dissent on second decision.
Calhoon, J.,on the second decision of the case, delivered the following dissenting opinion.
It would be pleasant to concur with the majority, but not possible, since the people, whom each of the court represents, is entitled, in great public questions, to the judgment of the minority member of the court. The reasons for -my position are stated in the views of the then majority of this court in the opinion heretofore rendered in this same cause, to be published. It remains now, on this suggestion of error, only to group them and leave conclusions to an able and upright profession.
I have now nothing left, except as mourner at ivhat I conceive to be the funeral of the honor of a great state. I am profoundly impressed with this view, notwithstanding I was a member of the court which decided Warren County v. Gans, 80 Miss., 80 (s.c., 31 South. Rep., 539). Observe, however, for what it is worth, that in that case the opinion said: “The *575two places for which, the timber in controversy was cut were used as farms.” But for this, it is my belief that the exceptionally wise judge who was the mouthpiece of the court would not have led us to the camp we are now to sleep in, with what dreams may come. That case may well comport with the special view I have of the particular case in hand, though not generally. He who relies on the great multitude of decisions on equitable waste is utterly in the dark as to the concrete question now before us. There is no inquiry here of the renting of a cultivated farm, and cutting down shade trees or ornamental shrubbery, or tearing down houses. These constitute equitable waste, and these only, and these are not here. He is in no degree advised of the question involved in this record who depends on the many, and very correct, decisions holding the general doctrine that impeachment of waste is predicable of leases for terms of years of cultivated lands. It cannot be easily seen how this can apply to the case here, either at common law in England, or the common law changed so as to suit conditions and become the common law of the states. What is wanted, and what cannot be found anywhere, is a-case so holding as to ninety-nine-year leases of public lands, or, as between individuals, where the appraised value of the lands is paid, and where the lands are confessedly of no sort of value whatever, except for the timber. This is absolutely the situation, confessed in this case, and was the situation in the public view of these lands in 1833. We have seen in the former opinion that Judge Cranch, in May v. Bayne, 3 Cranch. C. C., 335 (Fed. Cas. No. 9,331), applied the doctrine, even as to cultivated land, only because the statutes of Marlbridge and Gloucester were expressly re-enacted in the state of jurisdiction. In truth, in 1818, 1824 and 1833, when the first three statutes in point were passed, Coke upon Lyttleton may be said to have been the common law, with the people, the bar, the courts, and. the legislature of Mississippi. The acts were passed with reference to that. Hence the two first acts referred to waste, *576and the last did not. The act of 1833 revises the subject, omits waste, and conveys “title” for the term. Clay Co. v. Chickasaw Co., 64 Miss., 534 (s.c., 1 South. Rep., 753). So, on the common law branch of this case, the three utterances of Lord Coke, the American decisions, and every one, without exception, of the standard authorities, English and American,' on Landlord and Tenant and Real Estate, cited in the first opinion, seem conclusive. On the statutory branch the acts are themselves conclusive.
When does impeachment for waste begin? When does it end ? How often may it spring up in the meantime ? What is the standard of damages? If the timber reproduces itself, is there a new right of action? If the timber be destroyed, and the whole of the section be put in cultivation, and worth, therefore, ten times more, as is often the case in Mississippi, how then ? If built up in fine brick structures, as is here and there the case in this state, how then? Shall the uniform action of seventy years, based on the universal popular construction, go for naught ? In view of long usage and public understanding, and of the fact that the w'hole country was forest, as here, and that there are six hundred and fifty sixteenth sections in the state, generally subdivided into small parcels, I cannot think that the subtenant is liable in damages for every load of wood he hauls to town for sale. When it is seen that the act of 1818 prescribes no form of lease, but specifies that the justices of the county court may lease for not more that three years and shall protect the lands “against improper waste of soil and timber”; when it is seen that no tenants could be had, in this then wilderness of timber under that statute; when it is seen that the act of 1824 prescribes no form of lease, but specifies that the trustees may lease for not longer than five years and “shall carefully and faithfully preserve the school lands and timber thereon from all improper waste,” and provided for suits for waste; when it is seen that no tenant could be had under that, in this then wilder*577ness of timber; when it is seen that the act of February 27, 1833, empowers the heads of families to compel the trustees to lease for ninety-nine years, and prescribes the very terms of the lease to be “to convey the right, title, use, interest and occupation of said sections,” when it is seen that this act is silent as to waste, and that its title, “An'act to authorize the trustees of school lands within each township in this state to lease the sixeenth sections within the same for ninety-nine years and for other purposes,” shows it to be an independent act, and that it concludes, “and that all acts and parts of acts contravening the provisions of this act be, and the same are hereby, repealed;” when all this appears, and-the code of 1880 is considered — -it will be seen what the lessee had the right to expect under solemn, enactment. What Cannon v. Barry or Learned v. Ogden have to do with ninety-nine-year leases of school lands, under express statute, cannot be seen with a microscope. That is true of all the cases, every one, referred to in support of the contention of appellee, except the Gans case, a small part of which I was, as is shown in the first 'opinion on the former hearing of this record. Here there is no concern whatever with leases of farms of cultivated lands. We have to do only with leases of virgin wildernesses under legislative act, and our business is to ascertain the intent of the parties in the light of the statutes, the construction put upon them by the whole people for seventy years, and the condition of the country when they were authorized by law.
