delievered the following concurring opinion on the first decision of the case.
I concur specially in the conclusion reached in this case. I deem it unnecessary to enter upon any discussion of the general principle whether an action of waste is predicable of a tenancy for years, whether for one or ninety-nine. I base my conclusion upon the language of the statutes germane to this'matter, upon the uniform construction placed thereon, and the unbroken practice heretofore existing. In my opinion it was clearly the intention of the legislature, in enacting the act of 1833 and all subsequent statutes dealing with this matter, to vest in the purchaser of the sixteenth section school lands as full and complete ownership as if the title was in fee, subject, only, to the condition that the holding was to terminate at a specific date. In plain words, while the letting was termed a lease, it was in truth intended to operate as a fee determinable at the end of ninety-nine years. To this extent I agree with the opinion of the court, and for this reason concur in the conclusion.
Whitfield, O. J., dissented.After the delivery of the foregoing opinion a suggestion of error was filed by Longino, Willing & Wilson, solicitors for the appellee, and after consideration thereof, the case was decided a second time and the following opinions read.
Mayes, J.,delivered the opinion of the court on the second decision of the cause.
This cause was decided at the last term of court by a majority court; Whitfield, 0. J., dissenting. Subsequently a suggestion of error was filed, and the case is now before the court on this suggestion of error.
The board of supervisors of Harrison county filed a bill in the chancery court against the Moss Point Lumber Company, seeking to enjoin it from cutting down and using the timber on a sixteenth section of. school land. The substantial allegations *514of the bill are that on the 7th day of August, 1882, the board of supervisors of Harrison county, acting on a petition of a majority of the inhabitants of township 2, range 12, of said county, wherein is located the particular section in controversy, leased the sixteenth section, for a period of ninety-nine years, to one Margaret O. Thomas. The bill further alleges that appraisers were appointed, as was provided by law, to appraise 'and value the leasehold of the sixteenth section for the term. The appraisers, pursuant to their appointment as aforesaid, viewed and appraised the value of the term for said section, and fixed same at $835, which said sum was paid or .secured by the said Margaret C. Thomas in the manner required by law. The bill further alleges that the valuation made by the appraisers .was based and calculated on the quantity and quality of the merchantable timber standing and growing on the section, and that the land leased, by reason of the character of its soil, is unfit for cultivation, and the only value it possesses is given it by the merchantable pine timber growing thereon. The bill further alleges that Mrs. Margaret C. Thomas has conveyed to some other person or persons, who- have conveyed same to defendant company, so that, on and since the 1st day of April, 1905, the defendant has become, and is now, the owner of the unexpired term of whatever estate or interest was created thereby and vested in the original lessee. The bill then alleges that the Moss Point Lumber Company has, since the 1st day of April, 1905, entered on the said sixteenth section by virtue of this lease, and has cut down and carried away a large number of pine trees growing thereon, and is now engaged in illegally and wrongfully cutting and removing the merchantable pine timber therefrom, and, though notified by the complainant to desist, has declared it to be its purpose to cut and remove and manufacture into lumber all the merchantable pine timber on said section; that defendant is not cutting and removing the timber with *515the intent and purpose of clearing the land for cultivation, but the timber is being cut for commercial purposes solely and to be used in its lumber business, and that said cutting is waste and injurious to the reversionary estate of the public therein; that, if the defendant company is allowed to continue, the estate or interest of the trustees in the township, at the end of the term, will be of no value, and the. injury and damage which will be done to the land by the removal of the timber is irreparable and impossible of ascertainment; that defendant company is of doubtful solvency, and a judgment at law would be valueless to the trustees as custodians of said land. The bill concludes with a prayer for an injunction to restrain the defendant company, or its agents or servants, from cutting and removing any of the pine timber from said section for commercial purposes, and for an accounting, under the direction of the court, of the timber and value of trees cut from the section, and for a decree in favor of the complainants against defendant for said sum and for perpetual injunction. As an exhibit to the bill, plaintiffs filed the lease, which we here set out in full: “The State of Mississippi, Harrison county. I, F. B. Hiem, president of the