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taken in the proper course of management (d).-A tenant Underwood. may cut underwood in due course of husbandry; but if he destroy the stubs from which it grows, it is waste (e). He may cut willow trees growing from stubs, in the ordinary way of taking the profit (ƒ). So with oak coppice, where it is worked by regular periodical cuttings (g).-A tenant may Hedges. cut hedges and take the cuttings for his own use, but if he

cut in excess or destroy the hedge it is waste (h).-A tenant Dead wood, may cut and take dead trees that are decayed and no longer available for timber or other useful or ornamental purpose, without impeachment of waste (i).

and shelter

Tenant for life without impeachment of waste may be Ornamental restrained from cutting down trees that have been planted trees. or left for ornament or shelter or any permanent purpose other than mere profit, except so far as may be required for the improvement of the rest of the trees or for the improvement of the estate at large; in which case the Court would, in general, in allowing the cutting, require it to be done under the direction and supervision of the Court. If such timber has been cut without leave, the Court will direct an inquiry whether it was properly cut, and in that case only will allow the tenant for life to have the proceeds for his own benefit (k). Trees may be protected as ornamental with reference to a house as a place of residence; or with reference to an estate laid out in rides and drives; or with reference to distant views from a house or grounds, for which reason a clump of firs two miles from a house has been protected as being ornamental (). On the other hand trees originally planted for ornament to a house may cease

(d) Brydges v. Stephens, 6 Madd. 279; 2 Swanst. 150.

(e) Co. Lit. 53a; Bateman v. Hotchkin, 31 Beav. 486; 32 L. J. C. 6.

(f) Phillips v. Smith, 14 M. & W. 589; ante, p. 34.

(g) Bagot v. Bagot, 32 Beav. 509; 33 L. J. C. 116.

(h) Berriman v. Peacock, 9 Bing. 384.

(i) Co. Lit. 53a; Manwood v. Myme, Dyer, 332.

(k) Baker v. Sebright, L. R. 13 C. D. 179; 49 L. J. C. 65; Lushington v. Boldero, 6 Madd. 149; 15 Beav. 1; 21 L. J. C. 49; Ford v. Tynte, 2 D. J. & S. 127.

(1) Downshire v. Sandys, 6 Ves.

107.

Right to cut trees for repair, &c.

Extent of right.

to be protected upon the pulling down of the house and abandonment of the site as a residence (m).

A tenant for life or years is entitled, as an incident of his tenancy at common law, to cut timber and other trees to provide reasonable supplies of wood for the use and maintenance of the demised premises. These were anciently termed botes or estorers, signifying supplies or materials, and are of the following kind: House bote, a sufficient supply of wood to repair houses and buildings, and to provide domestic fuel; Plough bote, sufficient wood for repairing ploughs, and implements of husbandry; Hay or hedge bote, for repairing fences, gates, styles, and the like. "And these the lessee may take upon the land demised without any assignment, unless he be restrained by special covenant; and the same estovers that tenant for life may have, tenant for years shall have" (n). The right to take estovers from land other than that demised is a profit à prendre (o). A tenant may take timber to make repairs, although he be not compellable to repair, nor impeachable for waste in the non-repair. "So if the lessor by his covenant undertaketh to repair the house, yet the lessee (if the lessor doth it not) may with the timber growing upon the land repair it, though he be not compellable thereunto" (p).— These rights must be exercised in a reasonable manner; the tenant may not cut growing trees for fuel, where there is sufficient dead wood; to do so is waste (g). He may not cut timber for making fences for new enclosures (»). He may not cut timber and sell it for the purpose of providing other materials required for repairs with the proceeds of the sale; and if he cuts unsuitable material, it is no justification or mitigation of the wrong, that he afterwards sold it and applied the proceeds in repairs (s). But

(m) Micklethwait v. Micklethwait,

1 De G. & J. 504; 26 L. J. C. 721.
(n) Co. Lit. 41b; 53b; Heydon
v. Smith, 13 Co. 68.

(o) See post, p. 326.

(p) Co. Lit. 54 b.

(9) Co. Lit. 53 b.

(r) Manwood v. Myme, Dyer, 332. (s) Co. Lit. 53b; Simmons v. Norton, 7 Bing. 640.

it seems that where the available timber is inconveniently situated, he may sell it on the spot for the purpose of buying other timber where it is wanted, in order to save the carriage (t).

and copy

A tenant at will, not being liable for repairs, is not Tenant at will entitled to estovers of timber for that purpose (u). A copy- holder. holder, as being a tenant at will at common law, would not be so entitled; but the custom of most manors sanctions in a greater or less degree the taking of estovers of timber and other materials for repairs, fuel, fencing and the like according to the requirements of the tenement (). The customary right of a copyholder is appurtenant to the tenement, and independent of the title to the manor, or to the trees, which may be granted or excepted from the manor without affecting the right of the copyholder (w). If the copyholder, entitled to cut wood for estovers, cuts for other purposes, as for sale, it is waste, which is a ground of forfeiture of the tenement, and the lord may bring ejectment and is entitled to the timber cut (x).

tenant.

