oil the second decision delivered the following concurring opinion.
The opinion of the court, read by my Brother IVIayes, is so thoroughly able and so completely exhaustive that' I, desiring not to go over any of the ground he has so fully covered, shall confine myself, in this concurring opinion, to as brief a statement of my views as the great public importance of the question will permit.
At the very outset I wish to concentrate attention upon that which constitutes the crux of this case — the most serious contention of learned counsel for appellant. That precise contention may be thus summarized: The insistence is that the bill avers that the only value that this sixteenth section had was the value of .the timber upon it; that the demurrer admits this to be true; that the lessee must have gotten something of value by the instrument, and if the lessee of a section of land, valuable only for its merchantable timber, cannot cut down, and sell for his own private profit, all the mérchantable timber which may be grown on the land, during the term of -the lease, he gets nothing at all practically, and that that, assuredly, could not have been the intention of the parties; that the opposite construction presents a case of such great hardship that the court ought to hold — presumably, because of’this hardship — that the lessee may so cut and sell, for private profit, all the merchantable timber on the section; that is to say, he may absolutely destroy the sole and only value that the section of land has. This presents fairly and clearly the strongest contention, to my mind, counsel for appellant urge.
Before answering this, let it be specially noted that the lease— the exhibit — controls the averment of the bill, and it is a lease of the land, not the timber merely, and there is no pretense in the lease of a lease of merchantable timber only, or of the land as valuable for the timber only, and, under our decision, the exhibit controls and limits the averment of the bill. But, *533suppose the exhibit had contained that allegation; what then? In the first place, let it be noted that not a single authority is cited in support of the proposition that a lessee for ninety-nine years may sell for profit all the merchantable timber, thus destroying the value of the reversion; destroying, in other words, the whole value of the inheritance. I think I may confidently say that not an authority can be produced to sustain this contention, in England or America. Once let it be granted that the instrument is a lease of the sixteenth section for ninety-nine years, and no more, and not an authority can be produced to show that that sort of legal instrument authorizes the sale for profit of the merchantable timber, even if the merchantable timber constitutes the whole value of the section. It will be observed that the advisory views of Judge Campbell, incorporated in the very learned and able opinion of my Brother Calhoon, take the same view of what is waste, and of the particular character of this instrument as being a lease, which the majority of the court take. Judge Campbell deems any discussion of the legislation prior to the code of 1880 out of place, because this lease was made under the code of 1880. He insists fully on the American modified doctrine of waste, which makes tenants for years and tenants for life liable to appropriate remedies for waste; these remedies residing, as he puts it, “in the breasts of the judges.” He repudiates the idea of any “determinable fee” being created by this instrument. He treats it, not as a fee of any kind, but, as it is, a plain, simple lease for the term of ninety-nine years. And the only point of difference between him and the majority, and of concurrence between him and my Brother Calhoon, plainly is, as seen from his views set out as above, that, whilst the doctrine of the Gans case is sound, whilst all our statutes provide for leases, and not sales, yet that in this particular, precise case, the lease being, not of arable land, but of land valuable alone for the merchantable pine timber upon it, the court ought, be*534cause of the hardship of the case, in order to give some benefit to the lessee, to hold that a different rule should be applied to a lease of a section valuable only for its timber from the rule which ought to be applied to a lease valuable for the soil, and therefore ought to work out of this instrument a construction allowing the lessee to cut and sell for profit all the merchantable timber on this section, from time to time, as it may grow- and become merchantable, else, says he, the lessee gets nothing. I have tried to state Judge Oampbeli/s views, and particularly this — his point of concurrence with my Brother Cali-ioon — • fairly and fully.
I think it can be shown, on principle and authority, that this view is unsound. First, as stated above, no authority is produced to sustain this precise contention; second, how is it on principle and reason ? The trouble with this view is that it is all founded in the notion of the supposed great hardship which will be imposed upon a lessee in a case of this kind if he be not allowed to cut and sell the timber for profit. The question is not one of hardship. The solitary inquiry is, what is the nature of the instrument under which the lessee claims? It has been demonstrated beyond cavil, as it seems to me, by my Brother Mayes, that it is nothing in the world but an ordinary lease .of a sixteenth section for ninety-nine years. A lease has its own peculiar and established incidents and characteristics, crystallized in it and stamped upon it by the law. This instrument leases the land for a fixed and determinate time— ninety-nine years. It calls itself a lease. Its terms show it to be a lease. Nobody ever heard of its being anything but a lease, until the argument in this case by the appellant. It is made under the provisions of Code 1880, § .§ J32, J35, which provide for nothing but a lease. The value of the land is appraised for the term of ninety-nine years — the leasehold value— and that is simply to ascertain a minimum amount for the lease, for less than which it shall not be leased, as provided in *535section 735, but the thing leased is the land. Section 732. The statute says: “Thereupon said board of supervisors shall direct that said land be leased,” and in section 734 what the lessee paid is called “annual rent.” Being, then, a mere lease for the term of ninety-nine years, of course all the incidents and characteristics of a lease at once attach to and inhere in the instrument; and it is certainly elementary learning that no lessee can ever commit lasting damage to the inheritance — can ever cut and sell all the timber, when the only value the leased land has is the value of the timber. If he could, he would by such cutting absolutely destroy the whole value of the inheritance — a thing utterly at war with any legal conception of the incidents and characteristics of a lease, and the duties and liabilities of a lessee under a lease.
But it is said, both in the view expressed by Judge Campbell and that of my Brother Oali-ioon, that this doctrine may be and is true of tenants for years of “arable lands,” but that it is not true of lands the whole value of which consists in the value of timber growing on the lands. IIow is it possible, let me ask, to draw any such distinction ? If the instrument be a lease, undoubtedly the principle that the lessee cannot destroy the value of the inheritance must apply, whatever may be the subject-matter of the lease. The widest possible range of dealing may be allowed the lessee, the widest usage and freest treatment of the subject matter of the lease, provided, always, that the value of the inheritance in the thing leased shall not receive lasting damage. The lessee knew that this was the law when he took the land. He was charged with a knowledge of that law. He doubtless advised with counsel, or ought to have done so, as to his rights under such lease.
This is demonstrated beyond cavil by the fact that appellant took this lease in April, 1905, three years after the decision in the Gans case, 80 Miss., 76 (s.c., 31 South. Rep., 539), which was decided in March, 1902. The appellant took the lease *536as interpreted in that ease, and now seeks to repudiate that case. There had been more than seventy years of usage under leases of sixteenth sections in this state. If one takes a broad view, such as ought to be taken in the discussion of this case, the reason why there never has. been, until recently, any legislation authorizing the sale of a sixteenth section, is perfectly obvious. Law is a growth, an evolution; not a thing, like Jonah’s gourd, grown overnight. It is born with the needs of the people, as those needs develop themselves. It may be crude at the outset ; but as civilization advances, and wider range of needs for citizenship is disclosed, the law applying to these varying, diverse, differing, needs, under constantly shifting conditions, itself is changed, unfolded, and adapted to these varying wants and needs of an advancing civilization. The law in respect to sixteenth sections has undergone this very evolution; this very unfolding. When these leases of sixteenth sections were provided for in early legislation, they were first made for very short terms. They are now made for ninety-nine years, since no one would have a short term. Moreover — and let this specially be noted as a historical fact, in connection with the legislation about our sixteenth sections — -when this legislation first appeared upon our 'statute books, and all along from that time until within the last ten years, these leases were almost altogether executed in those parts of the state in which the soil (the ground) of the sixteenth sections constituted its chief value for crops of various kinds. The legislature was dealing with lands valuable as crop producers, rather than 'as valuable for timber.