board of supervisors of Harrison count, Mississippi, by authority of said board and in pursuance of the statute, hereby lease to Mrs. Margaret C. Thomas and her representatives and assignees, the sixteenth (16th) section, in township two (2 south, of range twelve (12) west, containing 610 acres (being the section of land in said township two south, of range twelve west, reserved for the use.of the public schools in said township) for and during the term of ninety-nine years from the date hereof; the said Mrs. Margaret 0. Thomas having been the highest bidder at a public sale of said lease of said section of land made at the door of the courthouse of said county, within legal hours, on the 7th day of August, A. D. 1882, by direction of said board of supervisors, on petition of a majority of the resident heads of families of said township, *516report of appraisers on oatli, and due and legal publication of notice of sale, on said day. This lease is made for and in consideration of the sum of eight hundred and thirty-five dollars, payable in equal installments, on one, two, three and four years, with interest at the rate of ten per cent per annum, on said sum, for which said Margaret 0. Thomas, aforesaid, has executed and delivered.her four certain promissory notes, payable to F. B. Iiiern, president of the board of supervisors, and his successor in office, all dated this seventh (7th) day of August, A.l). 1882, and each for the sum of $208.75, bearing interest at the rate of ten per cent per annum from date, until paid, and payable, respectively, in one, two, three and four yeays after date; it being distinctly understood that said promissory notes, with interest which may accrue thereon, shall operate as a lien and special mortgage on said land herein described and leased, until the' final and complete payment of said sum of $835 and all interest. Witness my signature this 7th day of August, 1882. F. B. Hiern, president board of supervisors Harrison county.”
A demurrer was filed to the bill, stating the following grounds of demurrer: First, under the facts alleged, the right to cut and remove the timber from the land was contemplated by the lessors and lessee, and defendant, as lessee, was entitled to cut and remove the same; second, that the title to said timber was, under the lease, vested in the original lessee, and in the defendant as holder and owner thereof; third, it appears from the bill that the unexpired term, was of no value other than the timber thereon, and the appraisal of said leasehold interest was based upon the timber alone, and, therefore, the complainants were estopped to deny said lessee the right to cut and remove the same; fourth, there is no equity in the face of the bill as against the defendant.
In the consideration of this case, the first question to be settled is the classification of the estáte conveyed to appellants; *517that is to say, is it a freehold, a leasehold, or a life estate? It would seem that the mere examination of the conveyance under which appellants claim would conclusively show that the class of their estate is a leasehold for the term of ninety-nine years. The statute under which the conveyance is made provides only for a lease; the instrument making the conveyance recites in the face of it that it is a lease; the only power granted under the law to the trustees of the school lands is the power to lease; and it would seem that any discussion as to the kind and character of estate which appellants obtained by this conveyance would be idle waste of time. Laws Miss., 1818, p. 201; Laws Miss. 1824, p. 17; Laws Miss. 1833, p. 452; Code 1880, § 732. The determination of the rights of appellants must necessarily be governed by the kind and character of conveyance under which they hold. When an estate is an estate for years, pure and simple, does it differ in its characteristics, when it is for a long term, from an estate for years, which is of short duration?
The original oinnion in this case says: “By universal understanding, the lessee for ninety-nine years of sixteenth section lands acquired all the rights of an owner in fee for the time. The long time, the public necessity for clearing, the fact that practically the whole state was forest, the uncertainty of the future, the absence of any provision for liability of the appellants of any sort, . . . gives to these lessees the rights of an owner in fee for the time.” Again, the original opinion states that: “The statutes of Marlbridge and Gloucester are nullified so far as our state is concerned, and are not the law of this state as applicable to a ninety-nine-year lease of school lands, which we are considering.. On this we are driven to the common law existing before those statutes, and which, by all the decisions, is the law here, so far as is suitable to our conditions at the date of the contract.” Again, the court in its original opinion says: “Our view is that the lease, in view of the conditions *518existing in 1833, the course of legislation, the terms of the act authorizing it, and the understanding of the people for seventy years, was intended to convey and did convey absolute ownership for ninety-nine years.”