As to the property in trees cut wastefully or wrongfully Property in during a tenancy for life or for years, there is a distinction timber cut by between timber trees and trees that are not timber. If timber trees be severed during a particular tenancy, whether by the tenant or another, the tenant being impeachable for waste, the estate or interest of the tenant in the trees is determined by the severance; the trees are thereby disannexed from the land and reduced to the state of personal chattels, and the property, by the rule of common law, vests immediately in the person entitled to the first vested estate of inheritance, in fee or in tail. He may bring an action to recover the trees, as having become

(t) Marlborough v. St. John, 5 D. & Sm. 174; 21 L. J. C. 381; Sowerby v. Fryer, L. R. 8 Eq. 417; 38 L. J. Č. 617.

(u) Lit. s. 71; Co Lit. 57 a.

(v) Scriven Cop. 424, 4th ed.; East v. Harding, Cro. Eliz. 292,

498; Swayne's Case, 8 Co. 63; Hey-
don v. Smith, 13 Co. 67; Ashmead
v. Ranger, 1 L. Raym. 551.

(w) Swayne's Case, 8 Co. 63.
(x) Doe v. Wilson, 11 East, 56;
Blackett v. Lowes, 2 M. & S. 494.

his property from the moment they were felled, or an action to recover the proceeds of a sale of the trees as money received to his use; he is also entitled to discovery of the value of the timber which has been cut down by, and is in the possession of, the tenant, or which has been sold by him (y). Tenant for life in remainder has no claim at law to the timber wastefully cut by the tenant in possession; nor though his own estate be specially licensed to commit waste, for such licence would only entitle him to cut timber during his own possession (2). But he may obtain an injunction to restrain the cutting of trees to the detriment of his expectant interest in the future possession (a). If the tenant in possession be unimpeachable for waste, the trees cut during his tenancy, whether by himself or by a stranger, vest in the tenant himself the Timber cut in moment they are cut down (b).—"There is in equity an exception where the owner of the first vested estate of inheritance has colluded with the tenant for life (impeachable for waste) to induce the tenant for life to cut down timber; and then equity interferes and will not allow him to get the benefit of his own wrong." The Court, in exercise of equitable jurisdiction to prevent fraud, will require the proceeds of any such cutting to be brought into Court and invested for the benefit of the successive owners under the settlement, exclusive of the tenant for life (c). Accordingly, where the tenant in possession and the ultimate reversioner agreed to cut timber and divide the proceeds, and an intermediate contingent remainder in tail afterwards became vested, the Court decreed that the tenant in tail was entitled to recover the proceeds of

collusion with reversioner.

(y) Bowle's Case, 11 Co. 81b; Garth v. Cotton, 1 Ves. 524; 1 W. & T. L. C. 674; Whitfield v. Bewit, 2 P. Wms. 240; 3 P. Wms. 266; Bagot v. Bagot, 32 Beav. 509; 33 L. J. C. 116; Chelmsford, L. C., Seagram v. Knight, L. R. 2 Ch. 632; 36 L. J. C. 310.

(2) Ante, p. 23; Pigot v. Bullock, 1 Ves. jun. 479; per cur. Gent v.

Harrison, Johns. 517; 29 L. J. C. 70.

(a) Perrot v. Perrot, 3 Atk. 94. (b) Ante, p. 23; Pyne v. Dor,_1 T. R. 55; Re Barrington, L. R. 33 C. D. 527; 56 L. J. C. 177.

(c) Jessel, M. R., Honywood v. Honywood, L. R. 18 Eq. 311; 43 L. J. C. 652; Lushington v. Boldero, 15 Beav. 1; 21 L. J. C. 49.

the timber (d). So where the tenancy for life in possession Timber trees. and the ultimate reversion were vested in one person, subject to intervening interests, he was restrained from cutting timber for his own benefit to the exclusion of other persons intermediately interested (e).

trees not

timber.

"As to the property in trees not timber, that is, those Property in which are not timber either from their nature or because they are not old enough or because they are too old, the property is in the tenant for life. If he cuts them down wrongfully and commits waste, the property is still in him though he has committed a wrong and would be liable to an action in the nature of waste" (f).-Where a lessor entered upon the demised premises and cut down oak pollards which were unfit for timber; it was held that the property in the trees cut vested in the tenant (g). And where a hedge was cut by a stranger, it was held that the property in the cuttings belonged to the tenant and not to the landlord ().

By the general rule of the common law timber severed Trees severed by wind or other accident, also timber severed by a accident. by wind or trespasser, become the property of the person entitled to the first vested estate of inheritance, in fee or in tail; unless the tenant in possession be unimpeachable of waste, in which case the timber so severed vests in him, as being entitled to cut it himself for his own use during his tenancy (). Trees, other than timber trees, severed by

(d) Garth v. Cotton, 1 Ves. 524; 1 White & T. L. C. 623.

(e) Williams v. Duke of Bolton, 1 Cox, 72; 3 P. Wms. 268, n; Birch Wolfe v. Birch, L. R. 9 Eq. 683; 39 L. J. C. 345.

(f) Honywood v. Honywood, L. R. 18 Eq. 311; 43 L. J. C. 652, Jessel, M. R. who added, "I am not sure that would follow in equity, my impression is that equity would say that he should not be allowed to take the benefit of his own wrong, and that he should not be allowed to take the

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