There is no occasion, really, to resort at all to the common law. If there was, three distinct utterances of Lord Coke, the opinions of the greatest of the judges, and the views of the most eminent of the writers on Landlord and Tenant and Heal Estate law, cited in the former opinion of this court, ought to be reasonably satisfactory in support of common honesty. Inasmuch as the act of 1833 distinctly directs the trustees to “convey the right, title, use, and occupation of sixteenth sections *578for and during the full term of ninety-nine years,” it is plain that they had. to “convey,” and to “convey the title” for that term. So,the title, as of fee, itself, is conveyed for the term. No other construction is rational, especially in view of the previous legislation and the surroundings. , There ivas “a sale for a limited time of the school lands.” Davany v. Koon, 45 Miss., on page 75. This idea, and this idea only, is expressed in the sound concurring opinion of Judge Truly on the first trial in this court of this cause. It is inescapably correct. Fea simple right for ninety-nine years passed in the lands, and they are so taxed against the lessees -by express law. Deference to the Georgia decisions is curious indeed, even if they had any bearing on this case. The act of our legislature of 1807, still the law here, excluding all acts of parliament from any force, was passed fifty years before the Georgia decisions. That the statutes of Marlbridge and Gloucester are of no force in Mississippi is distinctly shown in Jordan v. Roach, 32 Miss., 482; Sessions v. Reynolds, 7 Smed. & M., 136; Boarman v. Catlett,, 13 Smed. & M., 149, and Ingraham v. Regan, 23 Miss., 213, all cited in the original opinion, and reannounced as late as 1904, in Bank v. Field, 84 Miss., 664, 665 (s.c., 37 South. Rep., pp. 139, 146),'in which it is said: “All the statutes of England not re-enacted in Mississippi, were, in the year 1807, excluded from operation within the territory of Mississippi.” This language precisely conforms tq the act of 1807, which ends in these words: “And all statutes of England and Great Britain, not contained in the said volume of statutes (Toulmin’s Digest), shall cease to have any force or validity in this territory.” So it is idle to talk of the statutes of Marlbridge and Gloucester having any sort of forc.e in Mississippi. It is equally idle to deny that these two English statutes were to-change the common law, thus showing that the parliament then thought the common law to be what Lord Coke says it was. That the common law remained the law of Mississippi, so far as suitable to our surroundings, and the act of 1833 was neces*579sarily passed in view of that, by every -rule of construction, and England, at common law, was in the same situation as Mississippi in 1833, hirsute with virgin forest, of which it was of great public interest to have it denuded. The common law of England and of Mississippi as to cultivated farms has no bearing on this question. If, as it is strangely enough argued, the statutes of Marlbridge and Gloucester are in force in Mississippi as common law, the.lessees of forests are liable in treble damages, which is nonsense.