We desire to call attention to the fact that the statutes of Marlbridge and Gloucester were passed nearly 600 years ago, for the purpose of relieving what was then considered a hardship on the lessors of land. It will also be observed, that the statute of Marlbridge provided that a tenant should forfeit single damages for waste, and the statute of Gloucester, passed afterwards, provided that the tenant should forfeit treble damages and forfeit the estate. We call attention to the characteristics of these statutes, which we will treat of in this opinion later on.
It will be notice that the court in its original opinion makes its conclusion of law applicable only to a ninety-nine year lease. We are unable to see how this distinction can be drawn, or to agree with this view, or concede that any different law is •applicable to one estate for years than applies to all estates of the same kind. Lot us examine the law on this subject. The length of time for which a lease is to run never can change the principle which governs the kind and character of the estate conveyed. If an estate cán be made to endure for 1,000 years, it is none the less an estate for years, and none the less controlled by the principles which govern the class of estate to which it 'belongs. For the above-announced principles we cite: 1 Tiffany, secs. 36, 84; Goodwin v. Goodwin, 33 Conn., 314; Ware v. Washington, 6 Smed, & M., 737; Dillingham v. Jenkins, 7 Smed. & M., 479; Gay, Administrator, 5 Mass., 419 Cooley’s Blackstone, vol. 1, book 2, p. 142; Spengler v. Stanler, 1 Md. Ch. Dec., 36; Faler v. McRea, 56 Miss., 227; Webster v. Parker, 42 Miss. 471; Washburn’s Real Property; Whitmire v. Wright 58 Am. Rep., 724. In commenting on the authorities cited above for the purpose of showing that a lessee *519of land for ninety-nine years is in the same class in all respects under the law with any other tenant for years, and that the lease for ninety-nine years is controlled and governed by the same principles, and that in no instance, however long may be the lease, can any right in the fee pass by a mere lease, I desire to call special attention to some of the cases cited above.
In the case of Goodwin v. Goodwin, 33 Conn., 314, a widow claimed her right of dower in a nine hundred and ninety-nine-year lease, and the court said: “If an estate for so long a term of years can be regarded as real estate, then dower should be allowed; otherwise not. The general principle is that an estate for years is less than a freehold, and is nothing more than a chattel real, and is classed as personal property. Does a long term of years stand upon different ground in this respect from a short one? Of course, the value of the reversionary interest depends upon the length of time the estate is to continue, and such value in the. present case is exceedingly small, too small for any substantial benefit; but does the difference in the value or reversionary interests make any difference in the principle? If this estate had been created nine hundred and ninety-nine years ago, it would be conceded that Horace Goodwin would have had only a chattel interest. Tf, then, at the commencement it is to be regarded as a fee simple, at what time will it change to chattel real? The claim of the plaintiff involves the necessity of fixing time, and the absurdity of holding that immediately before the time shall arrive the estate will bo a fee simple, and immediately after a chattel interest merely. We are unable to discover any difference in principle in this class of estates, whether they are to endure for a short or a long period of time, and we are satisfied that no distinction can be found in the common law.” The case quoted above is strikingly applicable to the case under consideration, when it is sought to give a lessee for ninety-nine years the rights of a fee simple owner, by calling his lease a fee *520determinable at the end of ninety-nine years, as is stated in the concurring opinion. This authority clearly shows that in no lease can there enter any of the rights of ownership in fee. The case of Gay, Administrator, 5 Mass., 419, was also in regard to a lease for nine hundred and ninety-nine years. In this case an administrator filed a petition in the probate court, alleging that the personal estate of the decedent was insufficient for the payment of debts, and prayed for license to sell real estate belonging to the decedent for that purpose. The real estate consisted of land belonging to the deceased under a lease for nine hundred and ninety-nine years, and the court held that the lease was not land, but personal property.