The former opinion of the majority of the court expressly stresses the point that, in that early time, timber was so little valued that in many instances it very largely improved the value of a sixteenth section to cut it down and to open the land to cultivation; and for that very reason the legislature, until within» the last ten years, had, as a matter of fact, been *537dealing with sixteenth sections nineteen-twentieths of which were valuable chiefly for the soil. There never had arisen the need for any law authorizing the sale of the timber on a sixteenth section. The soil of all of north Mississippi, of all of west Mississippi, and of "central Mississippi, was soil valuable for crops, rather than for timber, speaking by and large; and because that was the fact, the law, which is a growth, finding that more of value to the beneficiaries of these sixteenth sections could be had by lease of the land than by sale of the timber, provided for such leases, rather than for such sales, because the soil was valuable chiefly as a crop-producing soil. This is a fact in respect to the nature of the lands in nineteen-twentieths or more of the sixteenth sections of the state. The law, which is an evolution, a growth, an unfolding suited to the needs of the people, as population increases and the lands of the state are occupied and brought into use, grew up slowly along with this situation, and provided, hence, for such leases, and not for such sales. But within the last ten years southeast Mississippi has become an empire within itself — an empire, one of the chief sources of whose wealth is its merchantable pine timber. In some of the sixteenth sections — a very small proportion, doubtless, of the sixteenth sections — in southeast Mississippi, the timber and not the soil is the principal element of value. I do no say that, as a matter of public policy, as a matter of good judgment for the interest of the beneficiaries of such sixteenth sections, valuable solely for the timber on them, there should not be legislation authorizing, not leases only, but sales outright, of the timber of such sixteenth sections. But it is to the legislature that this argument should be addressed, not to this court. Let the intending purchaser of a sixteenth section, the sole value of which consists in the merchantable timber thereon, apply to the next session of the legislature of this state, and have the law changed, if it be thought wise so to do — as to which.I express no opinion — so as to authorize sales in fee simple of the timber *538on such sixteenth sections, within the discretion and best judgment of the authorities charged with the disposition of such sections valuable only for timber. Then there will be no difficulty. There will be no difficulty, in the first place, about such purchasers getting the fee simple, if they desire the fee simple; and there will be no difficulty, in the second place, about their being required, when they do get the fee siniple, to pay a fee simple consideration.
Can any one believe that $835, paid for this leasehold interest for ninety-nine years of this sixteenth section and all the merchántable pine timber on it — 640 acres of land — was ever dreamed of by either lessor or lessee of this land as -being the purchase price of a fee simple of this timber ? Why, certainly not. There certainly would be a hardship, as it seems to me, in holding that the lessee got the right, under this mere lease, to sell, for profit, all the timber, for the obvious reason that he would be selling as fee simple owner what he paid only a small leasehold consideration for. That, indeed, would be a hardship on the beneficiaries of the sixteenth section. . It seems to me to be curious, to be hard, to be unjust to the last degree, that a lessee who paid $835 — a pure leasehold consideration — for leasehold rights for ninety-nine years, in this sixteenth section and the 640 acres in merchantable pine timber thereon, should be allowed to get, not what his instrument calls for, a leasehold interest only, but what his instrument does not call for, the absolute fee simple. Why, why can he possibly get any more right, any larger measure of right, than the actual nature of the instrument he holds under confers ? Whenever it is known, ascertained and settled that this instrument is a lease for ninety-nine years, then this case is settled. He is a lessee for years, charged with the duty of not committing waste to the lasting damage of the inheritance, strictly forbidden by the legislation and the decision under which he holds — the Gans case, decided three years before this lease — to cut and sell for profit *539all tlie merchantable timber of such sixteenth section, even though that merchantable timber should constitute the sole value of the land. If he chose to take a lease, he must stand by the lease. It is not his to talk about hardship. He knew the law. He took under the Qans case, and, if he wishes to purchase a fee simple title to the timber, let him go to the legislature and get the authority to buy a fee simple title. This court construes the law as it is; this lease as it was written. It has no power to wrench the law to suit alleged, but really non-existing hardships. “Hard cases make bad precedents.”
Something has been overlooked in the discussion of this case, in the former opinion of the majority of this court, which to my mind is conclusive of the correctness of the views which I have just been elaborating, as the reason why there has been no legislative authority for the sale of these sixteenth sections until very recently. When our pine timber in south Mississippi and other wood became, within the last ten years, of such fabulous value, intending purchasers, knowing that they could only lease under the law as it then stood, actually applied to the legislature and secured the passage of an act (Act, February 11, 1898; Laws 1898, p. 62, c. 41), section 1 of which is as follows:
“Section 1. Be it enacted by the legislature of the state of Mississippi, that the board of supervisors in counties having control of any sixteenth section of land, or a part of such section or of another section or a part of a section taken in lieu of any sixteenth section, or a part thereof, reserved for the support of township schools, be, and they are hereby authorized and empowered to sell the merchantable pine timber and wood on such lands or to lease said lands for turpentine purposes for a term not exceeding one year.”
Here, then, we have for the first time direct legislative authority for the sale of the identical character of timber involved in this litigation, towit, “merchantable pine timber.” Such *540merchantable pine timber, found almost exclusively in south Mississippi, had only within the last ten years become of such immense value. The evolution and growth of the value of that sort of timber reached within the last decade a point at which legislative authority to sell the timber ivas thought needed; and the law, growing and adjusting itself to the needs of the situation, immediately in this act of February 11, 1898 (amended in 1904) authorized such sale. If sales of the timber are best in some cases, let the legislature authorize the sale, as it did by this act; but so long as the instrument a court is called upon to construe is by its terms a lease, not a sale, the court is bound by the highest obligation to construe the instrument as what it is, a lease, attaching to it the legal characteristics and incidents of a lease, and hold the lessee strictly to account for any lasting damage inflicted upon the inheritance. Such I submit is the view, conclusive on principle, on reason, and on a review of the history of the growth of the state, and of the legislation and decisions of the state on this subject.
But now, lastly, is there no authority on this identical question putting at rest, definitely and forever, the contention, unsupported by authority, of learned couhsel for appellant ? My Brother Mayes has referred to eleven distinct 'authorities to show -that the length of time for which leases are to run never changes the principles which cover the kind of estate conveyed. I shall now add two authorities, with which his diligent research has furnished me, on the precise, identical proposition, which I call the crux of this case, towit, that, although the price of the timber may be the sole value of the sixteenth section, the’lessee nevertheless is subject to the universal principle, governing estates for years — that he cannot commit waste, and is answerable for the value of trees so cut and so sold for profit, even in that sort of case. The first case is the case of Proffitt v. Henderson, 29 Mo., 325. In that case the precise point which I call the crux of this case was decided. The court said: “There may be *541waste where there is such profitable enjoyment, and there may be profitable enjoyment without waste. The cutting of the timber may have been necessary to the profitable enjoyment of the land according to the tenant’s standard of profit, and yet have been a great outrage upon the rights of the reversioner. . . The other objection, that there is no allegation that the land was not valuable for any other purpose except timber, is not well taken; for, if the land is valuable for timber only, it would surely be waste for a tenant to cut and carry away all the timber of value. If useful for the timber alone, the tenant must in that case, as in all others, respect the rights of the owner, of the inheritance, and his enjoyment of it must be regulated accordingly.”
The second case is that of Thurston v. Mustin, Fed. Cas. No. 14,013, where it was very distinctly held by Cranch, C. J\, that a tenant of a lease for ninety-nine years, renewable forever, with leave to purchase the reversion at a stipulated price, is liable to be restrained by injunction from cutting and selling young and green wood, where the wood constitutes the principal value of the land.” The court added: “But it is said that in such a lease, renewable forever, and with a right to purchase the reversion, the relation of landlord and tenant does not exist, inasmuch as it is in the power of the defendant to prevent the plaintiff .and his heirs from ever enjoying the reversion. But, until the defendant has actually purchased the reversion, it remains in the plaintiff, and the relation of landlord and tenant still subsists in full force.”
These two authorities are directly and squarely decisive of the affirmative of the proposition that a lessee for ninety-nine years of a sixteenth section of school land is liable for waste, although the sole value of the sixteenth section consists in the value of the timber upon it, and for the very obvious reason that the principle applies — the universal principle — that such *542liability cannot be varied by the nature of the subject-matter of the lease.
It is quite true, as stated by my Brother Calhoon, in his very learned and careful examination of the common law as to waste, that this opinion of Judge Cranch holds the statute of Gloucester, inflicting treble damages, applicable in that case, because that statute had been held to be of force in the state of Maryland. That is true; but I do not cite the case for anything it holds with respect to the statute of Gloucester. I cite it solely for the purpose stated above. It holds, as to that, precisely with the Missouri case, and both are direct and conclusive authority on the precise point which I have been thus far dis- . cussing, and these two are the only authorities referred to in the whole discussion touching upon, this identical proposition, except one other, the authority referred to by my Brother Mayes, towit, Davis v. Gilliam, 40 N. C., 308, which holds the same doctrine precisely. That case decides much more than is supposed by Judge Campbell. Its exact holding is clearly pointed out and approved in the Missouri case above referred to, at page 328. The court says “that, as the state of the country now is, 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 that part of the land. Clearing for cultivation, he [Buffin] says, has, according to the decisions, peculiar claims for protection, and a sale of the timber from the fields 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 the timber without any adequate compensation to the estate for the loss of it; for 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 through ages, being a part of the inheritance itself, and that, too, which imparts to it its chief value.”