Recovery for waste in this case would be in the face of the law taxing the fee instead of the lease, against the lessee, and giving the lessee the right to sue for and recover, and pocket, damages for waste. The whole tenor of all the statutes shows the legislative idea that these leases gave fee simple rights for the term. As instanced in the debate, if there was a lease in the Dismal Swamp, in the statutory terms, even without legislative and popular interpretation, could a court hold that the lessee could not cut trees ? In the numerous acts of our legislature, special for counties, before and since 1833, many do and many do not provide against waste, thus recognizing the common law. Entirely different principles control as to leases of cultivated farms. As to them, the common law, as applicable to Mississippi and her conditions, is to be known by the interpretation of custom and legislative action throughout the history of the state, and this principle should be applied here. Any effort to assimilate these sixteenth section leases to sales for homesteads is a boomerang* Leases of these sections are open to the bids of all comers. Homestead sales are for the specific purpose of homes, and for homes only. Where the meaning of a contract is not plain from its terms, the construction derivable from continuous general public usage is conclusive. It is believed that no case can be found in contradiction of this doctrine. Especially must it be true in arriving at the intent of-parties contracting in good faith and in reliance on the universal understanding of the state and people. Warren Co. v. *580Nall, 78 Miss., 727, 744 (s.c., 29 South. Rep., 755). Here there seems to be no doubt on the face of the laws. It is to my mind clear that the act of 1833 considered the whole matter, and repealed the requirements as to waste in .the acts of-1818 and 1824. Superadded to this, the public construction, the forms of the leases prepared by the attorney-general, the fact that the land itself, and not-the lease, is taxed, the fact of the statutory words for the lease, the fact of the language of the code of 1880, referred to, and its reference to “payment for the lands ” and common sense as applied to the situation, and it does not seem to me that there can be any doubt. This court was precisely right, in Davany v. Koon, 45 Miss., on page 75, in saying that the trustees of sixteenth section lands “are authorized by law to sell for a limited time the school lands.” That case was also right in holding that a lessee of such lands might sue in trespass for cutting timber, which right, in ordinary leases, pertains to the owner of the fee.
Calling attention again to the concrete case this court has in hand, it will be noted that the bill of appellee, the board of supervisors of Harrison county, itself says: “That said land, by reason of the character of the soil, is unfit for cultivation, and that the only value it possesses is given it by the merchantable pine timber growing thereon.” The same bill shows that the lessee paid $835 for the lease. So we have, on appellee’s contention, the purchase of the lease, the money paid and gone forever to the public, for absolutely nothing, and yet the lessee is bound to pay the taxes for ninety-nine years on the full value of the timber which he cannot use! ■ Consideration of these admitted facts makes to mv mind the grotesque absurdity of appellee’s contention glaringly apparent, and makes the public disgrace of compliance with it painfully manifest. The ultimate effect of public injustice is public injury. “He respiteth, •but suffercth not to escape.” The result of the appellee’s contention is that, though appellant' paid $835 in cash, the appraised value, for absolutely worthless land, yet he must pay *581taxes on it for its full value, with the timber on it, for ninety-nine years, and yet acquired no right- whatever, except the privilege of looking at the timber, which alone gave it value. If the view not in accord with this opinion be correct, it follows that no land, which has value only because of its timber, ever can be leased.
Nothing said in the original opinion, or the original concurring opinion by Judge Truly, or in this present opinion, holds that there is no remedy in case of malicious waste. What is held, and what I stand by, is that neither under the statute of 1833 nor the code of 1880 is waste, as ordinarily known in the books, punishable. If the land is worthless, except for its timber, it may be stripped of its merchantable timber for sale and profit. If it is suitable for • cultivation, it may be entirely cleared for cultivation, and this often largely increases its value.' In short, the tenant owns the fee for the term for every purpose of every action done in good faith for his profit. Homestead acts have no pertinency. The original opinion discusses the question through the whole history of legislation, from the act of 1818 up to and including the code of 1880; the purpose being to treat this grave public question on all leases of all dates.
I do not think that the fact of the lease gbing as an asset to the administrator, as chattels do, prevents the construction of the contract -to be that the lessee took with fee-simple rights in the use of the property by him, or those to whom it might go in the course of the administration of his estate. A lease with the right of a fee-simple owner may be provided by. contract,' whether it be for one or more years, and I think such rights went to the lessee under the statutes of 1833 and 1880. The particular words of the léase are of no sort of moment, as all know that the statute, and not the scrivener, makes the instrument. A prudent owner of the absolute fee would have cut the merchantable timber. I think a lease for any length of time of a forest, in the statutory terms or on statutory power, where the lands are valueless, would carry the right to cut the merchant*582able timber. It is folly to suppose that any lessor or lessee would think that absolutely nothing went by the lease, See all the decisions as to leasing of mines, etc. If a lake is leased, may not the lessee fish in it ? While the particular lease in controversy here was made after the enactment of the code of 1880, I nevertheless think that an inquiry, as to waste involves also the construction of the statute of 1833 and the precedent statutes on the'subject of such leases. At the same time I think the code of 1880 conclusive, of itself, of the concrete case.