But we have more direct authority than the authorities above quoted, and we merely use them for the purpose of showing that, where the period of lease was for nine hundred years longer than the lease in thp case under consideration, it was nevertheless held to be governed by the same characteristics as governed all estates for years, and an estate of no higher right or dignity was created by phe nine hundred and ninety-nine-year lease than was created in a lease for a shorter period of years. The thing, after al|, is that it is a lease for years. In the case of Ware v. Washington, 6 Smed. & M., 741, in speaking of a lease of the sixteenth section lands in this state, the court says: “The lease for ninety-nine years was but a chattel title. The dower is a freehold estate, which never can be carved out of an estate for years, A lease for any definite period is a lease for years. A lease for one year and a lease for ninety-nine years create an estate of the same dignity.” The case above quoted was decided in 1846. The same principle is repeated in the case of Dillingham v. Jenkins, 7 Smed. & M., 479, and deals with the sixteenth section lands in the state of Mississippi. The case last above cited was before the court twice; first in Montgomery v. Dillingham, 3 Smed. & M., 647, and again in the report cited ajiove. Justice Sharkey, delivering *521tbe opinion of the court in both cases, said: “A lease of ninety-nine years is of no higher dignity than a lease for a term of one year.” "To the same effect will be found the decisions and text in all the cases cited above. We might go on and multiply authorities without limit, holding that, when a lease is the thing granted, it matters not whether it be for one year or for ninety-nine years, it belongs to the same class and is controlled by the same principle as the law governing all other estates for years, however long or short they may be, conclusively showing that any idea that a lease for a long period of years carries with it any part of the fee, is in opposition to all authorities on the subject.
We now turn our attention to the question as to whether or not a tenant for years is liable for waste. Independently of the statutes of Marlbridge and Gloucester, and independently of whether or not they form a part of our common law, we think this question is as firmly settled and buried in our jurisprudence as any principle of natural right can sink itself in the jurisprudence of any state. Whenever this question has arisen in this state it has been decided in the affirmative. It was so decided in the Gans case, 80 Miss., 16 (s.c., 31 South. Rep., 539) ; Walton v. Lowrey, 74 Miss., 487 (s.c., 21 South. Rep., 243); Learned v. Ogden, 80 Miss., 769 (s.c., 32 South. Rep., 278; 92 Am. St. Rep., 621) ; Cannon v. Barry, 59 Miss., 289. The Gans case is the most recent and accurate announcement of this principle. The question cannot be considered an open one in this state. Any tenant for years, it matters not how many years his tenancy may run, is liable for waste when he does those acts which are defined as waste, determined by the conditions and circumstances which exist at the time when the acts are committed. Any contrary holding would shock common understanding of the law. It may be stated that it is a universal rule in this country that, unless exempted by the terms of the lease from responsibility for waste, a .tenant is *522responsible for voluntary waste, whenever committed. This statement of the law is laid down in Encyc. of Law, vol. 30 (2d ,ed.), p. 259, and it is there stated that such is the law in Georgia, Illinois, Indiana, Maryland, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Rhode Island, Virginia; and we might add that the result of our investigation shows many other states not named in the Encyclopaedia of Law. United States v. Bostwick, 94 U. S., 53 (24 L. ed., 65); Bullitt v. Musgrave, (Md.), 3 Gill, 31; Belt v. Simkins, 113 Ga., 894 (39 S. E., 430). We do not hold that the statutes of Marlbridge and Gloucester have any intrinsic force as statutes in this state, but we do hold that the principle announced by them over 600 years ago, making a tenant for years liable for waste, is a part of our law at this time. These statutes have been enacted, in a modified form, in nearly every state in the union, and in those states which have not passed statutes upon this subject the principle announced, making the tenant liable for waste,- nevertheless enters into their jurisprudence. Over six hundred years ago the rule exempting the tenant from waste was considered harsh and unjust towards the lessor, and the very purpose of these statutes was to relieve the law from this species of wrong. To say that this principle has not been adopted as a part of our jurisprudence would be to say that our courts and laws have not kept pace with the development of the law in extracting from it just rules of right. This principle of holding the tenant liable is not only one of natural right and justice, but it is thoroughly in keeping with our institutions, enlightenment, and circumstances, and has been held to be the law every time the courts have been called upon to pass on the subject.