*543I call special and emphatic attention to the last clause of Judge Rueein's opinion as quoted above: “For 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 through ages, being a part of the inheritance itself, and that, too, which imparts to it its chief value” — a statement too luminous on the precise point, and too beautiful in its style, to have been made by any other than the great and classic Rueein.
I confidently submit, therefore, that this, the strongest contention made by the learned counsel for the appellant, is clearly and incontrovertably resolved against them, first, by a review of the growth of the country, and of the legislation of the state and of its decisions, the Gms case especially, as both have regard to these sixteenth sections; second, on reason and principle; and, third, by these authorities, express adjudications on the precise, identical proposition.
I turn, now, to the opinion of the court on the former hearing. The former opinion of this court reached the conclusion it did upon two independent lines of reasoning — one based upon an investigation of the principles of the common law applicable to waste, and the other based upon an investigation of-legislation in England, and especially in Mississippi, upon that subject. Let us treat these.views separately; and, first, as to the common law. The view of the majority opinion may thus be summarized on this head: It was held that at the ancient common law tenants of those estates which were created by the act of the law were liable to impeachment for waste, but tenants of those estates created by contract of the parties, were not so liable. It was said that a tenant by the curtesy, for example, or in dower, belonged to the former class, and was liable, whereas tenants for life or for years belonged to the latter class, and were not so liable. This all rested upon the solitary dictum' of Lord Ooke, and the fanciful notion for this distinction which he gave was this: That .the law, having created the *544former estates, ought to protect them from waste, but that, the latter estates having been created by contract, the common law would not provide protection for him who might have protected himself, and did not, by a stipulation in the contract. It is not to be doubted that very many decisions and text-books can be found reiterating this doctrine; but it can confidently be said that every single decision or text-book so holding traces back to this unsupported dictum of Lord Coke. I shall look at this just a moment on authority, and then on principle. Directly the' contrary of Lord Coke’s statement was expressly held to be the law, towit, that tenants for years and for life were liable for waste at the common law, by Bracton, quite as high authority as Coke (Bracton, lib. 4, c. 18), and by Beeves in his History of English Law (vol. 2, p. 438), where he says, speaking of the statutes of Gloucester and Marlbridge: “Not that the common law had already provided no remedies in all such cases of waste; for we have before shown, upon the authority of Bracton, that a proceeding might be had for waste against a tenant in dower, and tenant for life, and a guardian.” And in note 1 it is said: “Lord Coke holds the contrary, but gives no authority for his opinion.” And Chancellor Kent— as great a name as Coke — the highest authority upon American common law, criticises Coke’s view and approves the contrary in the following language in volume 4 of his commentaries, at star page 80:
“It is frequently said by Lord Coke, in his commentaries, and it was so declared by the King’s Bench, in the Gountess of Shrewsbury’s case, that waste would 'not lie at common law against the lessee for life or years; for the lessor might nave restrained him by covenant or condition. But Mr. Beeves, who was thoroughly read in the ancient English law, insists that the common law provided a remedy against waste by all tenants for life and for years, and that the statute of Gloucester only made the remedy more specific and certain. The provision *545in the statute of Gloucester, giving by way of penalty, tbe forfeiture of the place wasted and treble damages, was re-enacted in New York, New Jersey and Virginia, and it is the acknowledged rule of recovery in some of the other states in the action of waste. It may be considered as imported by our ancestors, with the whole body of the common and statute law then existing, and applicable to our local circumstances. As far as the provisions of that statute are received as law in this country, the recovery in the action of waste, for waste done or permitted, is the place "wasted and treble damages; but the writ of waste has gone out of use, and a special action on the case, in the nature of waste, is the substitute, and this latter action, which has superseded the common law remedy, relieves the tenant from the penal consequences of waste under the statute of Gloucester. The plaintiff, in this action -upon the case, recovers no more than the actual damages which the premises have sustained.”
. Another of the highest authorities on English common law (Smith, in his Landlord and Tenant), after stating Coke’s view, pronounces it “plausible in theory, but very detrimental in practice,” and adds, at page 249, in regard to voluntary waste: “Indeed, it is obvious to common sense that what the owner of a freehold interest (life estate) is prohibited from doing, a holder of a chattel interest (a lessee for years) must be clearly prohibited frqm.” So far as authorities go, therefore, we have Bracton and Beeves and Kent squarely against Coke, and Smith criticising his notion. See, also, Butler’s note to 3 Coke on Lyttleton, p.' 266, and the authorities there collected.
The true view stated by these authorities, as shown in the quotation from Kent, was that the common law provided a remedy against waste for all tenants for life and for years, and that the statute of Gloucester only made the "remedy more specific and certain.” Kent says again, at star page 78: “It is a general principle that the tenant, without some special *546agreement to the contrary, is responsible to the' reversioner for all injuries amounting to waste clone to the premises during this term, by whomsoever the injuries may have been committed, with the exception of the acts of Gocb and public enemies, and the acts of the reversioner himself.” In other words, the true view of the ancient common law was that the general principle of the common law made all tenants for life and tenants for years liable for waste, and that the statutes of Marlbridge and Gloucester, so far as the general principle was concerned, were merely declaratory of the ancient common law, as it existed when those statutes were passed, and only provided more specific remedies against waste, so far as they contained any new matter.
Second. Iiow does Coke’s notion stand the test of principle and reason?
Take an illustration: A becomes a tenant by the curtesy on the death of. his wife — issue capable of inheriting being born-alive — of the manor of Dale. On the very same day he becomes the tenant for life of Blackaere by virtue of a deed or will. Dale and Blackaere lie side by side, and in respect of the soil, and all upon the soil, are identically alike in all respects. According to Coke, the ancient common law made A liable for waste committed on Dale, but not liable for exactly the same sort of waste committed at the same time on Blackaere! Is it possible that the ancient common law — “the perfection of reason” — ever tolerated any such absurd distinction? The distinction is so plainly abhorrent both to reason and principle as to need no discussion, and as to furnish the strongest possible ground for showing Coke’s notion to be unsound. So much for Coke’s curious and fanciful notion, on principle and reason.
I therefore maintain that at the ancient common law, on the authority of Bracton and Beeves and Kent and Smith, a tenant for years was liable for waste, and, further, that he was so liable on principle and reason, and, if he was so liable, even *547•my Brother Calhoon will concede that he would be liable today in Mississippi, "became he was so liable by the ancient common law, so far as that law is suited to our conditions at this time. But there are other considerations which show this to be undoubtedly the true view. The remedies provided by the statutes of Marlbridge and Gloucester were the writ of estrepement and the writ of waste, one of which provided for the infliction of single damages, having been passed in the year 1267, and the other for the infliction of treble damages and forfeiture of the estate wasted, having been passed eleven years later, in the year 1278. Now, by all the authorities, these ancient writs have long since become obsolete, and were at first succeeded by an action on the case for waste, in which only the actual damages were recoverable — a far more rational rule — and in modern practice, more recently, by the writ of injunction sued out in chancery, which gives indemnity for the past, by an account for damages already. sustained, and security for the future, by an injunction preventing future waste. See 4 Kent’s Oomm., p. 78, note 3, and Cooley’s Blackstone (3d ed.), vol. 2, p. 225, and especially Pomeroy’s Eq. Jurisprudence (3d ed.), vol. 4, sec. 1348, where that great master of equity jurisprudence says:
“The remedy by injunction is fully established, and has not only virtually superseded the old common law ‘action of waste,’ but has to a great extent taken the place of the ‘action on the case’ for damages. An injunction will be granted in all cases where a legal action would lie to recover possession of the land wasted or to recover damages. It will also be granted in many instances where no legal action can be maintained, although the interest of the injured party is legal, and where the estate of the injured party is 'wholly equitable, and where the waste itself is entirely ‘equitable’; that is, where by the terms of the will, deed, settlement, or lease the tenant holds the land ‘without impeachment of waste.’ ”
*548It is hardly to be doubted that the writ of estrepement and. the writ of waste are practically obsolete, in England even, as announced in Am. '& Eng. Ency. Law, and are at this time succeeded by the modern writ of injunction; and it follows as a clear corollary that the forfeiture and the treble damages provided by the statute of Gloucester would only be enforced where the action was strictly on that statute; and this is the complete answer to the suggestion, in the majority -opinion on the former hearing, that, if the statutes of Marlbridge and Gloucester are part' of the common law of Mississippi, then treble damages and forfeiture could be enforced here today. This is clearly incorrect for the obvious reason, supported by authorities, now to be subjoined. When the great principle of the ancient common law of liability on the part of tenants for life and for years was made a part of our common law, as being suited to our conditions, leaving the mere remedies by writ of estrepement and writ of waste entirely out, we incorporated the great principle of the common law into our common law; but there was no occasion for the incorporation of these harsh remedies, since they were ivholly unsuited to our conditions, and this is directly held- in many authorities, and notably in the case of Parker v. Chambliss, 12 Ga., 235. I say notably, because Georgia is the state from whose territory what is now Mississippi was in part carved.
