon as the brush and undergrowth is burned. Defendant testified that she sold and allowed the timber to be cut so that she could put the land in cultivation as soon as practicable, and that she is proceeding to put it in cultivation.

This court, in the case of McLeod v. Dial, 63 Ark. 10, 37 S.W. 306, laid down the following rule as to the rights of a life tenant: "He had no right to cut trees growing on this portion of the land, or allow them to be cut, except so far as was necessary to the proper and reasonable enjoyment of his life estate in conformity with good husbandry. For the purpose of using it as farming land, he had the right to clear a part of it, provided such part and that already prepared for cultivation, as compared with the remainder of the tract, did not exceed the proportion of cleared to wooded land usually maintained in good husbandry; and provided, further, that he did not materially lessen the value of the inheritance. He also had the right to cut and use so much of the timber standing on the one-half which belonged to his wife as was necessary for fuel, and for making and repairing fences and buildings on the same. But the timber could only be cut or used for the proper enjoyment of the estate for life, and not merely for sale." Citing Davis v. Clark, 40 Mo.App. 515; Owen v. Hyde, 14 Tenn. 333, 6 Yer. 333; Jackson v. Brownson, 1 Johns. 227; Clemence v. Steere, 1 R.I. 272; Ballentine v. Poyner, 2 Hayw. 110; 1 Washburn, Real Property, pp. 146, 148. The same rule has been stated by this court in subsequent cases. Nashville Lumber Co. v. Barefield, 93 Ark. 353, 124 S.W. 758; Cherokee Const. Co. v. Harris, 92 Ark. 260, 122 S.W. 485.

Now, measured by the law thus announced, it was a question for the jury to determine whether or not the removal of the timber amounted to waste, and constituted an injury to the inheritance. What is "good husbandry" is not always easily determined, as that depends on the peculiar facts and circumstances of each case. The whole tract contained 229.32 acres, with about 150 acres already in cultivation. With 20 or 25 acres more in cultivation, there would be left 55 or 60 acres of woodland. This may be sufficient to afford firewood and material for repairs, such as fenceposts, rails, boards or even lumber with which to build houses. That, of course, depends on the amount and kind of timber. We can not say that the jury were unwarranted in finding that it would be good husbandry to put the additional quantity of land in cultivation.

Another element of the inquiry is the relative value of the land and the timber. There is nothing to...