34 LEGAL WASTE OF TIMBER 



the right of a tenant for life under a demise or settlement, 

 but, apparently the same rule would obtain under a lease,, 

 except as the lease itself should extend or abridge the right 

 to cut timber. 



40. Waste in America. Because of the large quan- 

 tity of wild and wooded land which has heretofore always, 

 existed in most parts of America, and the consequent 

 supply of construction timber readily available, the distinc- 

 tion between timber trees and non-,timber trees which ob- 

 tained under the common law as administered in England 

 has been softened and evaded by American courts. The 

 distinction still exists in the law but the differentiation is 

 not so clear as formerly and the test as to whether the cutting 

 of certain trees constitutes waste has become one as to the 

 purpose of the cutting and the actual effect of the cutting 

 upon the estate as capital, or a source of income, rather 

 than one as to the intrinsic character of the individual 

 trees cut. 1 A marked modification of the English doctrine 

 of waste has resulted. Acts which in England would un- 

 questionably constitute waste are not considered waste 

 in the United States. - AH related facts and surrounding 

 circumstances, including the relation to the land which is 

 sustained by the tenant, will be taken into consideration 

 in each case that arises under the American doctrine of 

 legal waste. 3 



41. General Principles in both England an d Amer- 

 ica. The common law rule still obtains that trees which 

 are not classed as timber trees, either by general, or by 

 local, custom, may, generally speaking, be cut by a tenant 

 in reasonable quantity without liability for waste. 4 The 



1. Babb v. Perley, 1 Me. 6; Cannon v. Barry, 59 Miss. 289. 



2. Drown v. Smith, 52 Me. 141; Crockett v. Crockett, 2 Ohio St. 180. 

 See citations under Note 37, 16 Cyc. 627. 



3. Moss Point Lumber Co. v. Harrison County, 89 Miss. 448, 42 So. 290. S73; Web- 



ster v. Webster, 33 N. H. is, 25. 66 Am. Dec. 705: McCiillough v. Irvine, 13 Pa. 

 St. 43S. Am. & Eng. Ency. Law, 2cl Ed., Vol. 30, p. 240; Note 4. 40 Cyc. 501; 

 Cf. Acts of Ex'r and Adm'r, McNichol v. Eaton, 77 Mo. 246; McCracken v. 

 McCracken, 6 T. B. Mon. (Ky.) 342. Finley v. Pears in. 7ft S. W. 374. 2.'> Ky. 

 L. Rep. 766; Gordon v. Wfst, 8 X. H. 44t; Costo v. Kirz.l 27 W.Va. 750; 

 Overton v. Overton, 10 La. 472. 

 Acquiescence in waste by another. Pearson v. Darrington, 32 Ala. 227. 



4. Zimmerman v. Shreeve, 59 Md. 357; Miles v. Miles, 32 N. H. 147, 64 Am. Dec. 



362; 4 Kent's Com. 73. Am. Eng. Enc. Law V. 28 p. 537, 2d ed. 