It is held in many of our decisions that the common law is the law of this state, as far as it is adapted to our institutions and circumstances, when not repealed by statute, or varied by usage which long custom has superseded. Vicksburg & Jack*523son R. R. Co. v. Patton, 31 Miss., 156 (s.c., 66 Am. Dec., 552) ; Green v. Weller, 32 Miss., 650. It is stated in the original opinion that “it is immovably fixed in the law of Mississippi that no statute ever enacted in Great Britain has any force here, unless re-enacted by our legislature.” In support of this proposition the court cites Jordan v. Roach, 32 Miss., 481; Boarman v.. Catlett, 13 Smed. & M., 149; Ingram et al. v. Regan, 23 Miss., 213. We do not take issue with this announcement of the law as an abstract proposition, but we do say that a principle of law, passed by an English statute over 600 years ago, announcing a wise and just rule of conduct, is not to be renounced simply because it made it's appearance first in an English statute, when it is suited to our -circumstances and conditions, and adjustable to the policy of our law, and when it has been recognized as the common law by such universality of authority. As a matter of fact this lease was made in 1882 under the code of 1880, and it is governed by the law as it existed under the code of 1880, and the statutes cited by counsel have no bearing on the construction of this lease. The lease was made in conformity to sec. 132 of the code of 1880. By section 3 of the code of 1880 it is expressly provided that all “acts and parts of acts, the subjects whereof are revised, consolidated and re-enacted in our revised code, . . . shall be,, and the same are, hereby repealed.” The subject of the school lands had been revised and remodeled by the code of 1880, and for' that reason this' lease is governed by the law contained in the code.
The acts of 1818 and 1824 contained a special injunction against the tenant committing waste. The act of 1833, amendatory of the acts just quoted, and all succeeding laws, are silent on this subject. In the argument of counsel much time is devoted in an effort to show that, because the statute succeeding the 'acts of 1824 was silent as to waste, the tenant could therefore deal with the property as an owner, and was not liable *524for waste. We think we have shown by the authorities already cited that a lessee of land, it matters not for how many years, is liable for waste as an incident of the character of the estate which he gets. No statute was needed to create this liability, and the insertion in the act of a clause making the tenant liable for waste is surplusage and unnecessary, and might be omitted from any succeeding statute without affecting his liability therefor. It was doubtless intended by the legislature to impose upon the trustees the duty of actively seeing to it that the tenant committed no waste. In all leases a tenant was liable for waste, but the lessor was under no duty to bring an action against him. He might do so or not, as suited him. In the case of the public school lands it was the purpose of the legislature to convert this right, which every lessor had against his tenant, into a duty which the trustees of the school lands owed to the public in seeing to it that no acts of waste were committed. When the legislature used the language that the lessees should be vested with “the right, title, use, interest, and occupation of said, section,” it used the language in connection with the character of the estate which was authorized to be conveyed, which was a tenancy for years, a leasehold estate. It meant to convey, and did convey, only such right, title, use, interest, and occupation as went with the kind of estate conveyed. The whole act must be construed together. The parts of it cannot be separated and make the act mean a different thing from that which the whole act shows was intended. There is no authority given in the statute to do anything but lease this land. No person reading this statute could possible be misled, into the supposition that he was getting a fee, when the statute said that it should be a lease, and when the conveyance made by the trustees only purported to be a lease. The very purpose of the legislature in saying that the land should be leased was to measure certainly the rights which every party 'taking' the lease should get by the kind and character of conveyance which *525they authorized to be made to him. A lease has an accurate, definite, ■ certain legal meaning, and by this legal meaning the rights of the lessees under this statute must be measured. Because this is public land, and because the lease is for ninety-nine years, and because the parties authorized by law to make the lease are public officers, no greater or different rights were conveyed by the lease than if it had been made by private parties for any number of years.
