The court erroneously ruled that changing the estate from pasture to woodland, by the tenant in dower, by suffering wood to grow up on land which was pasture before, was waste. Pynchon v. Stearns, 11 Met. 304. As that instruction, however, was in favor of the defendant, it would be no ground for granting him a new trial.
But there was an essential error in the instructions of the court, which diverted the attention of the jury from the real issue, and tended to prejudice the defendant’s case. The justification on which they rested their defence was, that the wood, claimed by the plaintiff under his agreement with the tenant in dower, in fact belonged to the owner of the fee, because in cutting it she had committed waste. This was the only question before the jury. As the defendants were bound to establish their justification, the burden was on them to show that, in cutting the wood in controversy, a lasting damage had been done to the freehold or inheritance. But they were not bound to prove any thing beyond this. The intent or motive with which the tenant' in dower acted was wholly immaterial to this issue. A tenant for life cannot pull down buildings, cut off timber trees, or do other acts which tend to the disherison of the remainderman or reversioner, and justify them on the ground that he acted in good faith, without any purpose of permanently injuring the estate. *11Such acts, in law, constitute waste, for which the tenant for life is liable, however innocent or honest may have been the purpose with which they were done. It was therefore clearly erroneous in the judge to instruct the jury that the defendants were bound to show that the cutting of the wood by the tenant in dower was not done in good faith. Exceptions sustained,
. A new trial was had in the court of common pleas at September term 1854, at which the evidence was the same, and the defendants requested instructions similar to those asked for at the former trial.
Bishop, J.declined to give the instructions requested; and instructed the jury “ that it was a question of fact for the jury, whether the cutting of the wood was in accordance with good husbandry; that, if it was, the widow, or her servant or agent, was justified in so doing, and the defendants were liable for taking said wood.”
The jury returned a verdict for the plaintiff, and the defendants alleged exceptions, which were argued by the same counsel at October term 1855.
Shaw, C. J.Upon the facts.appearing in the bill of exceptions, the court are of opinion that, although the land was pasture when it was set off to the widow as dower, yet if she permitted it to become woodland, bearing a growth fit for timber, and it was de facto such woodland when the wood and timber were cut, such cutting was waste, in the same manner and to the same extent as it would have been, had it been woodland of the same description when it was set off to her as dower. It was wood and timber land when the timber was cut; it was held by a tenant for life; and therefore cutting timber and other wood, for purposes other than the use of the estate, for timber and fuel, by tenant for life, was waste. The wood and timber, when severed, became by law the personal property of Holden, who was the reversioner, having the next right to enter and become seised; and therefore he was justified in entering the close, and taking the wood, which was thus his property. The tenant in dower had no right, after the land had become covered *12with a growth of wood and timber by her permission, to cut it, beyond the amount required for the estate itself, even though it might have been good husbandry in an owner in fee thus to take off the wood and timber, clear up the land, and thus again bring it under cultivation. Such owner in fee would be the owner of the wood and timber, with a full right of disposing of it; but in case of the land held in dower the reversioner is the owner of the growing wood and timber, with a qualified interest in the soil, sufficient to its nourishment and growth, which right the tenant in dower cannot legally defeat. The judge who tried the cause having instructed the jury otherwise the verdict is set aside, and a New trial granted.