But it is clearly incorrect for the further reason that, after the ancient writs of estrepement and of waste had become obsolete, even in England, and, of course, in the Hnited States, and had been succeeded, first, by the action on the case, and, in more modern practice still, by the writ of injunction, these last two remedies were applied against tenants for life and for years, getting their estates by contract, just as completely as against all other tenants, who get their estates by law! This is expressly declared to be the law in note 3 to page 225 in Cooley’s Blackstone, vol. 2, supra, and in many other authori*549ties unnecessary to cite. In other words, the law on this subject was a growth, an evolution, so completely so that in England today, where the statutes of Gloucester and Marlbridge have been regarded for hundreds of years as a part of the common law, the principle holding tenants for years liable for waste, existing at the ancient common law and merely re-declared in those statutes, holds such tenants to liability,' but the liability enforced is that' which equity now enforces, and not treble, damages and forfeiture. The law, in short, in the march of its unfolding on-this subject of waste, both as to the right ánd the remedy, has kept pace with the needs of the people in the development of advancing civilization. And there has become crystallized, fixed, in the jurisprudence of every state in the union, not the ancient English law of waste, suited to England seven hundred years ago, but what is universally known as the American modified law of waste, which is simply the great principle of liability for waste of tenants for life and for years, and all other tenants holding estates by law or by contract, enforced in modem jurisprudence so as to make the owner of the inheritance whole, but denying him the harsh remedies unsuited to conditions in the United States.. And it may be said that in every state in the union the American modified law of waste holds tenants for years liable for waste— that is, for any lasting damage inflicted on the inheritance— just as Mississippi holds them so liable in Learned v. Ogden, Cannon v. Barry, and Warren County v. Gans. From all which it most manifestly results that, whether Coke was right or wrong in his fanciful'notion about the distinction suggested above, liability of tenants for years for waste stands upon and grows out of the American modified law of waste, quite apart from and entirely independent of any English law of waste whatsoever, except the universal, immutable principle, squaring with reason and common sense, that such tenants have always been liable for lasting damage inflicted upon the inheritance, *550however that liability may have been differently enforced, .at different times, by varying remedies, existing in the common law or provided by statute. As is beautifully and accurately said in Jacob v. State, 3 Humph. (Tenn.), 493, quoted and approved in 6 Am. & Eng. Ency. Law, p. 272:
“The common law has been aptly called the ‘lex non scripta/ because it is a rule prescribed by the common consent and agreement of the community as one applicable to its different relations, and capable of preserving the peace, good order, and harmony of society, and rendering unto every one that which of right belongs to him. Its sources are to be found ‘in the usages, habits, manners and customs of a people; its seat in the breast of the judges who are its expositors and expounders. Every nation must of necessity have its common law, let it be called by what name it may-, and it will be simple or complicated in its details, as society is simple or complicated in its relations. A few plain and practical rules will do for a wandering horde of savages; but they must and will be much more extensively ramified when civilization has polished, and commerce and arts and agriculture enriched a nation. The common law of a country will, therefore, never be entirely stationary, but will be modified and extended by analogy, construction and custom, so as to embrace new relations springing up, from time to time, from an amelioration or change of society. The present common law of England is as dissimilar from that of Edward III as is the present state of society. And we apprehend that no one could be found to contend that hundreds of principles, which have in more modern times been examined, argued and determined by the judges, are not principles of the common law, because not found in the books of that period. They are held to be great and immutable principles, which have slumbered in their repositories because the occasion which called for their exposition had not arisen.”
Surely there can be no reasonable doubt of the liability under *551this, the American modified doctrine of waste — our common law of waste in ’Mississippi — of this tenant for ninety-nine years of this land.
Third. What dó we mean by the common law in the United States, including Mississippi ?
Under this head I propose to show that the great principle of the ancient common law, merely redeclared by the statutes of Marlbridge and ■ Gloucester, that tenants for years and for life were liable for waste, as common sense and reason demanded, is a part of the common law of Mississippi. And this is settled by the'highest authority. In Parrott v. Barney et al., Fed Cas. No. 10,773a, Deady, United States District Judge, said:
“It seems that by the ancient common law tenants were not liable to an action for waste, except those who were in by operation of law — as tenant in dower or guardian in chivalry. To protect the inheritance against the waste of tenants in by act of the parties, whether for life or for years, the statute' of Marlbridge was passed. 52 Henry III, c. 23 (year 1267). This statute provided: ‘Also fermors during their terms shall not make waste, sale or exile of house, woods and men, nor of anything belonging to the tenements, that they have to ferm, without special license had by writing of covenant making mention that they may do it; which thing if they do and thereof be convict, they shall yield full damages and shall be punished by americiament.’ 1 Chit. St., pt. 1, 3. This statute proving insufficient, the statute of Gloucester was passed. 6 Edw. I, c. 5 (year 1278). This statute provided: ‘That a man from henceforth shall have a writ of waste in the chancery against him that holdetk by the law of England, or otherwise, for term of life or for term of years or a woman in dower; and he which shall be attained of waste shall loose the thing that he hath wasted, and moreover shall recompence thrice so much as the waste shall be taxed at,’ etc. 1 Chit. St., pt. 2, 1106. These *552ancient statutes are a part of -the common law, brought to this country by the colonists from England. When the migration to America began, they had been in force in the mother country for four centuries, and were then practically as much a part of the English common law as the oldest traditions of the courts. Com. v. Knowlton, 2 Mass., 534; Sackett v. Sackett, 8 Pick. (Mass.), 314; 4 Kent. Comm., 81.”
I especially ask the profession to read carefully Saclcett v. Saclcett, supra, as an absolutely unanswerable demonstration of the correctness of Judge Deady's view. This opinion of the district judge was reaffirmed by Sawyer, federal circuit judge, in the same case, styled “Case' 10,773,” on appeal to the United States circuit court, and the doctrine of Deady, district judge, and Sawyer, circuit judge, was affirmed on appeal to the United States supreme court, in Parrott v. Wells, 15 Wall. (U. S.), 524, 21 L. Ed., 206. This principle,, therefore, that the statutes of Marlbridge and Gloucester, so far as the general principle of liability of tehants for life and for years for waste is concerned, became crystallized as a part of the common law in all of the United States, is expressly declared to be the true and sound view by the United States supreme court. And the identical doctrine is expressly declared in the 6 Am. & Eng. Ency. of Law, at page 277, in the following words:
“It may be stated as a general rule that English statutes passed before the emigration of our ancestors, in aid or amendment of the common law, applicable to our condition, and not repugnant to our institutions and form of government, constitute a part of our common law" — -and again at pages 271 and 272. The array of authority on this subject is simply overwhelming. At page 259 of Am. & Eng. Ency. of Law it is again said, after a review of the whole subject: “In the United States these statutes are either considered a part of the common law, so far as applicable to the different conditions, or they have been expressly enacted in a modified form” — citing a multitude of authorities.
*553' They are attempted to be met, however, by four cases from our court, in which the court has said, at different times, referring to Toulmin’s Digest, as set out at page. 65, c. 2, art. 1, of Hutch. Code, that no English statutes are in force in Mississippi unless re-enacted here. A careful and critical examination of these cases will show that reference is, in all of them, had to English statutes, specifically therein dealt with, as statutes standing apart from the common law — statutes covering completely the subject treated in them, not as statutes' merely in aid of, or amendatory of, or declaratory of, some mere principle of the ancient common law. All that could have been meant, on any judicious and reasonable construction of the passage in Toulmin’s Digest, is that English statutes of the former class are not law in Mississippi unless they shall have been re-enacted here. It surely never could have been meant that English statutes, like those of Marlbridge and Gloucester, merely in aid of and declaratory of a great principle of the common law, and containing in themselves nothing new, except the remedies therein provided for, statutes which had become, in the lapse of more than 500 years, ingrafted into and crystallized in the body of the English common law, and which were, as to that great gen,eral principle of liability of tenants for years and for life, also brought to the United States by our ancestors as a part and parcel of that same common law, becoming thus in the United States a part of the great body of our common law, were not also part of the common law of Mississippi. Such statutes were not thought of in England, for several hundred years before our emigration, as statutes, so far as the great principle of which they were merely declaratory was concerned.