In the former opinion it is stated that the act of 1833 repealed the act of 1824 in reference to its provisions against waste; that it was found utterly impracticable to make the lease with the prohibition against waste in the law, except in scattered instances where the lands were near the towns. As we have stated above, this prohibition against waste, placed in the acts referred to, was unnecessary in so far as it created any right to proceed against the tenant for waste. This act but declared the law upon that subject which was then in existence. Without it the lessor had the right to proceed, and with it no new right was given him. But we do not agree with the former opinion of the court in this regard for another reason. It will be noticed that in the act of 1818 a lease could only be made for three years. The act of 1824 changed this, and increased the period of the lease to five years. The act of 1833 changed both acts in this particular, and authorized a leasing for ninety-nine years. We conclude that if leases could not be made under the acts of 1818 and 1824, as stated in the former opinion, it was not because of the prohibition against waste, but because of the short term the leases were to run, and it was for the purpose of increasing the time that the act of 1833 was passed.
It is alleged in the bill that the appraisal of the leasehold value was based upon the quality and quantity of merchantable timber. This allegation of the bill is not sustained by the lease, which is filed as an exhibit to the bill; nor did the statute *526authorize any lease based upon the quality and quantity of merchantable timber. Where the exhibit-filed contradicts the bill, this court has repeatedly/held that the exhibit alone could be looked to.
The next question which we will consider is the question of what constitutes waste. Waste is defined to be any substantial injury done to the inheritance, by one having a limited estate, during the continuance of his estate. By universality of authority the cutting of timber for commercial purposes by a tenant for years is waste. We may safely say that there are hardly any authorities to be found in conflict with this statement. 1 Tiffany, sec. 249, p. 564; Warren County v. Gans, 80 Miss., 76 (s.c., 31 South. Rep., 539); Taylor on Landlord and Tenant, sec. 353, p. 271; Tiedeman on Real Property, sec. 69; Lester v. Young, 14 R. I., 579; Davis v. Clark, 40 Mo. Alpp., 515; Smith v. Smith, 105 Ga., 106 (31 S. E., 135); Davis v. Gilliam, 40 N. C., 308; 1 Washburn on Real Property, secs. 275, 276; Proffitt v. Henderson, 29 Mo., 325. When the authorities cited above ar£ examined, there will be found many references to authorities not cited in this opinión.
What rights have tenants for years ? The answer to this^ question can be placed in no better language, or more accurate expression, than the rule laid down in the Gans case: “The rigid rule of the common law that a tenant of a particular state could not cut timber, except for estovers only, is in many jurisdictions modified, so as to allow him to cut off timber for clearing so much of the estate as the needs of his family may require for their support, though the timber be destroyed thereby. And he may clear for cultivation such portions of it as a prudent owner in fee would clear for that purpose, provided he leaves enough timber and wood as may be necessary for the permanent use and enjoyment of the inheritance. His right to open and clear for cultivation wild and uncultivated land is that of a prudent owner, having regard to its amelioration *527as an inheritance. When the particular tenant cuts timber in the process of clearing the land for immediate cultivation, he can appropriate it or its proceeds to his own benefit; but he cannot cut the timber for sale without making himself amenable for waste. When, the timber is cut by the tenant or others unnecessarily or unlawfully, the right of the reversioner or remainderman at once attaches, and he may bring an action on the case in the nature of waste for his damages, or he may bring trover or replevin for the timber severed from the inheritance.” The rule announced in the Gans case is but an affirmation of settled authority. What constitutes waste is determined by the consideration as to whether or not the act done results in injury to the inheritance. 1 Tiffany, sec. 247. In the original opinion it is held that “twenty years’ growth is held to constitute timber. Who can say, therefore, in this case, that the interests of those who will come after will be harmed by removing the timber?” Courts do not undertake to deal with speculations of this kind, or reckon with possibilities. They are confined to legal rights, which exist at the time they are called to act on them. Whether or not an act on the part of the tenant is waste is determined by the facts and conditions which exist at the time the act is committed.
