The case was affirmed on the opinion delivered by Lowrie, J., in the District Court, which was as follows: —
It is insisted that the devise to the widow of the “right and title” of the land during her life, is something more than an ordi*327nary life estate, and that the widow has a right to exercise as full control over the land, the mines within it, and the trees upon it, during her life, as the testator himself could have done, restrained only boni arbitratu, and that she is not impeachable for waste in the exercise of any proper discretion as to the use of the land.
This is perhaps the distinction of the civil law, wherein the rights of the usufructuary and the farmer (colonus) are very different. The usufructuary had a right to seek for and open every kind of mines, stone and lime quarries, chalk pits, and gravel banks, if he did not thereby occupy a necessary part of the fields, and did no injury to the culture of the ground: Dig. 7, 1, 13, 5.
And this would seem to be not inconsistent with the ancient common law of England, for by it, tenants for life and years were without restraint for waste, as we find in all the early books from Doctor and Student 102, 3, 7, 13, downwards; 2 Inst. 299, 5 Co. 13 b, 4 Co. 626, 6 Co. 43 a, 3 Com. 483.
They were first made liable for waste by the statute of Marlborough, 52 Hen. 3, cap. 23, s. 2. But this statute applies in its terms to farmers only, who are lessees rendering rent. This statute is not reported to be in force in Pennsylvania. But the statute of Gloucester, 6 Ed. 1, c. 5, is. Yet this would seem to be intended only to furnish a more adequate remedy for the wrongs declared by the statute of Marlborough: Rob. Dig. 9; 1 Cruise Dig. 135.
Looking therefore at the old common law and the statutes in alteration thereof, the argument of the defendant’s counsel would seem to be not without plausibility. But when we turn to the decisions on the subject, we do not find that any such distinction is made between lessees for life, and other tenants for life. All the English authorities treat the subject as if the statutes extended to all kinds of tenants, and this is taken for granted in Woodman & Good, 6 W. & Ser. 169.
And the old authorities, beginning with Boctor and Student 113, go upon the assumption that what is waste in one tenant is waste in another, on the maxim that “ all cases like unto other cases shall be judged after the same law as other cases be.” Yet in the modern eases there may be some distinction taken; the privilege allowed being more liberal to tenants for life, than to lessees for years. This is more clearly marked in the American cases, allowing tenants for life the privilege of cutting down timber in order to improve the land and fit it for cultivation. This, of course, increases the power and the profit of the tenant for life, and diminishes the control of the remainder-man. Yet this is subject to the rule of good husbandry, and does not violate the principle that the substance of the land is not to be taken away.
But as to all tenants for life, the rule has always been that the working of open mines of all sorts is not waste. The tenant for life has the usufruct of the whole land, and takes the whole profit *328that can he derived from it in following out the use made of it by the donor. A nursery garden may be still used as such, though usually it is waste to sell trees and shrubbery. And the tenant for life is not at all limited by the extent of the use made of the -property by the author of the gift. The law draws no such distinction, and we cannot follow the plaintiff’s counsel in the view taken by them.
It seems in this case that the author of the gift had sometimes sold coal out of these pits, but I do not conceive this to be material. It is sufficient that he opened them and derived any profit from them, even if it were only fire bote. The fact of his opening the pits made the coal a part of the profits of the land, and the right to them will pass as such by a devise of a life estate. If he meant otherwise, he should have said so; not having said so, this is the legal influence of his intention. And on this subject there is no conflict in the decisions: 5 Co. 12; 1 Brown 241; Cr. Eliz. 683; (Sander’s case,) Co. Litt. 54 b; 1 Taunt. 402, 409, 410; 2 Beav. 466, (Clavering v. Clavering,) 1 P. Wms. 389, and Mosely 219; 1 Cowen 460; 1 Rand. 258; Styles 68; 10 Pick. 460; 6 Munf. 124; 2 Southard 552; 2 Green’s Chan. Reps. 469, Rutland’s case, 1 Lev. 107; Sid. 152; 1 Rep. 557.
And the decisions refer to coal mines, gravel banks, clay pits, lead mines, iron mines, stone quarries, slate quarries, salt works, and the tenant for life may work them, even though the working of them may have been discontinued before the death of him through whom the estate comes: 1 Taunt. 410. And if necessary to the proper working of them, to make new openings in the ground; these are allowed, provided no unnecessary injury be done thereby: 1 P. Wms. 389; 1 Rand. 258; 10 Pick. 460; 6 Munf. 134.
The most obvious inference would seem to be, that when a man devises land with an open mine upon it, to a person for life, he intended the devisee to derive profit from the mine, as well as from the surface of the land. He may not have supposed that the devisee would exhaust the mine, and this might seem unreasonable. But when the donor did not see proper to restrain the gift, how shall it be done ? Surely courts have no such control over the arrangements which people choose to make of their affairs. Usually an enterprising tenant for life may be of advantage to the remainder-man, but in the case of mines it may be the reverse. And I cannot see how the enterprise of the citizen is to be restrained by judicial process. If we could get ourselves freer from the notions derived from feudal subordination, we would perhaps think that the privileges of tenants for life should be enlarged rather than restrained, and that the cultivation of the country would be thereby improved.
The only case I find that seems to favor the distinction insisted *329on by the plaintiff, that the privilegé is to use and not to sell, is a case in the Year Books, 17 Ed. 3, 7 Vin. Ab. “Waste” H. pt.1.
Then as to the cutting of the timber, the plaintiff has lived close beside these works and for ten years has witnessed all that was going on, and I do not think that the loss of the timber used in carrying on the works has been the cause of his present tardy activity. I know that it has been said that a lease of mines does not give a right to timber to work the mines: Darcy v. Askwith, Hob. 234; S. C. Hutt 19; 2 Bulst. 279. But in cases of life estates in lands, with mines in them, the contrary has been held: 6 Mun. 134; 2 South. 552; 2 Green’s Ch. R. 469.
I think therefore that we should not retain this bill, either on account of the coal or the wood, and it is dismissed. Bill dismissed.