This bill is filed by Luther Guest and Tom G. Guest as executors of the estate of John N. Guest, deceased, and by them individually (N.M. Guest, Mrs. Dorah Sizemore, Mrs. Lucinda Thornton, Mrs. Ida Bell Yancey, and Mrs. Janie Brown, joining them as co-complainants), against Milo Guest and Mrs. Sallie J. Guest, their agents, servants, and employees, to enjoin the commission of waste on the southeast quarter of the southeast quarter, section 11, township 10, range 6 east, situated in Etowah county, consisting of 160 acres, known as the "Jake Reeves' place."
The evidence is without dispute that the said Reeves' place was devised by the will of John N. Guest to his widow, Sallie J. Guest, for life, with direction in said will to sell the same on the falling in of the life estate by the death of the life tenant and divide the proceeds between certain of the legatees.
The evidence is without dispute that the timber was cut and removed from the land, by the direction and with consent of the life tenant in possession for the purpose of converting the twenty to twenty-three acres from woodland to arable land; that said Milo Guest was given the timber for doing the clearing; and that he in turn had the merchantable timber sawed into lumber, giving the sawmill man one-half for the sawing, after Milo had delivered the timber to the mill. There was an absence of evidence showing a decrease in the market value of the land as a result of cutting the timber, or as to the reasonable cost of clearing the land.
The life tenant received nothing except the benefits accruing to her in consequence of converting the lands into arable lands, and the increase in the rental value thereof.
The evidence, in its lights most favorable to the complainants, shows that the tract consisted of 160 acres, and from 35 to 60 acres had previously been put to cultivation. With the "new ground," the aggregate made arable did not exceed 80 acres, leaving 80 of *Page 587 woodland. That some of the old cleared lands — some 10 to 12 acres — had become worn from constant cultivation, and that the practice of good husbandry according to the standards of the locality was not impinged by the clearing.
That the lands cleared were average farm lands, and the evidence shows that in some of the years after said clearing and pending the suit the "new ground" produced eight bales of cotton to ten acres, and some produced fifteen bushels of corn to the acre. The evidence further shows that the clearing enhanced the value of the tract for farming, the use to which it was subjected by the life tenants.
There is an absence of averments or proof that the defendants or either of them are insolvent. The evidence is to the contrary.
It seems to be well settled that "an injunction may be granted to prevent a threatened waste where the defendant is insolvent and the injury would be irreparable; or even where the damages are not irreparable, where it is entirely incapable of measurement at law. Even in cases of tenants in common, court of equity will interfere where the party committing the waste is insolvent; or where the waste is destructive of the estate, and not within the usual legitimate exercise of the right of enjoying it. But the insolvency of the defendant is not itself sufficient to authorize the granting of injunction. There must be some other equitable grounds for the interposition of the court, such as irreparable injury." 27 R.C.L. 1046, § 38; Lyon v. Hunt, 11 Ala. 295, 46 Am.Dec. 216; Wadsworth v. Goree, 96 Ala. 227, 10 So. 848; Coker v. Whitlock, Trustee, 54 Ala. 180; 67 C.J. 630, § 28.
The complainants' right to maintain the bill cannot be measured by the value of the timber cut nor the value of the merchandisable lumber manufactured therefrom, but only by the damage to the reversioner as a chattel real. Stoudenmire v. DeBardelaben, 85 Ala. 85, 4 So. 723; Lowery v. Rowland et al.,104 Ala. 420, 16 So. 88; Riggin v. Hogg et al., 203 Ala. 243,82 So. 341; Fuller v. Fair, 202 Ala. 430, 80 So. 814.
The circuit court, it seems, in holding that appellants were guilty of waste proceeded on the theory that although the life tenant had a legal right to clear the 20 acres and put it to cultivation and could use the timber removed therefrom for fire wood, and to repair buildings and fences, she had no right to sell any part of the timber or lumber, and if she did or allowed it to be done, she and her codefendant were guilty of waste and must account for the proceeds thereof.
Nearly a century ago — to be exact, 92 years — this court recognized the right of the dower tenant, "when the land of the dower estate was old and worn, to clear new land, if the proportion of woodland was such that a prudent farmer would consider it best to reduce a portion of it to cultivation, thereby to relieve the old land from excess cultivation" without liability to account for the timber removed from the land. In Alexander et al. v. Fisher, 7 Ala. 514, the bill was filed, to quote from the reporter's statement of the case," * * * by the heirs at law of Edmund Alexander, deceased, against Fisher, who intermarried with the widow of said Alexander, to restrain him in committing waste in certain lands, which were attached as dower to his wife, as the widow of the said Alexander.
