ital, or to a like reason.186 And the right to work a mine or quarry which is already opened includes the right to sink new shafts on the same vein, or break new ground on the same rock, but not to work new veins.187

249. Trees and timber-In England.

Trees are, for the purpose of the law of waste, divided in England into "timber" trees and trees not timber. Some trees, such as oak, ash, and elm, seem to be invariably regarded as timber, but other trees may be, and frequently are, timber by the custom of the particular neighborhood. Trees are not, however, considered timber until twenty years of age, and, by custom, may require even a greater age in order to be so considered.188 This distinction between timber trees and trees not timber has, in that country, important results. Timber trees are considered as part of the inheritance, and consequently a tenant (not unimpeachable for waste) has no right to cut them except upon land where it has been the custom to fell seasonable wood at intervals, as part of the regular profits.189 Trees not timber the tenant for life may cut, generally speaking, provided such cutting does not injure the inheritance. The tenant may according

186 Gaines v. Green Pond Iron Min. Co., 32 N. J. Eq. 86, 1 Gray's Cas. 611; Bagot v. Bagot, 32 Beav. 509. See Stoughton v. Leigh, 1 Taunt. 402, 6 Gray's Cas. 729.

187 Clavering v. Clavering, 2 P. Wms. 388, 1 Gray's Cas. 576; Elias v. Snowdon State Quarries Co., 4 App. Cas. 466; Gaines v. Green Pond Iron Min. Co., 33 N. J. Eq. 603, 1 Gray's Cas. 611; Billings v. Taylor, 10 Pick. (Mass.) 460; Moore v. Rollins,, 45 Me. 493; Irwin v. Covode, 24 Pa. St. 162; Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733.

188 Co. Litt. 53a; Bewes, Waste, 98; Honywood v. Honywood, L. R. 18 Eq. 306, 1 Gray's Cas. 598; Dashwood v. Magniac [1891] Ch. 306.

189 Bewes, Waste, 75 et seq.; Perrot v. Perrot, 3 Atk. 94, 1 Gray's Cas. 579; Ferrand v. Wilson, 4 Hare, 344; Dashwood v. Magniac [1891] 2 Ch. 306,

ly cut underwood, provided he does not destroy the stubs from which it grows, such wood being for this purpose like any ordinary crop on the land,190 and a tenant may cut "dotards," or dead trees.191 Trees of the nature of timber trees, but which are as yet too young to be timber, can be cut only for the purpose of thinning the growth for the benefit of other trees. 192 Fruit trees cannot be cut,1 193 nor trees other than timber, if beneficial to the inheritance, such as willows protecting the banks of streams, and ornamental trees.194

In the United States.

In this country, what constitutes waste as regards timber is determined generally by considerations both of the purpose of the cutting and its effect upon the value of the inheritance. In view of the quantity of land which is here available for use only by clearing away the timber thereon, it is usually held that a tenant is not guilty of waste if he cuts timber to a reasonable extent in order that he may cultivate the soil,195 though cutting is waste if it decreases rather than enhances the value of the land,196 or if the real purpose of the cutting

100 Co. Litt. 53a; Bewes, Waste, 58; Phillips v. Smith, 14 Mees. & W. 589.

191 Co. Litt. 53a; Herlakenden's Case, 4 Coke, 62.

192 Honywood v. Honywood, L. R. 18 Eq. 306, 1 Gray's Cas. 598. 108 Bewes, Waste, 95; Co. Litt. 53a.

194 Co. Litt. 53a; Honywood v. Honywood, L. R. 18 Eq. 309, 1 Gray's Cas. 598; Phillips v. Smith, 14 Mees. & W. 589.

1951 Taylor, Landl. & Ten. § 353; Cannon v. Barry, 59 Miss. 289, Finch's Cas. 433; King v. Miller, 99 N. C. 583; Dawson v. Coffman, 28 Ind. 220; Sayers v. Hoskinson, 110 Pa. St. 473; Owen v. Hyde, 6 Yerg. (Tenn.) 334, 27 Am. Dec. 467; Keeler v. Eastman, 11 Vt. 293; Wilkinson v. Wilkinson, 59 Wis. 557; Disher v. Disher, 45 Neb. 100.

