BURTON W. WAPLES and others vs. DAVID H. WAPLES, 2 Harr. 281

The Chief Justice, (John M. Clayton,) charged the jury: Action by the heirs of Woolsey Waples, against their brother and co-heir David H. Waples for waste and destruction done by him to the land which descended to them all equally from their father. The issue is a question of waste or no waste. Woolsey Waples died seised of two tracts of land in this county, one of which was afterwards sold by the sheriff, for the payment of his debts; and the other is a tract of woodland of fifteen acres or thereabouts. It is alledged that waste has been committed on this land. Three things are to be considered by the jury. 1st.

Plaintiff’s interest in the premises and the holding of defendant. 2d. The waste. 3d. The damages.

As to one of the tracts, that which was sold by the sheriff, the court refused to permit evidence to go to the jury of waste done on that part, because it was admitted that this tract had been sold by the sheriff for the payment of the debts of Woolsey Waples, before this action brought; and we think the plaintiffs cannot recover as to this waste, because the inheritance was not in them : as to the fifteen acres of woodland, it has been contended that no recovery can be had by the plaintiffs in this action, unless they have proved a cutting of timber trees, and such is our opinion.

But it is for the jury to decide what are timber trees. Trees fit for building houses is the example given in the books. If trees fit for this purpose are cut, it is waste, unless those cut are of dead or decaying timber, called timber proper to be cut. It is contended that a cutting by one co-tenant in common, of trees proper to be cut is no waste. We assent to that; but what is proper to be cut is to be ascertained. The rule is what will injure the inheritance.

If trees be-decaying and must soon die, the inheritance cannot be injured by cutting them, for they would fall of themselves or decay : but it does not follow that because trees are full grown or ripe, that one coparcener may cut them ; he may cut only where the timber is such that the cutting it w'ould not prejudice the inheritance. If timber has been cut by the defendant, how much cutting will amount to waste? Is it true that the cutting of a single tree, or of twenty of fifty trees in one thousand acres is waste? What is the rule?

The cutting of any timber trees is waste; but the cutting one tree is not a waste of the whole tract. A cutting on erne acre is waste of that acre; a cutting promiscuously all over the tract, is a waste of the whole tract. The jury must find how far the waste extends ; over how many acres; and they ought to describe the place wasted by bounds, or by other terms, so that it can be known. Coke says, if waste be done sparsim here and there in woods, the whole woods shall be recovered, or so much wherein the waste sparsim is done.

And so in houses, so many rooms shall be recovered wherein there is waste done; but if waste be done sparsim throughout, all shall be recovered. Coke Litt. 53, b. A question may arise of what value must the timber be in order that the destruction may be deemed waste Coke says, trees to the value of three shillings and four pence have been adjudged waste. Co. Litt. 546; and Hale, to the value of four pence. The rule we would lay down is, that it must appear to the jury that a material injury has been done to the inheritance; and that is waste.

If ten, twenty, thirty or more oaks have been cut, no doubt it is waste; but the jury should find in what part of the land the waste is committed, in order that the forfeiture may be confined to that.

So that no idea need get abroad in relation to this action of waste, new as it is in our practice, that the cutting a few trees by a co-tenant in common or coparcener, will create a forfeiture of his whole inheritance in the land; because the jury may and must confine the forfeiture to the place wasted; and if waste has been committed all over the land, it would be nothing more than right that the co-tenant thus injuring the inheritance should forfeit his right in it.

As to the damages, the jury should find only the exact amount of the damage proved to be done; nothing by way of punishment or example, for the law punishes the defendant by directing the court to double the damages found, and by superadding a forfeiture of the place wasted, This is a salutary provision, because of the relation in which these parties stand to each other. They have all a right to enter; and, to a certain extent, to use the land; and if under color, or by means of this right, any one will violate the rights of his co-tenants and waste the inheritance, it is but just that he should suffer for it.

Verdict. — “And the jurors aforesaid, on,their oaths and affirmations, respectively aforesaid, do find for the plaintiffs, and that the said David H.

