40 LEGAL WASTE OF TIMBER 



whether trees have been cut in good faith for purposes of 

 repair, x like the question of whether cutting for other 

 purposes has been reasonable and in accordance with the 

 custom of the country, has been regarded as one for the 

 jury. 2 



45. Local Custom and Previous Use are Impor- 

 tant Factors. In the United States, as in England, a 

 tenant may cut and use timber in the ordinary manner 

 in which it has been used on the premises, 3 or for such 

 uses as are necessarily incident to the purposes for which 

 the land was demised or leased. 4 Thus where land was 

 devised chiefly to provide a source of support to a life tenant 

 and the testator had so used the property as to indicate that 

 the cutting of timber was one of the profits which the land 

 was expected to produce, the cutting of a reasonable amount 

 by the life tenant was held not to constitute waste; 5 but 

 the fact that the amount of land already cleared was not 

 sufficient to support a life tenant has been held not to author- 

 ize the removal of valuable timber trees to the injury of 

 the inheritance. 6 



The cutting of oak for fuel has been held not to be waste 

 if such cutting were common usage in the locality where 

 done. 7 Under the same general rule a tenant in dower 

 has been permitted to cut and sell hoop-poles, 8 staves and 



1. Doe v. Wilson, 11 East, 56. 



Cutting trees on a ward's land is waste, except for necessary repairs. 

 Moorhead v. Hobbs, 7 Ky. L. Rep. 748: Torry v. Black, 58 N. Y. 185. 

 (rever'g 65 Barb. 414, 1 Thomp, & C. 42); Truss v. Old, 6 Rand. (Va.) 

 556, 18 Am. Dec. 748; Knight v. Duplessis, 2 Ves. 360, 28 Eng. Reprint 

 230. 



2. Jackson v. Brownson, 7 Johns. (N. Y.) 233, 5 Am. Dec. 258; Drown v. Smith, 52 



Me. 141; King v. Miller, 99 N. C. 583. 6 S. E. 660; McCullough v. Irvine's Exr's, 

 13 Pa. 438; Rutherford v. Wilson, 95 Ark. 246, 129 S. W. 534; Warren Co. v. 

 Gans, 80 Miss. 76, 31 So. 539; Chase v. Hazelton. 7 N. H. 171; Kidd v. Denni- 

 son, 6 Barb. (N. Y.) 9; Keeler v. Eastman, 11 Vt. 293. Eng. Doe v. Wilson, 

 11 East. 56, 103 Eng. Reprint 925. Can. Campbell v. Shields, 44 U. C. Q. B. 

 449. 



3. Patureau v. Wilbert, 44 La. Ann. 355, 10 So. 782. 



4. Neel v. Neel, 19 Pa. St. 323; Wilson v. Smith, 5 Yerg. (Tenn.) 379, 381 ; Findlay v. 



Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733; Den v. Kinney. 5 N. J. L. (2 South- 

 ard) 552; McDaniel v. Callan, 75 Ala, 327 



5. Beam v. Woolridge. 3 Pa. Co. Ct. 17; See also Honywood v. Honywood, L. R. 



18 Eq. 306; Williard v. Williard, 56 Pa. St. 119; Dashwood v. Magniac (1891) 

 3 Ch. 306; Angier v. Agnew, 98 Pa. St. 587, 42 Am. Rep 624. 



6. Robertson v. Meadors, 73 Ind. 43 



7. Babb v. Perley, 1 Me. 6; Padelford v. Padelfonl. 7 Pick (Mass.) 152: Lester v. 



Young, 14 R. 1. 579. 

 S Clemence v. Steere, 1 R. I. 272. 53 Am. Dec. 621. 