/ After the whole substance of this opinion was written, for use in chief or as dissent, as the ease might be, I thought the public, in so important a matter, should have all the light obtainable. Accordingly, with the full concurrence of Judge Mayes, who was then considering the record, I sent a note to Judge J. A. P. Campbell, the Nestor and the Ajax of Mississippi jurists, requesting his views, which he was kind and patriotic enough to give, and which are as follows:
“The lease was under the code of 1880, which contains a complete set of rules for the sixteenth sections, and their disposition and proceeds, and superseded all former legislation on the subject, except as contained in it. Whatever may be true as to the act of 1833 in reference to its effect on the act of 1821, it is certain that after the code of 1880 no former legislation on the subject of sixteenth sections was in- force. The. question is: What right did a lessee of a sixteenth section under the code of 1880 acquire ? Although by ancient common law only tenants in chivalry, do.wer, and curtesy were liable for waste (none of which tenants we have), and the statutes of Marl-bridge and -Gloucester are not of force here as statutes,. I assume that we have a law of waste, in the breast of the judges, to be declared and ajoplied by the courts, and that,, when a lessee is exercising rights he. claims, but has not, to the injury of' the fee,- the court will interpose and apply- a remedy. In England the law of waste varies in different counties, because of varying conditions and customs among the people. Wlrat is consid*583ered waste in one is not in another. Why is not that true in our state, which has regions widely different by nature, in soil, growth, climate, and pursuits of the inhabitants? Both the terms and purposes of a lease are to be considered in determining the right of the lessee. Heil v. Strong, 44 Pa., 264. Here the statutes contain the terms of the lease. By it the land was to be appraised, and the land was to be leased for ninety-nine years. No distinction is made between the term and the fee, but the right of the best bidder was that of a lessee for ninety-nine years. It must be that he acquired the right to- make such use of it, and all constituting part of it, as it was capable of, adapted to, and suitable for. He could make such use of it, surely, as was the customary and approved use of like lands in the region in which it lay. He could not sell it, except for his unexpired term. He would have no right to destroy it, if he pould; but he has the right to occupy it, and use it, and make profit of it, by devoting it to the purposes to which such land was devoted by the custom of the country, and for which alone it was suitable. If it was suitable for agriculture, he could convert it into a plantation. If it was a lake, valuable for water and fish, etc., he could make use of it, but would have no right to destroy it, by draining or otherwise. If it was fit only for the trees growing on it, he had the right to fell and dispose of them for his own profit, if that was the customary use made of it, or for which alone it was suitable. He got that, or nothing, if that was all the land was adapted to. Such must have been the understanding of the lawmakers and of all the actors in the making of the lease. It is not for the courts to undertake to correct what they may now think was improvident legislation a quarter of a century ago.
• “When the law for leasing was passed, a large part of the lands of the state were at very low value. The pine lands of southeast Mississippi were considered of little value-. There were many thousands of acres of land held by the United States and offered for sale at $1.25 per acre. The act of 1880 safeguarded *584tbe value by requiring appraisement of tbe land and forbidding a lease for less than the appraised value. In this case it is reasonably certain that the appraisement was $1.25 per acre, the price of government lands, and the lease was.for a little more. It cannot be doubted that the universal popular understanding was that the lessee got the right to appropriate all the timber during his lease. The only factors of value were the trees. It is important to remember that this is not 'the care of arable lands, but of those whose whole value consisted in the pine trees; nor is it a case of lands part of which are arable, as in a case (40 N. C., 308) in which Ruffin, C. J., discussed the doctrine of waste. It certainly was intended by the law, and by all the actors, that the lessee should get the right to use the land for his own profit, according to its nature and capability. If valuable only for timber, he must have the right to use the timber; and, if any, what limit can be placed on his right? I see none, except to confine him to the trees which became merchantable during the term! The inquiry is: What right did the law contemplate to be conferred on the lessee? That is determinable by many pertinent considerations, which suggest themselves, and which I need not enumerate.”