A fortiori, is it not in the extremest degree unreasonable to hold that Toulmin’s Digest could have meant to say that those statutes were not a part, as to that great principle, of the common law of Mississippi ? The section quoted from that Digest *554meant to exclude, undoubtedly, only those English statutes not ancient enough to have become, and to have been regarded for centuries in England itself, as a part of the common law, being, too, statutes merely amendatory of and in aid of a great common law principle, but to exclude such English statutes as stood apart to themselves as statutes covering the whole law on the subject dealt with in them, and which were not, therefore, any part of the ancient common law. It must be said'that my 'Brother Calhoon has plausible ground for citing these four Mississippi cases; but it is clear, on close examination, that the expressions of the court touching this subject in these cases were merely casual, and it must be said for the court that it was not, in any one of these cases,’ directing its attention to the precise question what was the common law in Mississippi, as brought to the United States by our ancestors.
I desire to add to this, the third, section of my discussion of this subject, what is extremely important to be noted, that, whether the view which I have here advanced, and which I have the utmost confidence in asserting, is the true doctrine on this subject, be the true doctrine or not, is utterly immaterial to the liability of this tenant for ninety-nine years in this case, because that liability is absolutely established by the American modified law of waste, which has been declared to be the Mississippi law of waste in Learned v. Ogden, Barry v. Cannon, and Warren County v. Gans. What I here advance in paragraph 3 adds to and strengthens that view merely; but that view stands incontrovertibly established by what I have said, in this opinion, without reference to the discussion in this paragraph 3. In other words, to phrase it shortly, and to dismiss the subject, if the great principle of liability, merely re-declared in the statutes of Marlbridge and Gloucester as having been the ancient English common law, became a part of the common law of Mississippi, then clearly that consideration alone ends the discussion; but, if Coke’s curious notion *555is right as to what the ancient common law was on this subject, and if the statutes of Marlbridge and Gloucester, so far as declaring this great principle of liability, never became a part of Mississippi’s common law, still the law of waste in Mississippi is the American modified law of waste, and that law makes tenants for years liable for waste.
In the fourth place I will consider the practical results from the opposite view.
The reasoning of the majority opinion on the former hearing is this:
(1) At the ancient common law tenants for years were not liable for waste unless a clause making them liable was put in the lease.
(2) The statutes of Marlbridge and Gloucester, for the first time in England, made such tenants liable for waste.
(3) We never adopted the statutes of Marlbridge and Gloucester, even as to the great principle of liability which they announce.
(4) Therefore the only common law of waste that we have is the ancient common law, under which tenants for years are never liable for mere voluntary waste, unless a clause to that effect has been inserted in the lease.
Now, if that be the law in the twentieth century in Mississippi, what follows as the inevitable, direct result? Take an illustration put by counsel:
“A leases to B 640 acres of land, of which 140 are in cultivation, on which have been erected valuable improvements. The balance of the land, we will say, is covered with a fine growth of yellow pine timber. Eor a small annual rental the possession of the estate is delivered to the tenant for year's. No restrictions are placed in the lease as to the commission of waste, either voluntary or permissive, because to do so would be an idle performance; the law implying that the tenant will do no lasting damage to the inheritance, and that he will farm *556the estate according to the dictates of good husbandry. B, the tenant, learning that the statute of Marlbridge has not been re-enacted in Mississippi, and, on the authority of Jordan v. Roach, that -he is unimpeachable for waste, proceeds, in flagrant disregard of the rights of his landlord, to cut and convert into lumber the timber standing on the 500 acres of land, worth at presentprices about $15,000. He tears down the buildings erected on the premises, destroys orchards, ornamental shrubs and shade trees of one hundred years’ growth, thus bringing utter destruction and ruin upon the estate of the reversioner; and yet we are told by counsel for appellant that the tenant for years is unimpeachable for waste in Mississippi, and the landlord is utterly without remedy, to redress the flagrant violation of his rights by the tenant! To such curious and illogical conclusion does the argument of counsel for appellant lead.” Is it possible that the law can be “the author of such confusion” ? And if, as is inescapably true, the opposite view leads to this conclusion, does it not show conclusively that that view cannot be the law? The common law is said to be “the perfection of reason.” There is no sound reason in the opposite view, as it seems to me.
I now turn to the second ground on which the conclusion of the majority of the court on the former hearing rested, towit:
That on the legislation of Mississippi this tenant got what is called a fee simple for the term, and is not liable; that he has, during his term, “the absolute rights of a fee simple owner for the term of ninety-nine years.” With all deference to the majority opinion, I must frankly confess my utter inability to apprehend, or comprehend, how there can be an estate conveyed by a plain lease for the term of ninety-nine years, which estate, at the same time, vests in such lessee the absolute rights of a fee simple owner for the period of the term! It is said that the case of Davany v. Koon, 15 Miss., 71, gives this sort of lease “and sale for a limited time.” But, when that case is critically examined, it is seen, at once, that this language was *557used with strict reference to the lease in that case made, which was a lease executed in pursuance of the law found in Hutch. Code, pp.,213, 222, c. 9, arts. 12, 26 (the act of January 20, 184-1), which gave to lessees thereunder “the same rights of action and remedies against strangers as if they were the fee simple owners.” Judge Simrall, therefore, in too loose language, writing cúrrente culamo — said this in reference strictly to the lease under which, according to the terms of the statute, “the lessees were vested with the rights of a fee simple owner as to actions against strangers.” And that, let it be especially noted, was an action against a stranger by said lessees. The case is, therefore, of no authority whatever here, since this lease was made under the code of 1880, which conferred no such right on the lessees of suit, “as if they were fee simple owners.”
Again, almost the whole argument in the majority opinion on the former hearing, seeking to show that this tenant had, as said, the absolute rights of a fee simple owner for the term of ninety-nine years, is built up on a too narrow and technical construction of the words in the act of 1.833 — “right, title, use, and occupation.” The argument is that that language, in that act of 1833, conferred this character of estate on the lessee under that act. Suppose ijhat is true, as we shall later show it could not possibly have been; how does that at all affect the estate this tenant got under the lease made under the code of 1880, which, concededly, does not contain the words “right, title, use, and occupation” ? If a tenant under a lease for ninety-nine years, made under the act of 1833, did have — as most erroneously argued — the absolute rights of a fee simple owner for the term of ninety-nine years, what has that to do in determining the character of the estate held by this tenant under a totally different statute, to wit, Code 1880, § 732, which does not contain these words, “right, title, use, and occupation ?” Can anything be clearer than,, as said by Judge Campbell, that the whole measure of the estate of this tenant must be de*558termined exclusively by the provisions of the code of 1880, under, which this particular lease was made? Assuredly not; and so the whole superstructure of the argument of the majority opinion on the former hearing, based on statutes anterior to the code of 1880, falls to the ground.
But, so great is the deference which I feel for my Brother Oalhoon’s very ingenious and very able opinion on the former hearing, marked as it is by careful and profound research into the sources of the common law and by a critical historical ex; amination of the legislation both in England and Mississippi on this subject, that I feel bound to make answer, if I can, to that former opinion touching this review of legislation.
Both the act of congress of 1815 regarding the subject of school lands while Mississippi was a territory, and the act of the Mississippi legislature of 1824, made the tenant expressly liable for cutting trees or timber. This appellant is bound to admit. But learned counsel for appellant seek to avoid the force of this by saying that the act of 1833 repealed the provisions of the act of 1824 with respect to the commission of waste; and they give as a reason that conditions as to what ought to be waste had so greatly changed in the nine years from 1824 to 1833 that the legislature changed the whole system of our laws as to waste. In respept to this it may be said that the historical fact is just the converse. No such tremendous change in the condition of Mississippi occurred in the very short interim of nine years between 1824 and 1833. In the very nature of the case no such marvelous change could have been wrought in so very short a time. But, as a matter' of fact, the act of 1S33 manifestly did not repeal the act of 1824, but was simply amendatory thereof, as is shown at'the end of the act of 1833, as set out in Hutch. Code, sec. 1, act of January 9, 1824,.provided that five trustees in each township should be elected by heads of families -for one year; section 2 provided for a treasurer, and section 3 for schoolhouses and teachers. Section 4 provided as follows:
*559“The trustees aforesaid shall carefully and faithfully preserve the school lands and timber thereon, from all improper waste; and shall institute suits in any court having competent jurisdiction ag’ainst any person, tenants, as well as others, who may be found damaging, in any manner, the lands, timber or improvements, reserving to tenants the full liberty of their several leases; and any money thence arising shall be appropriated to the same uses as other moneys in the township treasurer’s hands; and the trustees shall, from time to time, on the expiration of the leases already granted, as well as any land not heretofore so let out, rent the whole or any part to the highest bidder, for any term not exceeding five years, public notice having been first given for the space of six weeks before the said lands are to be leased or rented.”