196 Davis v. Gilliam, 40 N. C. 308; Mooers v. Wait, 3 Wend. (N. Y.) 104, Finch's Cas. 466; Johnson's Adm'r v. Johnson, 2 Hill, Eq (S. C.) 277, 29 Am. Dec. 72; Jackson v. Brownson, 7 Johns. (N. Y.) 227, 5 Am. Dec. 258; Proffitt v. Henderson, 29 Mo. 325; Disher v. Disher, 45 Neb. 100.

is the sale of the timber,' 197 or some other purpose not conducive to the benefit of the land. 198 The question is to be determined with reference to what one would do, in the exercise of good husbandry, if he were the owner of the fee,199 and also with regard to the custom of the neighborhood.200 The fact that but a small proportion of the property is woodland is a strong consideration against the tenant's right to remove timber.201 The cutting or destruction of fruit trees is waste,202 but not of dead trees. 203 In some of the New England states, however, it seems questionable whether the cutting of wood, otherwise than for estovers, by a tenant in possession impeachable for waste, is in any case allowable.204

197 Johnson v. Johnson, 18 N. H. 594, Finch's Cas. 445; Davis v. Gilliam, 40 N. C. 308; Smith v. Smith, 105 Ga. 106; Davis v. Clark, 40 Mo. App. 515; Modlin v. Kennedy, 53 Ind. 267; Lester v. Young, 14 R. I. 579; Morehouse v. Cotheal, 22 N. J. Law, 521; Padelford v. Padelford, 7 Pick. (Mass.) 151; Chase v. Hazleton, 7 N. H. 171; McLeod v. Dial, 63 Ark. 10. But see Owen v. Hyde, 6 Yerg. (Tenn.) 334, 27 Am. Dec. 467; Joyner v. Speed, 68 N. C. 236.

198 Armstrong v. Wilson, 60 Ill. 226; Johnson v. Johnson, 18 N. H. 594; Noyes v. Stone, 163 Mass. 490; Webster v. Peet, 97 Mich. 327.

199 Cannon v. Barry, 59 Miss. 289, Finch's Cas. 433; Davis v. Gilliam, 40 N. C. 308; Chase v. Hazelton, 7 N. H. 171; Drown v. Smith, 52 Me. 141; Keeler v. Eastman, 11 Vt. 293; Wilkinson v. Wilkinson, 59 Wis. 557.

200 Morehouse v. Cotheal, 22 N. J. Law, 521; McCullough v. Irvine's Ex'rs, 13 Pa. St. 438; Proffitt v. Henderson, 29 Mo. 329; Drown v. Smith, 52 Me. 141; Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733.

201 Powell v. Chesire, 70 Ga. 357, 48 Am. Rep. 572; Duncombe ▼ Felt, 81 Mich. 332; Hastings v. Crunckleton, 3 Yeates (Pa.) 261; McLeod v. Dial, 63 Ark. 10.

202 Bellows v. McGinnis, 17 Ind. 64; Duncombe v. Felt, 81 Mich 332; Silva v. Garcia, 65 Cal. 591; Bewes, Waste, 95.

208 Sayers v. Hoskinson, 110 Pa. St. 473; Keeler v. Eastman, 11

Vt. 293; King v. Miller, 99 N. C. 583.

204 Ford v. Erskine, 50 Me. 227; White v. Cutler, 17 Pick. (Mass.) 248, Finch's Cas. 447; Clark v. Holden, 7 Gray (Mass.) 8; Chase ▼. Hazelton, 7 N. H. 171.

As in England the tenant may periodically cut timber of a certain amount, when such periodical cutting is an estab lished custom on the property,205 so, in this country, a tenant, such as one in dower, may cut wood so far as it has been cut in the past as an ordinary source of profit.

Estovers.