This recited opinion shows the comprehensiveness, force, and condensation which alwáys characterizes Judge Campbell. I request particular attention of inquirers to the whole case of Davis v. Gilliam, 40 N. C., 308, cited in it, and quoted from in the opinion in chief on this suggestion of error. It falls among those decisions classified in my original opinion. Carefully read, it supports my view, as I think. I desire to say, also, that cutting merchantable timber is no hurt to a forest in ninety-nine years. If the cutting was of the younger growing trees, there might be a question here, perhaps. But the' cutting of merchantable timber, the land being useless for cultivation, as here, or, in cases where the land is cultivable, an entire clearing for cultivation, cannot be waste under our sixteenth section statutes. See Judge Buppin^s opinion in Davis *585v. Gilliam, 40 N. C., 308. It is thumb-paper learning that, in cases of-doubt, a contract is to be taken most strongly against the grantor or lessor. Who can say, at the least, in this case, that there is no doubt that the statute designed to carry impeachment of waste ?
It is not to be seen what chapters 40 and 41, p. 62, of the Acts of 1898, or the Constitution of 1890, have to do .with the contract in this.case, which was made in 1882. They deal with lands not then under lease, changing the terms and character of future leases, and authorizing sales of timber and leases for turpentine purposes. In this the legislature acted very wisely, on the greatly increasing value of timber at that time becoming apparent. But it did not attempt to, and could not, affect precedent contracts. It is too plain to argue that- section 211 of the constitution of Mississippi supports my view, in that it provides in the then future that the leases shall be for shorter terms, and says: “In case of uncleared lands,” etc., “may lease them for such short term as may be deemed proper in consideration .of the improvement thereofSuch great men as Harris, George, Simrall, and others knew what the precedent law meant. They had no idea of interfering, if they could, with previous contracts or jarring the public integrity. Judge Simrall delivered the opinion in Davany v. Koon, in 18Y1, nineteen years before.
Why Sackett v. Sackett, 8 Pick. (Mass.), 309, is cited, is not easily seen, since it shows that the statute of Gloucester wasexpressely adopted as law by Massachusettts. "Ex uno disce omnes.” Profit v. Henderson, 29 Mo., 325, was a life estate imder a will, recognizes the right to clear for cultivation, sheds no light on our statutes, or public leases where there can be no cultivation, and is silent ás to whether, in such case, it could be waste to cut merchantable timber, but really implies that it would not. It. is no help to appellee. U. S. v. Bostwick, 94 U. S., 53 (24 L. ed., 65), was a lease of a house by the month, and its destruction by fire, and simply announces, what is held *586in a thousand cases, that every lease carries “an implied obligation on the part of the lessee to so use the property as not unnecessarily lo injure it.” I fail to sec the application. Parrott v. Barney, 18 Fed. Cas., 1236, was about the destruction of property by an express company because of nitro-glycerine, and simply holds the tenant by the year responsible for this permissive waste. Thurston v. Mustin, 3 Cranch, 335 (Fed. Cas. No. 14,013), was cited in my original opinion, and I rely on it on one branch of the instant case. There is no need of appellee to stint-in space or number of cases. They can be stacked up as high as the dome of the capitol, and I might well approve them all with the utmost liberality. But they do not touch the matter in hand.
I cannot give my feeble sanction to the contention of appellee to support the idea that the statute, when it says “convey the title,” does not mean it to the innocent lessee, or that, when it says, “shall appraise the value of the land,” it does not mean “land” to the innocent lessee, or that Judge Simralu, in Davany. v. Koon, 45 Miss., 75, was talking loosely when he said the board was “authorized by law-to sell for a limited time the school lands.” He only said what everybody then thought was true. Neither can I assent to the idea that, in appraising the value of the land and leasing with that as a minimum, it was all a mere farce, and nothing in fact leased for the money paid, and yet the unfortunate lessee was to pay taxes on it for ninety-nine years. No case in law or morals approves this. No decision sustains a construction which makes the statutes mean the precise opposite of what they say.
Afterwards, following the second decision of the case, the appellants’ solicitors,- ' »
Ford & White, and Green & Green, filed a suggestion of error, but- the court overruled the same, the majority opinion being an oral one, b;ut