It must not be forgotten that the only title these lessees hold is that of a tenant for years. Their estate is stamped with this character at the instant of its creation, and it lasts throughout the entire period of tenancy, in whomsoever the tenancy may exist. Every instant of time, during the continuance of the tenancy, the tenant must conduct himself as a prudent owner of the fee in the exercise of good husbandry. If at the beginning of this lease the timber had been valueless and the tenant had destroyed it, he would not have been guilty of waste. If the timber had stood upon the land, and the tenancy had been in existence for forty years, and the timber, from being valueless, had become valuable for commercial purposes, and the *528tenant should undertake to destroy it, or cut it for purposes of sale, or use it beyond such measure a,s a tenant for years might lawfully use it, he would be guilty of waste. He must conduct himself as the prudent owner of the fee, in the exercise of good husbandry from the beginning of the tenancy to the end, and in the light of facts which may develop a value in that which had no value at the beginning of this -term. The exercise of good husbandry to-day cannot be measured by what would have been good husbandry twenty-five years ago. But the conduct of the tenant towards the estate, as to whether or not his acts constitute waste, is determinable by the facts, circumstances and conditions which exist at the time the alleged act of waste was committed.
It is argued in this case that because of the allegation in the bill that the nature and character of the soil makes the land unfit for cultivation, and that its only value consists in the merchantable timber standing on it, it was intended for the lessee to use it for that purpose. In answer to this we state that the usual purposes for which lands are leased are agricultural purposes, and, unless the contrary be stipulated in the lease, the lease of the land carries with it only such rights as go- with ordinary leases. The original lessees of the land were the best judges of what use the land could be subjected to, and in taking the lease they are conclusively presumed to have taken it with such rights as go with a lease of land, and the right to cut and sell the timber is not such a right as goes with the lease. In this connection we quote from the opinion of Chief Justice Burkin., in the case of Davis v. Gilliam, 40 N. C., 310, which was a bill filed to restrain waste. The court said: “It is certainly proper, in cases of this kind, to have a view to the spirit and reason of the common law; and therefore many things that constitute waste in England, and may hereafter do so here, because prejudicial to the inheritance, ought not to be so held here at present, because they do not prejudice, but rather improve, the *529inheritance. Hence, turning woodland into arable, though the timber felled be sold, is not absolutely waste in our law; for cutting timber on land fit for cultivation, or that may be made so, and reducing it to that state, may, in the condition of our country, be a benefit, rather than an injury, to the reversioner. If this swamp be of the fertile quality, it might add greatly to the value of the inheritance to take off the whole of. the timber, if the tenant would go on by embankments and ditches to prepare the land for crops. The rules, therefore, of the common law, determining what is or is not waste, are not entirely applicable to the condition of things here. But the principle on which these rules were formed applies here, as, indeed, it does everywhere; for it is founded in the nature of justice itself. It is that a tenant for a limited period, or a particular estate, cannot rightfully so treat the estate as to destroy the value of the reversioner, or materially reduce it below what it should be; regard toeing had merely to the postponement of the enjoyment. The- tenant may use the estate, Tout not so as to take from it its intrinsic worth. . . . We should hold, as the state of the country now is, that a tenant for life of land, entirely wild, might clear as much of it for cultivation as a prudent owner of the fee would, and might sell the'timber that grew on the part of the land. Clearing for cultivation has, according to the decisions, peculiar claims for protection; and a sale of the timber from the field cleared may be justly made, in compensation for clearing and bringing it into cultivation. But it seems altogether unjust that