Sayers v. Hoskinson

• Decision Date: 19 October 1885
• Docket Number: 9
• Citation: Sayers v. Hoskinson, 110 Pa. 473, 1 A. 308 (Pa. 1885)
• Parties: Sayers et al. v. Hoskinson et ux
• Court: Pennsylvania Supreme Court

1 A. 308

110 Pa. 473

Sayers et al. v. Hoskinson et ux

No. 9

Supreme Court of Pennsylvania

October 19, 1885

Argued October 8, 1885

ERROR to the Court of Common Pleas of Greene county: Of October and November Term 1885, No. 9.

Case by William W. Sayers, Perry A. Bayard and Ann C. Bayard, his wife, in right of said Ann C. Bayard and Ezra M. Sayers, who are the reversioners of a tract of land containing about two hundred acres, situate in said county, against Elizabeth Hoskinson, who was the widow of E. Sealey Sayers, deceased and her husband, Robert Hoskinson, to recover damages for waste alleged to have been committed by the defendants to their inheritance in mining coal, quarrying limestone and freestone and in cutting and selling off the premises locust timber, shade and other trees.

On the trial, before INGHRAM, P.J., the following facts appeared: E Sealey Sayers died intestate in September, 1865, seised of a large tract of land in Greene county.He left surviving him a widow and two children.The son died in his infancy in April 1866.The daughter married J. B. Lindsey and died about the year 1870, intestate and without issue, leaving her husband surviving.Thus the widow, who subsequently married Robert Hoskinson, was the owner of a life estate in one third of the lands as widow, and of another as heir of her deceased son and James B. Lindsey was the owner of a life estate in the remaining third as tenant by the curtesy.The widow and Lindsey made a partition whereby the lands, upon which the alleged waste was committed, were set apart to her.

The widow and her husband, Robert Hoskinson, subsequently leased her lands to William F. Smith for a period of five years from April 1st, 1872.In pursuance of this lease Smith took possession of this land and burned and sold a large quantity of lime from this land.He also quarried and sold freestone to a considerable amount, he also cut down and sold a number of locust and white oak trees.Most of this timber was taken from land not cultivated.Smith also mined and sold a large quantity of coal from these lands.

The plaintiffs, who are the heirs of E. Sealey Sayers, deceased, and as such the owners of the reversion, then brought this action against the life tenants to recover damages for the above acts of their tenant Smith.

The defendants showed that both the limestone and the freestone with which the plaintiffs sought to charge them, were taken from quarries that had been opened and worked by E. S. Sayers, and that the locust trees were cut in order to fit the ground for cultivation, and that the cutting of them was necessary and proper under the circumstances; that most of the timber cut by them was dead or dying and that the rest of it was used to make necessary repairs on the place.

Plaintiffs requested the court to charge, inter alia, as follows:

"5.That whether the cutting of the timber was a benefit or injury to the estate has nothing to do with this case.Are the acts complained of a lasting injury to reversioners, is the question."Answer."Refused as to first clause; affirmed as to the second."(First assignment of error.)

"6.A quarry is defined to be a place, cavern or pit where stones are dug from the earth, etc., and for making barns, houses and other erections; the mere cutting off the edges of a rock for such purposes as testified in this case cannot be construed to mean a quarry in the legal interpretation of the word."Answer."Refused."(Second assignment of error.)

Defendants requested the court to charge, inter alia, as follows:

"3.The felling of dead or dying timber by Freeman Smith, if done so long ago that the timber would have become worthless by natural decay, before the present time, if it had not been felled by him, then the felling of it could be no injury to the inheritance; and therefore would not be waste, and this being an action on the case, in the nature of waste, there can be no recovery against the defendants for the felling of such timber."Answer."Affirmed."(Third assignment of error.)

"4.The felling of locust trees by Smith, which stood in open fields in such a way as to obstruct the cultivation of the ground and prevent the growth of vegetation by their shade, to such an extent that good husbandry required their removal, then Smith had a right to fell and remove them, and his doing so furnishes no ground for the support of this action."Answer."Affirmed."(Fourth assignment of error.)

The court charged the jury generally that, if they should find that the inheritance had been injured, their verdict should be for the plaintiffs, otherwise for the defendants.

Verdict for defendants and judgment thereon.Plaintiffs then took this writ assigning for error the answers to the above points and also the following:

5.The court erred in rejecting the offer of plaintiffs to prove the declarations of Smith, as to the cutting and sale of timber off the premises.

6.The court erred in their general charge to the jury in regard to ascertaining damage done to plaintiffs by cutting and selling timber, and the selling of lime from the premises in possession of life tenant.

7.The court erred in ruling in favor of defendants' bills of costs being taxed correctly.

Judgment affirmed.

James E. Sayers and E. M. Sayers, for plaintiffs in error.-- Cutting trees from the land and selling the wood constitutes waste: Paddelford v. Paddelford, 7 Pick., 152.

The tendency of the law in regard to waste at present is toward a stricter observance of the English rule, and timber and shade trees are being protected with more care.

The question is not whether the land may be of equal value at the falling in of the life estate, to what it was when it began, but whether the inheritance has been injured by the acts.If it has been so injured, the owner of the reversion has a right of action: Taylor's Landlord & Ten., 263.Smith had no right to remove the lime from the land: Lewis v. Jones5 Har., 262.

Trees cut, not for clearing but for sale, is waste: Ward v. Sheppard, 2 Hayward, 283.In a very recent case, Clark v. Holden, 7 Gray, 8, it has been held that cutting trees on woodland by a tenant for life, not for use of the estate, is waste, although done with the intention of restoring the land to the condition of pasture land, in which it was when the estate for life commenced; and although it would be good husbandry in an owner in fee to so restore it.

The law is not so unreasonable as to allow a tenant to cut timber under any pretence.And, although it may appear in a dying condition, a life tenant has no right to cut and sell it.In such case, the court, on request of the remainderman only, will order it cut for his use: Addison on Torts, 344.

J. A J....