Waples did make waste, sale and destruction, in the said lands and premises, with their appurtenances, that is to say, by felling, cutting down, prostrating, selling and burning, and causing to be felled, cut down, prostrated, sold and burned ; thirty red and black oak timber trees, each of them of the value of fifty cents; four white oaks, each of them of the value of fifty cents; fifty hickories, each of them of the value of fifty cents, amounting in the whole to the sum of forty-two dollars lawful money, as aforesaid, in a certain tract of woodland, parcel of the said premises, and lately growing promiscuously here and there, within the limits of the said woodland, meted and bounded as follows, to wit: (the jury here described the metes and bounds from a return made to the Orphans’ Court on the assignment of the widow’s dower of Woolsey Waples,) containing by computation fourteen and three quarters acres of land, being parcel of the said premises and lately growing promiscuously here and there, within the limits of the said woodland, in manner and form as the said Burton W.

Waples and others (naming all of them) have, by their said declaration, supposed; and as to the residue of the said waste supposed to be done, the jurors aforesaid, upon their oath aforesaid, further say, that the said David H. Waples made no waste, sale or destruction therein, as the said B. W. Waples (and others) have above thereof in pleading alledged ; and ihey assess the costs and charges of the said B. W.

Waples (and others) about their suit in this behalf expended to six cents, besides the costs expended, and so they say all.” On this the plaintiffs moved the court for judgment; and to double the damages agreeably to the act of assembly in that behalf. And the defendant’s counsel moved in arrest of judgment. 1st. Because (though granted on the motion of plaintiffs) there had been no view. 2d. Because the narr. did not show that the waste declared for was committed after the passage of the act of assembly. Ridgely. — The application for a view was on our own motion, and was resisted by the other side.

They cannot complain that it was not had. It is like the rule commission; to be executed or not, at the election of the party praying it. (6 Comyn’s Dig. view B.) After verdict in assize, default of view shall not be slledged. 2 Tidd. 647. 2d. As to the other objection, it was matter of proof on the trial, and could only have been taken before the verdict. The narr. also alledges that the waste was done against the form of the statute. Cullen. — The court cannot give judgment because the record does not show a breach of the law.

The narr. contains no time at which the waste was committed, and in so highly penal an action, the court will not intend that it was after the statute. The allegation that it was done contra form am statuti does not refer to what statute and may apply to the Statute of Merton. 2d. As to the view. The rule for view when granted became obligatory and could not be dispensed with. The defendant obtained an interest in it. Here has been a trial and verdict without a view, and it is error.

The authority of Tidd shows that until the court interfered and made it a part of the rule that it should be no objection that no view was had, or that six of the viewers did not appear, it was fatal. By the Court. 1st. as to the view. On the English rule, if this be an exception, it should have been made at the trial. It is an objection to the jury. It7s just like the rule for a struck jury; if no jury be struck, the parties may go to trial by a general jury.

Just so here; the party who got the rule could execute it or not; or at least, if there was any exception to their going to trial without the view, it ought to have been taken before the trial, like all exceptions to the jury. 2d. As to the narr. That it does not appear by the record that the waste occurred before the act of 1829. If it had not been for the plea of the act of limitation, it might have been fatal. The narr. ought to have, contained a date. But our act of jeoffails, directs us not to arrest ihcr*judgment, if on the whole record there appears sufficient to sustain it. We look into the whole record.

We know judicially the time of the commencement of the action; there is a plea of the statute limitation, and we must have charged the jury that no damages could be assessed for waste done more than three years before the commencement of the action, which was long since the passage of the act. On the whole then, we see enough on the record to authorize the judgment; we therefore, according to the act, direct the damages to be doubled, and give judgment accordingly ; and that the plaintiffs recover the plea wasted. C. G. Ridgely and Brinckloe, for plaintiffs. Cullen and Rogers, sen'r., for defendant.

Judgment — And now to wit, this 17th day of October A. D. 1837, the said Burton W. Waples and others, (naming them) pray judgment against the said David H. Waples, the defendant in this cause in and upon the verdict by the jurors aforesaid, of the place wasted as above found by the jurors aforesaid, and double the damages- as found by the jurors aforesaid, on occasion of the said waste, according to the form of the statute in such case made and provided; it is, therefore, considered, ordered and adjudged by the said court, that the said Burton W.

Waples and others, (naming them,) do recover of and from the said David H. Waples the place wasted as aforesaid, found by the jurors aforesaid, and also the sum of eighty-four dollars, being double the damages as found by the jurors aforesaid, with six cents costs besides the costs expended.