206

A tenant for life or years, or from year to year, but not a tenant at will, is entitled to cut and appropriate a reasonable quantity of timber for the purpose of repairing buildings, fences, gates, and the like upon the premises, also for repairing implements of husbandry, and he may, moreover, take sufficient wood to burn in the house, or, it seems, in houses occupied by his servants. The timber which he is thus entitled to take is known as "estovers" or "botes."207 He is, however, guilty of waste if he cuts down growing wood when there is sufficient dead timber for the purpose, or if he takes superior, rather than inferior, trees, and likewise if he takes more than a reasonable amount, or if he sells the timber so cut.208

$ 250. Mode of cultivation.

The duty of a tenant for years to cultivate the land in a husbandlike manner, so that it will come in good condition

205 See ante, note 189.

206 Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621; Ballentine v. Poyner, 3 N. C. 268; Williard v. Williard, 56 Pa. St. 119.

207 Co. Litt. 41b, 53b; Fawcett, Landl. & Ten. (2d Ed.) 355; 1 Taylor, Landl. & Ten. §§ 351, 352; Smith v. Jewett, 40 N. H. 530, Finch's Cas. 417; Padelford v. Padelford, 7 Pick. (Mass.) 152; Walters v. Hutchins' Adm'x, 29 Ind. 136; Calvert v. Rice, 91 Ky. 533; Gardiner v. Derring, 1 Paige (N. Y.) 573.

208 Co. Litt. 53b; Bewes, Waste, 43 et seq.; 1 Taylor, Landl. & Ten. 352; Simmons v. Norton, 7 Bing. 640; Doe d. Foley v. Wilson, 11 East, 56; Johnson v. Johnson, 18 N. H. 594, Finch's Cas. 445; Padelford v Padelford. 7 Pick. (Mass.) 152.

to the reversioner, is ocasionally based on the theory that cultivation otherwise is waste,209 but generally it is based on the theory of an implied covenant to so cultivate.210

251. Injuries to fixtures.

Structures and annexations upon the land constituting "fixtures" can be removed by the tenant of a particular estate only under the rules heretofore stated.211 So, the removal or destruction by him of buildings on the land, as a general rule, constitutes waste.212 The entire alteration of the character of a building or the substitution of another in place thereof, constitutes waste, it seems, even though the value of the land is increased thereby.218 So, a material alteration

309 Sarles v. Sarles, 3 Sandí. Ch. (N. Y.) 601, Finch's Cas. 450; Hubble v. Cole, 85 Va. 87. So it has been regarded as waste to remove manure made from the products of the land. Lewis v. Jones, 17 Pa. St. 262, 55 Am. Dec. 550; Perry v. Carr, 44 N. H. 118. See Wing v. Gray, 36 Vt. 261.

210 Bewes, Waste, 35; Westropp v. Elligott, 9 App. Cas. 815, 823; Richards v. Torbert, 3 Houst. (Del.) 172; Chapel v. Hull, 60 Mich. 167; Walker v. Tucker, 70 Ill. 527.

211 See ante, § 240.

212 Dooly v. Stringham, 4 Utah, 107; Chalmers v. Smith, 152 Mass. 561; McCullough v. Irvine's Ex'rs, 13 Pa. St. 438; Davenport v. Magoon, 13 Or. 3, 57 Am. Rep. 1; United States v. Bostwick, 94 U. S. 53, Finch's Cas. 434; Bass v. Metropolitan West Side Elevated R. Co., 53 U. S. App. 542, 82 Fed. 857, 27 C. C. A. 147. "If glass windows (though glazed by the tenant himself) be broken down or carried away, it is waste, for the glass is part of his house. And so it is of wainscot, benches, doors, windows, furnaces, and the like, annexed or fixed to the house, either by him in the reversion or the tenant." Co. Litt. 53a.

213 Smyth v. Carter, 18 Beav. 78, 1 Gray's Cas. 588; Dooly v. Stringham, 4 Utah, 107; Davenport v. Magoon, 13 Or. 3, 57 Am. Rep. 1. The older cases in which the rule that a beneficial alteration constitutes waste was most strictly applied were generally based on the theory that, by such alteration, the evidence of title was affected (Cole v. Green, 1 Lev. 309; City of London v. Greyme, Cro. Jac. 181; Young v. Spencer, 10 Barn. & C. 145), a reason which