a particular tenant should take off timber without adequate compensation to the estate for the loss of it. Nor he takes in that case, not the product of the estate arising in his own time, but he takes that which nature has been elaborating in all ages, being a part of the inheritance itself, and that, too, which imparts to it its chief value. . . It is said, however, that, unless he be allowed to take some of the timber, his estate will be of no *530value, when the land is swamp, not fit for cultivation, or that cannot.be made so without great expense in drains and dikes. This could not alter the principle.” This same reasoning is rejoeated in 29 Mo., 325, and in Thurston v. Mustin, Fed. Cas. No. 14,013. In Davis v. Clark, 40 Mo. App., 515, it is held that a tenant cutting and destroying timber, not for firewood, rejoairs to joremises, or cultivation, but for converting it into ties for market, was committing waste; and to -the same effect are the other cases and authorities cited. The cutting of timber on this land by the lessee, under the conditions alleged in the bill, is a substantial injury to the inheritance, and therefore waste. We cannot improve upon the rule laid down in the Gans case.
We have approached the consideration of the suggestion of error with the greatest deference and respect for. the former opinion rendered herein. But wc have no hesitancy in announcing our conclusion that the opinion of the court was wrong. We feel strengthened in this opinion by the fact that the Gans case was decided in 1902, after the fullest argument, by a unanimous court, our distinguished associate Justice Oalhoon, now dissenting, being a member of the court at that time, and then holding the view .we now reannounce. A decision contrary to our holding would involve the necessity of overruling this decision decided a little over four years ago. When a question has been settled by this court, it should be treated as no longer open for review and investigation, unless the evil resulting from the principle established by it is manifest and mischievous. We cannot say this of the Gans case, but, on the contrary, declare it to be sound in logic, sound in law, and sound in natural justice. We are announcing no new principles of law in this case, but are simply reaffirming that which has been well settled and thoroughly accepted for a long -while. The doctrine of waste is almost as old as the law itself. Even where there is an express stipulation in the lease that the tenant should not *531be held liable for waste, the equity courts have always intervened to- protect the reversioner, where the tenant exercises his power in an unconscionable manner.
To ascertain the rights which went with the lease to the lessee, we turn to the law to seek the definition of what is meant by lease. Upon this subject the law is plain. We cannot turn from this definition to seek aid by recalling the conditions of the country which existed at the time the lease was made. We might do this, if there was a doubtful meaning in the lease; but since its terms are perfectly plain, and since the rights which go with it are accurately measured by the law, since its meaning is defined and certain, we can have no recourse to extraneous matters as the contract is free from doubt. When the legislature authorized this lease, they had the right to stipulate the terms and conditions upon which they would lease the land. Those provisions in the law which require the lessee to pay taxes and give him the right to bring suit were placed there for purposes which the legislature deemed good, and are perfectly consistent with the lease. No person was bound to lease the land; but, if he did, he was bound to take it with such burdens and such rights as was granted by the legislature. Let it be remembered in passing, that the Moss Point Lumber Company bought this timber in April, 1905, and that the Gans case, in 80 Miss., 76 (s.c., 31 South. Rep., 539), was decided in 1902, so that at the time appellant purchased it had full knowledge of the law, and bought this timber, knowing at the time that the court has held such sales to be unlawful.
All objection having been withdrawn as to the manner m which this suit was brought, at the request of counsel ive consider the merits of the case. Let the suggestion of error be sustained., and the former judgment of this court vacated, and the decree of the chancellor affirmed, and the cause remanded, with leave to answer in sixty days after mandate filed.