Wingard v. Lee, 0570

• Citation: 287 S.C. 57,336 S.E.2d 498
• Decision Date: 24 September 1985
• Docket Number: No. 0570,0570
• Court: Court of Appeals of South Carolina
• Parties: James T. WINGARD, Jr., d/b/a Abear Homes, Respondent, v. Ralph E. LEE, Appellant. . Heard

Page 498

336 S.E.2d 498

287 S.C. 57

James T. WINGARD, Jr., d/b/a Abear Homes, Respondent, v. Ralph E. LEE, Appellant.

No. 0570.

Court of Appeals of South Carolina.

Heard Sept. 24, 1985.

Decided Oct. 31, 1985.

J. Dwight Hudson, P.A., Conway, for appellant.

C. LaVaun Fox and William H. Burkhalter, Jr., of Fox, Zier, Burkhalter & Hatcher, Aiken, for respondent.

BELL, Judge.

This is a landlord-tenant dispute. The tenant, James T. Wingard, commenced suit against the landlord, Ralph E. Lee, seeking enforcement of certain rights under a long term lease of unimproved real property. Lee counterclaimed for damages and forfeiture of the lease, alleging Wingard had committed waste on the property by unreasonably cutting and selling merchantable timber. The circuit judge, sitting without jury, found no waste had been committed. However, he required Wingard to pay the proceeds from the sale of the timber to Lee. He also ordered Lee to forfeit one month's rent for failure to remove a mobile home from the premises as required by the lease. Lee appeals. We affirm in part and reverse in part.

In December 1982, Lee executed a written lease of 43.96 acres of unimproved land to Wingard for a term of twenty-five years, renewable at Wingard's option for up to twenty-five additional years. Both parties understood that Wingard was leasing the land to develop it into a mobile home park. The lease gave Wingard "the right to make such improvements to the demised premises as he deems advisable," and required him to bear all costs of construction.

Shortly after the lease was executed, Wingard took possession of the property and began clear cutting the timber to prepare the site for development of the mobile home park. At trial, Wingard's expert witness, a construction engineer, testified it was necessary to cut the trees in order to develop drainage, roads, utilities, and space for the mobile homes. He stated that selective cutting involves "prohibitive expense," and that it is better from the standpoint of developing the property to clear the land completely, landscape it, and replant trees. Lee admitted the property could not be developed as a mobile home park without cutting trees. His expert witness, a professional forester, viewed the property and testified: "The cutting operation was fairly typical for that type operation."

When Lee discovered Wingard was clear cutting and selling the timber, he became upset and attempted to stop the clearing operation. He refused to remove a mobile home from the property, as called for by the lease. Through his attorney, he gave Wingard notice that he wished to terminate the lease. As a result, Wingard ceased cutting the timber and commenced this action to restrain Lee from interfering with his quiet enjoyment of the premises and to require Lee to remove the mobile home from the property. Lee counterclaimed, alleging Wingard was committing waste on the property. He sought forfeiture of the lease and money damages for the value of the cut timber.

I.

The main issue on appeal is whether the evidence supports the circuit court's finding that Wingard did not commit waste on the property.

At common law, waste is any permanent injury to lands, houses, gardens, trees, or other corporeal hereditaments done or permitted by the tenant of an estate less than a fee to the prejudice of him in reversion or remainder. Thomas v. Thomas, 166 N.C. 627, 82 S.E. 1032 (1914). Waste may be committed by acts or omissions which tend to the lasting destruction, deterioration, or material alteration of the freehold and the improvements thereto or which diminish the permanent value of the inheritance. Whether particular acts or omissions constitute waste depends on matters of fact, including: the nature, purpose, and duration of the tenancy; the character of the property; whether the acts complained of are related to the use and enjoyment of the property; whether the use is reasonable in the circumstances; and whether the acts complained of are reasonably necessary to effectuate such use. See McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 27 P. 863 (1883).

If acts which might otherwise amount to waste are expressly or impliedly authorized by the instrument creating the tenancy, a tenancy without impeachment of waste is created. In such cases, the tenant is not liable for waste, as long as he does not act unreasonably, maliciously, or unconscionably to destroy the estate. Derham v. Hovey, 195 Mich. 243, 161 N.W. 883, 21 A.L.R. 999 (1917). Similarly, acts which might otherwise amount to waste by a tenant do not constitute waste if the landlord assents to them. United States Trust Company v. Commonwealth, 348 Mass. 378, 204 N.E.2d 300 (1965).

In this case, the circuit judge correctly held Wingard was not liable for waste. The land in question was an unimproved tract covered with trees. Lee knew the property was being leased for the specific purpose of developing a mobile home park and he assented to its use for that purpose. The land could not be developed without cutting trees. Thus, the acts complained of were...