Act February 27, 1833, is entitled “An act to authorize the trustees of the school lands within each township in this state to lease the sixteenth sections within, the same for ninety-nine years, and for other purposes.” Sections 1 and 2 provided that “whenever a majority of the resident heads of families, minors not excepted, in each township or fractional township, containing section number sixteen, or such section as may be reserved for the use of schools in lieu thereof, within, this state, shall request the same, it shall be the duty, of the trustees noiu in office, or who may hereafter be in office, to lease the said section of their respective townships to the highest bidder for the term of ninety-nine years,” etc. Sections 3, 4, 5, 6, and 7 provide other details in the administration of the sixteenth sections, not important to set out. Not one single word is said in the entire act of 1833 about the election of trustees. That had been provided for in section 1 of the act of 1824, as shown above. .The act of 1833 proceeded, therefore, very naturally upon the idea that the trustees were already in existence, and did nothing more than amend the act of 1824 in the respects indicated.
*560It must be too clear for comment that, if the act of 1833 repealed the act of 1824, there would have been no law providing for the trustees necessary to administer this trust, and there would have been actually no trustees in office; and, as the act of 1833 did not provide itself for the selection of trustees, the law on this subject vrould have been, on this theory, in the chaotic and absurd condition of leaving the fund without any machinery for its administration. Of course, no such folly as this should be imputed to the legislature. Besides, the history of that time shows that sixteenth sections were leased, and by trustees elected under the act of 3824, as a careful study will show. It is too elementary a principle for citation of authority- that repeals by implication are odious, and, where two statutes even seem to be repugnant, they must still be so construed, if possible, as to exclude any repeal by implication. But there is nothing in the act of 1833 inconsistent with or repugnant to the provisions of the act of 1824. They are perfectly harmonious parts of one consistent whole. The act of 1833 simply adds to the act of 1824, but did not repeal section 1 of that act, which provided for the election of trustees, or section 4, which provides for the preservation of school lands and timber from all improper waste, and directs the trustees to institute suits against any person, tenants as well as others, who might be found damaging in any manner the lands, timber or improvements.
■ The very ancient document offered by learned counsel for appellant — an alleged form of lease prepared by John D. Freeman, then attorney-general of the state, to be used in making leases of sixteenth section lands' — cites the act of 1824 as still in force, showing how the trustees should be elected, and then cites, in the same breath, the act of 1833 as showing for how long, etc., a lease should be made; thus indicating clearly that the learned attorney-general of the state, at that time, held both of these acts to be in force, consistent parts of a harmonious whole. It is very clear, therefore, that the statute *561law of this state after it became a state, as well as the act of congress while it was a territory, both expressly made tenants of sixteenth sections liable for waste. There can be no escape, as it seems to me, from the conclusion that such tenants were made so liable expressly by the statute law. But it is insisted, apart from this view by learned counsel for appellant, that the act of 1833 by its terms actually vests a fee simple interest —or what is curiously called a fee simple interest for the term — in the person who has always heretofore been considered as having acquired a leasehold interest for ninety-nine years. There has been much litigation about these sixteenth section lands; the decisions respecting these leases are scattered all the way bach through our decisions, and yet it may be affirmed, without the slightest fear of contradiction, that no .sale was ever anywhere in any statute ever passed by this state provided for, nor was any decision ever 'rendered by this court construing, these leases as sales. The word “lease” is used in every statute and in every decision ever rendered touching this subject. The word “lease” has actually become crystallized in the statute law and in the decisions of the court touching this subject-matter. The provisions in this state have, from the beginning until this hour, uniformly regarded .the instrument executed as a “lease.” The instrument calls itself a lease. It uses accepted and technical terms indicating a lease. The exact statement of learned counsel for appellant is that this lease under the act of 1833 conveyed what they strangely call “a determinable fee.” It is said that the words in the act of 1833, “the right, title, use, interest, and occupation,” are inconsistent with anything else than a fee; but counsel, seeing that they were immediately followed by the limitation that all this right, title, etc., were to last only until the end of the full term of ninety-nine years, do not hazard the contention that 'the instrument conveyed a fee simple absolute, but say that it conveyed “a determinable fee.” It is settled law that *562all terms used in any instrument, deed, will, lease, or what not, are to be construed together, not in isolated fragments, so as to arrive at the real intent of the maker of the instrument. We reaffirm the correct view on this subject as to the ascertainment of the intent of the maker of any instrument, clearly set forth in Hart v. Gardner, 74 Miss., 153 (s.c., 20 South. Rep., 877).
The same doctrine had been previously announced in Swan v. Buck, 40 Miss., 270; Cunningham v. Davis, 62 Miss., 366, and as set forth in 12 Am. & Eng. Ency. Law (1st ed.), 977. See, especially, Berridge v. Glassy, 112 Pa., 442 (3 Alt., 583; 56 Am. Rep., 322), directly in point.
All that is meant by the words “right, title,” etc., in this lease, is simply the “right,” etc., for the term of ninety-nine years. One loses one’s self in a metaphysical fog by straining over the separate, artificial significance of each technical word —“rigiit, title, use, ■ interest, occupation,” etc.- — and shutting out all the other terms of the instrument plainly showing it to be nothing but a lease. The reference of learned counsel for the appellant to the use o.f the’ words “right, title-, claim, and interest” in the act of cession by Georgia” to the United States, to be found in Hutch Code, art. 4, p. 55, c. 1, is most unfortunate. Georgia did not limit‘the term in these sixteenth sections to ninety-nine years. It gives them in perpetuity. These instruments specifically limited the term in each instance to ninety-nine years. There is absolutely no merit in the contention that the act of 1833 conveyed “a determinable fee.”
Counsel for appellant is equally unfortunate in citing the act of 1841 (Hutch. Code, art. 24, p. 221, c. 9). That act provides:
“The lessees of sixteenth sections, and all other school lands, shall be authorized to, and may maintain and carry on, all such suits at law or equity, immediately after the leasing, as they could or might maintain or carry on were they the fee simple owners of the leased premises, except as against the lessors.”
*563The very use of the phrase “ivere they the fee simple owners,” is conclusive that the statute treated them as not being the fee simple owners. If they had been the fee simple owners, no statute would have been necessary to authorize the maintenance of such suits. It was precisely because they were'not the fee simple owners that they had to be invested by statute with the right to maintain these suits as if they were. But, again, the statute, in its concluding clause, expressly says -that they may maintain these suits “as if they' were the fee simple owners to the leased premises, except as against the lessor.” This clause, “except as against the lessor,” shows, to demonstration, that the tenant had no estate in fee, determinable or otherwise; that he was a mere tenant, subject to the superior title of his lessor.
Counsel are also unfortunate in appealing to the act of 1841, known as the revenue act (Hutch. Code, art. II, p. 188, c. 8). That act provides as follows:
“The school lands, known as the sixteenth sections of land in this state, which shall have been leased subsequent to the passage of the revenue act, approved February 24, 1844, shall be subject to taxation during the continuance of the lease, in the same manner and proportion as other lands; provided, in case of the sale of such leased lands, or any part or parcel thereof, for taxes, the title of the lessee or his assignee, only shall be conveyed.”
This provision expressly stipulates that, when a sixteenth section should be sold for taxes, the purchaser should not get the paramount or foundation title, which was still in the lessor, but merely the title — that is to say, the interest — of the lessee or his assignee. The loose use of the wore! “title” will not fail to be noted in this connection. It is used in the same loose sense in which-it was used in the act of 1833. So that, summing up on this branch of the inquiry, it is clear that the lessee of the sixteenth sections, under the act of 1833, got precisely what he has always been understood to have gotten, pre*564cisely what his instrument said he had got, a leasehold interest for the term of ninety-nine years, and no fee of any character.