"The dower lands consist or four hundred and ninety eight acres, including the late residence and dwelling house of Alexander, about two hundred acres of which are alleged to be cleared, and under fence, for cultivation, and the remainder uncleared and uninclosed, with the exception of some small portions of lots or pasture grounds. The waste is asserted to have been committed in cutting down and clearing, in the year 1841, of ten or more acres of the woodlands; in pulling down and removing a line of fence inclosing the old lands; in destroying a fine grove of walnut timber; and in doing considerable damage to the growing timber.
"It is also asserted that the uncleared lands are broken, composed of light and sandy soil, which will soon be destroyed by cultivation, and that Fisher, when requested by one of the complainants to stop this waste, declared, that he should cut, and clear, as he pleased, and work the lands with a view to his own interest, disregarding that of those who might come after him, and that at the time of filing the bill, he was preparing, by cutting out the undergrowth, to clear more land.
"It is asserted, the grove of walnut trees alleged to have been destroyed, was left *Page 588 by Alexander, to break the fogs and damps arising from the river, the grove lying between that and the mansion. Some of the lands cleared by Fisher, it is alleged, were enclosed in lots, for pasture, and the trees left for timber, shade and ornament, and those he is about to clear are adjacent to those last described."
The answer of the defendant admitted cutting the timber for the purpose of reducing the woodland to arable land.
"The Chancellor considered that no waste had been committed in a legal sense, and refused to enjoin the defendant from clearing more land, as it was not shown that it was intended to reduce the proportion of woodland improperly.
"The bill having been dismissed, the complainants insist here, that they are entitled to an injunction against further waste, as well as compensation for that already committed."
The court speaking through Goldthwaite, J., observed:
"We can perceive nothing in the proof in this cause, or in the admissions of the answer, which will warrant a different decree from that rendered by the Chancellor.
"It is true, that in England, it is waste for a tenant in dower to convert woodland into arable, Coke on Litt. 53, b.; but it is evident that the rules which govern and define waste in an old, well settled, cultivated country, have either no application, or at best a very remote one, to a new country, where the timber is of little or no value, and where its destruction is always the preliminary to successful cultivation. Even in England, that which is waste by a tenant in one county, is not always so in another. So, too, with us, it is very evident that in some parts of the State, a destruction of timber would be of lasting injury to the inheritance, whilst in other parts, the same act would be beneficial.
"A number of adjudications have been made in our sister States upon this subject, which show that the subject matter is capable of no general and fixed rule, from the great diversities which exist between the several States, both with respect to the articles produced, as well as in the manner of cultivation; to say nothing of the different and relative values of lands and timber. Findlay v. Smith, 6 Munf.[Va.] 134, 8 Am.Dec. 733; Crouch v. Puryear, 1 Rand[Va.] 258, 10 Am.Dec. 528. In Hastings v. Crunckleton, 3 Yeates [Pa.] 261, the Court held that a tenant in dower may clear woodlands, if the land cleared bears a proper relative proportion to the whole tract. To the same effect is Parkins v. Coxe, 3 N.C. [2 Hayw.] 339; and we presume many other cases involving the same principle may be found in the reports of other States.
"The Supreme Court of Tennessee, in Owen v. Hyde, 6 Yerg. 334, 27 Am.Dec. 467, assert, that the general criterion by which to determine whether waste has been committed, is, to ascertain whether lasting damage has been done to the inheritance, or its value depreciated. That Court also recognized the right of a tenant in dower, when the land of the dower estate was old and worn, to clear new land, if the proportion of woodland was such that a prudent farmer would consider it best to reduce a portion of it to cultivation, thereby to relieve the old land from excess of cultivation. We entirely concur in this view of the law of waste, as peculiarly applicable to many parts of our own State.
"2. It is proper, however, to remark, that we desire not to be understood as asserting, that a tenant in dower, has the absolute right, at pleasure, to cut down or otherwise destroy the growing wood upon the dower lands. Doubtless all such tenants are entitled to house bote, fire bote, and fence bote; in other words, to the timber necessary for fire wood, and for the repairs of the buildings and fences upon the dower lands; but beyond this, it seems that the tenant's right does not extend, except it be within the rule before recognized, to wit:that the change from woodland into arable, is productive of nolasting injury to the inheritance." (Italics supplied.)
When these utterances are considered in the light of the facts of that case and the result of the litigation, it is clear that the court did not hold that in exercising good husbandry in clearing, the life tenant was limited in the use of the timber cut from the clearing to fuel wood and timber or lumber for repairing fences.