Pray, what is a determinable fee ? In Anderson’s Law Dictionary it is thus defined: A “base, qualified, or determinable fee, has a qualification subjoined thereto, and terminates whenever the qualification is at an end” — as a grant “to A and his heirs, tenants of the manor of Dale”; that is, as long as they continue tenants. This estate is a fee, because it may endure forever; yet the duration depends upon a circumstance, and this debases the purity of the donation. 2 Bl. Com., 109.
It is said that this is “a determinable fee, terminating upon the expiration of ninety-nine years.” Was ever such a determinable fee heard of? Where is the qualification, or contingency, or uncertainty, upon the happening of which uncertainty or contingency the alleged fee terminates ? Is it possible that the mere expiration of the ninety-nine years can, by any perversion of logic, be tortured into the faintest resemblance to the qualifications subsisting in a determináble fee, or the uncertainty or contingency upon the happening of which such fee ■would terminate ? The very essential characteristic of a lease for years is that its term shall be fixed and definite, and the fixed term of ninety-nine years is precisely what makes it an estate for years and discriminates it sharply from a determinable fee. Let this claim of a determinable fee be passed without further comment.
Finally, under this head, let it be noted that this particular lease was executed under Code 1880, § 132, which is as follows:
“Whenever a majority of the resident heads of families shall petition therefor, the board of supervisors shall appoint three intelligent citizens of the township, to appraise said land, who shall do so, and make oath to such board of the value of the land, and thereupon said board of supervisors shall direct that said lands be leased to the highest bidder for a term of ninety-nine years.”
*565Here expressly is given, the right to lease, not to sell. The code of 1880 did not authorize sales. Many sales had been made without authority prior to 1880, and that code does contain provisions for the management of the proceeds of these sales; but it did not authorize any sales to be made in the future. It provided for nothing but a “lease.” As I have before pointed out, there never was, from the beginning, any policy authorizing sales. This state is an agricultural state. It is not a mineral state, nor a timber state. It is primarily an agricultural state, rich in fine soils for crops. There never was any market of any sort for timber in this state until some ten years ago, when the pine timber of southeast Mississippi became valuable because of the ruthless destruction of such timber and other timber elsewhere, actually making the enactment of reforestry laws necessary in the United States. Then, for the first time, this pine timber, becoming of pronounced value, a market for timber was created. ' A market being created, those desiring to purchase the timber encountered difficulty in purchasing it, when the timber stood upon sixteenth sections, dedicated to the education of the children of the townships. They sought, therefore, a change of the law, authorizing a sale of the timber on these sixteenth sections; and so, as pointed out in the act of 1898, for the first time, power was given to sell, not the land, but the timber — “the merchantable pine timber” — on the sixteenth sections, and ¿his act above referred to was amended in 1904 (Laws 1904, p. 173, c. 124) so as to provide as follows:
“Be it enacted by the legislature of the state of Mississippi, that Laws of 1898, ch. 41, sec. 1, be, and the same is’hereby, amended so as to read: That the board of supervisors in counties having control of any sixteenth sections of land, or a part of such sections, or of another section or part of a section taken in lieu of any sixteenth section, or a part thereof, reserved for the support of township schools, be, and they are hereby, authorized and empower to sell the merchantable *566timber, of any and all varieties, and wood on such land, or to lease for a term not exceeding three years said lands for turpentine, . or pasturage purposes for a term not exceeding one year.”
The original, passed in 1898, authorized the sale of merchantable pine timber and other wood. The amendment of 1901 authorized the sale of the “merchantable timber of any and all varieties, and wood on such land,” and also authorized the leasing for a term not exceeding three years for turpentine purposes, or for pasturage purposes. The original authorized the sale of merchantable pine timber; the amendment, the sale of merchantable timber of any kind'whatever, and then created a new lease, known for the first time in the history of the state — a lease for turpentine purposes.
All this vindicates beyond question the view I hereinbefore expressed — that these leases, until Avithin the last ten years, when southeast Mississippi’s pine timber first came into the market, universally dealt Avith our state as an agricultural state, and not as a mineral or a timber state, and therefore leases, until Avithin the last ten years, were of the soil as being the chief element of value; leases of agricultural lands, as to which both Judge Calhoon and Judge Campbell admit, as I understand them, that Avaste could be committed by tenants for life and for years in Mississippi. No proAÚsion had ever been made, until Avithin the last ten years, for sales of timber, or for leases for turpentine purposes, for the simple reason that the legislature had been dealing with the situation as it existed all along — a situation as pointed out, in Avhich the sixteenth sections were leased because of the value of the lands for agricultural purposes alone. If Avithin the last ten years a new situation has come about, in which, in southeast Mississippi at least, some sixteenth sections are chiefly valuable for the merchantable pine timber standing thereon, the remedy is not to haA>-e the court Avrench the statutes authorizing leases into statutes authorizing wholly different things, sales, but to apply *567to the legislature to authorize the sale of the merchantable, timber on these sixteenth sections, as was clone in these two acts (1898 and 1904). The very fact that such acts were asked for and passed is conclusive of the general understanding among the profession and the people that without such legislation no sale of the merchantable timber on these sixteenth sections could be made. Of course, after the adoption of section 211 of the constitution of 1890, the legislature has been without power to sell the land embraced within these sixteenth sections. I will show later the public policy intended to be conserved by this section 211. This trust is intended, as I believe, to endure always as a perpetual trust, for the recurring generations of children in this commonwealth, and not as the source of a fund intended to benefit the children of any particular decades. Decades count for little, so far as time even is concerned, in the earthly immortality of a state.
I add just one concluding thought under this head, as to the legislation on this subject, and that is this: That in view of the fact that this lease was made under Code 1880, § 732, I am wholly unable to see why the majority opinion on the former hearing should have gone into any discussion or review either of legislation in England or of legislation in Mississippi prior to said code of 1880. But because I felt it important, since the majority opinion had gone into that matter, to point out what I deemed to be the clearly erroneous construction of said former legislation in Mississippi, and of the legislation in England, therefore I have written on this subject.
One more inquiry: What has been the course of judicial decision in this state touching this subject of waste?
Eirst, the whole matter has been definitely and conclusively put at rest in this state by the decision of this court in Warren County v. Gans, 80 Miss., 76 (s.c., 31 South. Rep., 539), decided in March, 1902. That case was carefully and thoroughly considered by this court. The arguments addressed to this court at* this time are. the same as those used in the *568arguments of the case referred to. The views urged now were presented then with great earnestness and with great ability. All that could be said for that view was then said, and well said. The very ingenious and able arguments now Blade add substantially nothing to the argument then made for the appellant’s view. We are merely called on, therefore, to rethresh old straw, and to overrule a former well-considered case, decided by a unanimous, and not a divided, court, and accepted now for some years past as the settled law of this state. The doctrine of stare decisis should not be lightly disregarded. And a former deliberate, and especially a former unanimous, opinion of any court should be firmly adhered to, unless it be manifestly wrong, and public policy imperatively requires it to be overruled. So far from there being any doubt as to the soundness of the decision in the Gans case, supra, Ballard, in his recent most elaborate work on real estate, not only cites the Gans case as stating the law correctly, but, recognizing the careful consideration and ability with which it was decided by the late learned Justice Terral, actually inserts the opinion entire in his work (vol. 10, p. 828, sec. 824). The law of waste, as stated in that case, beyond all controversy is sound and just. It is sustained by decisions in every state in the union, an array of authority absolutely overwhelming. The very same doctrine as to what is waste had theretofore been announced by this court in Cannon v. Barry, 59 Miss., 289, and Larned v. Ogden, 80 Miss., 769 (s.c., 32 South. Rep., 278). In the last case the court said:
“While the law of waste, as established in England, is modified in its transportation to this country to suit the conditions of a new and uncleared country, and to allow a tenant for life to open wild lands for necessary cultivation, or to change the course of agriculture, without being liable for waste, yet the cutting down of trees for his mere profit is here, as there, considered waste. A tenant by the curtesy, as an incident to his estate, may take reasonable estovers of all kinds, and he may *569cut timber to pay taxes or to improve tbe land, and, when so cut it belongs to the tenant and not to the reversioner. But the cutting down by the tenants of trees for sale is waste, and the felling of trees by the tenant or others for a sale of them is an injury to the inheritance, for which, the reversioners have their appropriate action.”