The rule established by the great weight of authority in this county is that where the clearing is in good faith and consistent with the practice and uses of good husbandry, for the purpose of converting *Page 589 woodland into arable lands, and is without detriment to the estate in reversion or remainder, the life tenant is entitled to dispose of the timber cut from the land without liability to account therefor. Jones et al. v. Sandlin, 205 Ala. 67,87 So. 850; Westmoreland v. Birmingham Trust Savings Bank, 214 Ala. 593,108 So. 536, 538, 46 A.L.R. 1201; Warren County v. Gans et al., 80 Miss. 76, 31 So. 539; Rutherford v. Wilson,95 Ark. 246, 129 S.W. 534, 37 L.R.A.(N.S.) 763; Derham v. Hovey,195 Mich. 243, 161 N.W. 883, 21 A.L.R. 999, note p. 1015, "A relaxation of strict rule," 1018 "a proceeds of timber."
The note to Rutherford v. Wilson, 37 L.R.A.(N.S.) 771, states: "The rule established by the weight of authority in this county permits the tenant for life to cut timber for the purpose of clearing the land, provided the part cleared, with that already prepared for cultivation as compared to the remainder of the tract does not exceed the proportion of cleared land to woodland usually maintained in good husbandry; and provided further he does not materially lessen the value of the inheritance." Cited as supporting that rule are cases from Alabama [Alexander v. Fisher, 7 Ala. 514] Arkansas, Georgia, Missouri, North Carolina, New York, 4 Kent's Commentaries; Pennsylvania, Vermont, Wisconsin, and Canada.
27 R.C.L. p. 1028, § 15, thus states the rule: "Subject to the limitations affecting the right to clear the land, the life tenant is entitled to the timber or the proceeds thereof, which he in good faith, cuts for the purpose of clearing the land and fitting it for cultivation. This rule, however, applies only to timber cut by the life tenant for the primary purpose of clearing the land, and does not conflict with the rule that a tenant for life may not cut timber for sale."
This rule and its limitations were recognized in Westmoreland v. Birmingham Trust Savings Bank, supra, in the following statement taken from that opinion: "Making merchandise of standing timber by a life tenant is waste. He is liable to account therefor, whether committed actively or permissively. This rule is subject to certain incidents of the life estate in the matter of clearing lands for cultivation and marketing timber removed."
The rule was quoted from 16 Cyc., with approval, in Jones v. Sandlin, 205 Ala. 67, 68, 87 So. 850, 851, as follows: "The tenant in this country may usually remove timber so as to fit the land for pasture or cultivation, the rule being that such clearing is not waste if it does not damage or diminish the value of the inheritance and the acts of the tenant are conformable to the rules of good husbandry; and in such cases the timber removed may be sold by the tenant or used off the premises."
The rule is restated in 67 Corpus Juris, 619: "It is not ordinarily considered waste to cut down wood for timber so as to fit the land for cultivation or pasture, provided this does not damage the inheritance, and is conformable to the rules of good husbandry." Citing, as supplying the text, Alexander v. Fisher, supra.
"The general rule as to burden of proof in actions at law and in equity apply in actions for and to enjoin waste. It devolves upon the plaintiff (or complainant) to show that waste has been committed to his injury, and the amount of damage, if any to the freehold. This includes the burden of proving that the alleged acts of the tenant was not rightfully done, for the presumption is in favor of the latter until the contrary appears from the evidence." 67 C.J. 635, § 40.
The foregoing was written after the case was carried to a general conference, with the expectation that it would be adopted as the majority opinion.
The writer deems it not out of place to make application of the rule of the majority opinion to the facts as found by the majority, as the writer understands such finding.
The rule of the prevailing opinion is that, though the life tenant had the right to clear the land, and the clearing was consistent with good husbandry, yet, if she cut more timber therefrom than was necessary to pay for the clearing, she is liable for the proceeds. This rule is contrary to the settled law as shown above and is without support of authority, but, for the sake of argument, its soundness may be conceded. There is nothing to show that more timber was cut than would reasonably pay for clearing, and, as we have shown, the burden of proof was on the complainants. It is not improper to ask: What would be the reasonable *Page 590 cost of clearing 20 to 23 acres of woodland? Would $10 or $15 per acre be excessive? The evidence is silent.
Assume, as the majority contends, that the defendants cut 50,000 feet. The prevailing opinion states the rule that the value of the manufactured lumber is not the criterion for estimating the damages. What of stumpage at $2 or $2.50 per thousand? Its value would be $100 or $150. If the reasonable costs of the clearing was $10 per acre, it would cost from $200 to $230 to clear the land, and the value of the stumpage would not pay the cost of clearing. A very good reason for the parties not offering evidence showing the reasonable cost of such clearing is, that the rule of the prevailing opinion is the first utterance of any such rule to be found in the books.
The decree as affirmed clearly penalizes the life tenant as the owner of the life estate in the Reeves' tract; and in my opinion is indefensible and should be reversed, and the bill dismissed.
I therefore respectfully dissent.