In one word; whatever inflicts lasting damage upon the inheritance is waste in all jurisdictions, here and in England. Of course, where all the timber is cut off and a town built on a sixteenth section, as in the case of the city of Columbus, the inheritance is benefited, and not damaged, and there is no waste in such case. That which benefits the inheritance can never be waste. Such instances present cases of “meliorating waste.” In the very nature of things this must be the only correct rule, and it will be kept in mind, in this connection, that the demurrer admits in this case, that the whole value of the inheritance was being destroyed by the lessee for years. When the demurrer admitted that, it was logically impossible for the appellant to argue here that there was no waste shown in this case. The admission cut from under the appellant the only ground it had to stand on, if it chooses to make that argument. Nor, indeed, do learned counsel for appellant chiefly plant their case on any contention that what was here done was not waste; but they argue alone on the technical proposition that a tenant for years in Mississippi, in the twentieth century, is not liable for waste unless the lease expressly malms him so! There is, indeed, in counsel’s brief, something said about Mississippi having been a wilderness in 1833, her soil covered with an unbroken forest, her population scant, and about timber being at that time, as stated, a burden which it would be a benefit to remove by destroying it in any way, etc.; and it is further stated, in this same loose strain, that consequently the act of 1833, provided for leases of these sixteenth sections, without liability for waste, as being better suited to.the condition of the country at the time, overburdened with timber, etc.; that *570the condition of Mississippi in 1833 was not like that in England; there was no1 timber there, and too much timber here, and what ivas waste there would be actually a benefit here, resulting in clearing up the land for cultivation, etc. So far forth as the contention is that what is waste changes in the history and development of a country from time to time, and that, according to the changing conditions of a country from time to timé, what would not be waste in the earlier settlement of a timbered country, would be waste in the same country when the timber became scarce. The contention may be conceded to be perfectly sound; but what is the effect of the contention, when conceded?- Why, obviously that that which would not have been waste in 1833 not only may be, but certainly is, waste in 1906 in Mississippi! Learned counsel will hardly insist that Mississippi is a wilderness in the year 1906! If it ever had been the law, as it clearly never was, that timber could be destroyed in 1833 without reference to the damage to the inheritance, when virgin forests stood unbroken all over the state, no one will have the hardihood to contend that the timber, now becoming rapidly scarce, can be all taken from a sixteenth section, to the lasting damage of the inheritance, without the act being characterized as waste! So far, then, as our decisions are concerned, we have had the modern doctrine of waste thoroughly imbedded in our jurisprudence by Cannon v. Barry, Learned v. Ogden, and Warren County v. Gans, supra; and we hair© had the precise question now before this court squarely decided against the appellant’s contention by a unanimous court in the last-named case. It need only be added that the views announced in these cases, as to what is ■waste and as to the liability of a lessee for years for waste, have been settled the same way in all the states of this union oy an array of authority absolutely overwhelming, many of which authorities have been selected with great care by the learned counsel for appellee in their brief.
*571The Trust View of This Subject. — No adequate view of the importance 'of this case can be taken, unless regard be had to the great, paramount purpose had by the federal government and by the state of Georgia in dedicating the sixteenth sections as a trust fund, to be perpetually maintained, for the education of the children of the townships in which sixteenth sections are located, not only in Mississippi, but largely throughout the union. As well said by counsel: “About one thirty-sixth of all the land, in the United States has been set apart for township school purposes. Much of this vast territory is in the same category with the section to which this controversy relates. All the people in the United States, outside the present limits of the original.thirteen states, are to some extent interested in the result of this litigation. The people of Mississippi are interested, because a binding precedent is about to be established; the people elsewhere in the United States, because a high authority will, in this decision, add its weight to the support of a definite rule of sixteenth-section property.”
A suggestion of great importance is to be made here: That whilst the decision in Jones v. Madison County, as applied to sixteenth sections, embraced in territory acquired by Mississippi from Georgia, announces correctly state policy as to such sixteenth sections embraced in such territory, yet, in that part of Mississippi not acquired from Georgia (and this particular sixteenth section is of that sort, since it lies south of the thirty-first parallel, which marked the southern limit of the Georgia cession), the policy of the federal government -in dealing with these sixteenth sections is a matter of vital importance. Congress, in the Ordinance of 1787 (article 3), provided: “Religion, morality and knowledge being necessary to good government, and the happiness of mankind, schools and the means of education shall forever be encouraged.” It was in pursuance of the purpose thus declared, this enlightened public policy, that sixteenth sections, all over most of the United States, have been set apart as a sacred trust fund to be perpetually maintained *572for the education of the children in the various townships. The thought, the paramount controlling purpose, was that this fund should not be wasted, and not even consumed for any one decade of children, but preserved “forever” for the education of every succeeding generation of children in these townships all over most of the United States. This state, acting in its governmental capacity, has accepted this sacred trust according to its terms and in harmony with the spirit which created it. It may appoint whatever administrative machinery it sees proper to carry the trust into effect; but it may not wholly and absolutely destroy these sixteenth sections by a sale, either of the land or of all the timber, unless, possibly, where the sole value the section may have is the timber thereon, and certainly never then under a mere lease, because timber, elaborated through ages, as Judge Rueetn says, is not an annual product of the land, as Coke himself also states in 3 Coke on Lyttleton, p. 262, note 1; and ordinarily it is this “annual product” only, “the temporary profits,” which a tenant for years may take. It is, in my judgment, a high and solemn trust, which the state in its governmental capacity has accepted, the most sacred imaginable; and the state should see to it that this trust fund shall not be seized upon by arrogant timber trusts, demanding, for the first time in the history of this state, that they can, under the guise of a lease, having paid only a leasehold consideration, take an absolute fee simple property in these sixteenth sections, and destroy the whole value of the inheritance. No greater trust can be committed to any state than that of the education of the children within its borders; and, if one such trust can be more sacred than another, it is that trust designed to bring home to the doors of the poorer children of the commonwealth the means of acquiring a reasonably good education. It is these helpless children the state’s faith is pledged to protect. There are thirty-five other sections in every township, the timber on which is open to absolute sale. There is but one section in every township, the sixteenth section, consecrated to the education *573of these children. Let it be sacredly preserved for every gen-ration of Mississippians to come in the great future.
And finally, on this point, let the principle be given all the emphasis the high character of the provision carries with it, written- — as it is — above legislative reach, in the organic law of the land, towit, the principle declared in section 211 of the constitution of 1890, which provides that there shall never be a sale of the sixteenth section lands, in the following language:
“The legislature shall enact such laws as may be necessary "to ascertain the true condition of the title to the sixteenth section lands in this state, or land granted in lieu thereof, in the Choctaw purpose, and shall provide that the sixteenth section lands reserved for the support of township schools shall not be sold, nor shall they be leased for a longer term then ten years for a gross sum; but the legislature may provide for the lease of any of said lands for a term not exceeding twenty-five years for a ground rental, payable annually; and, in case of uncleared lands, may lease them for such short term as may be deemed proper in consideration of the improvement thereof, with right thereafter to lease for a term or to hold on payment of ground rent.”
Goncluding Observations — Very great emphasis is put repeatedly, in the opinion of the majority of the court on the former hearing, upon-the fact that Lord Coke, the great common law judge, announces the view of the ancient common law contended for by the majority. Names count for little with me. Mansfield was as great as Coke, if not greater; and yet who, that has ever read the magnificent argument of Kaymond in the case of White v. Wagner, 4 Har. & J. (Md.), at pp. 375-379 (7 Am. Dec., 674), ever had any doubt left of the woeful errors into which that great judge, Lord Mansfield, fell in dealing with this same subject of waste at the common Taw? All judges are fallible, all live under the possible applicability to themselves, however great they may be, of' the line, "Bonus Homerus aliquando dormitat.” If Jove nods, so does Coke. *574The truth is that the very greatness of a judge, or commentator, furnishes readier shelter for error. The very greatness of the name induces readier belief in the error. "8tat magni nominus umbra" is no maxim for my guidance, and the test is with me, and has always been, and always shall be, does the proposition, announced as law, square with sound principle and true reason? If so, I accept it, because it so squares; if not, no name, however great, shall be permitted to lead me into false paths. Coke’s name is, indeed a great name, especially great when the common law is under consideration; and it. is not strange that he has, as I believe, caused not only my Brother Oali-ioon, in this splendid opinion of his, to miss his way, but many other great judges as well. If they have been led astray by the dictum of the great Coke, it can almost be said, in extenuation of the error, that “the light that led astray” at least ivas “light from heaven!”