48 LEGAL WASTE OF TIMBER 



would apply to injuries to young timber trees. The turn- 

 ing of water into a swamp in such manner as to destroy 

 the timber has been held not to be waste if the act was one 

 of good husbandry. 1 



There has been a tendency on the part of New England 

 courts to follow the English common law more strictly 

 than other American jurisdictions, ane the decisions in 

 some of those states indicate that any tenant in possession 

 is entitled only to estovers; 2 and that any extension of 

 the cultivated portion of a farm, at the expense of the 

 timberland, even when the greater part of the premises 

 is woodland, will be considered waste regardless of an in- 

 crease in the value of the premises as a result of such clear- 

 ing. 3 



52. Special Statutes Permitting or Forbidding the 

 Cutting of Timber. Early laws in the New England 

 states made provision for the cutting of timber from lands 

 held under a tenancy other than fee simple, or by a guar- 

 dian or administrator, in order to preserve its value. 4 

 There are now laws in many states authorizing the removal 

 of growing timber under order of a court from lands held in 

 dower, curtesy, or other life tenency, or by a guardian or an 

 administrator. 5 Such laws provide that the proceeds of 

 the sales shall be administered as realty. 



Any cutting not done under authority of an order of a 



1. Jackson v. Andrjw, 18 Johns (N. Y.) 431. 



2. Ford v. Erskine, 50 Me. 227; White v. Cutler, 34 Mass. (17 Pick.) 248, 28 Am. 



Dec. 296; Clark v. Holden, 73 Mass. (7 Gray) 8, 66 Am. Dec. 450; Chase v. 

 Hazelton, N. H. 171. 



3. Pynchon v. Stearns, 52 Mass. (11 Mete.) 304, 45 Am. Dec. 207; Clemence v. 



Steere, 1 R. I. 272, 53 Am. Dec. 621; See Landlord and Tenant, T ffany, Ed. 

 1910, p. 708, Sec. 109 a-2. 



4. Me. Act. Feb. 28, 1821, Laws of Me.. Brunswick, 1821, Vol. 1, p. 126. 

 Mass. Act. Feb. 18, 1819, S. L. 1818, ch. 96. See Gen. Laws Mass., Boston, 



1823, Vol. 2, p. 484. 

 N. H. See Gen. Stat. Manchester, 1867, ch. 182, sec. 6, p. 372. 



5. See the following: 



Conn. Gen. Stat. 1902, sec. 226 and 241. 



Me. Rev. St. 1903, p. 649, sec. 1 (for ward), p. 869, sec. 1-4 (life estates). 



Md. Public Gen. Laws 1904, Art. 93, sec. 159. 



Mass. Rev. Laws 1902, ch. 146, sec. 19, Vol. 2, p. 1318 (for ward); ch. 134. 



sec. 11, Vol. 2, p. 1269 (life estates). 



Miss. Annotated Code, 1906, sec. 2418 (1892, sec. 2202.) 

 N. H. Public Statutes, 1901, Chase, ch. 194, sec. 4, p. 637. 

 N. C. Revised Laws 1908, Pell, sec. 1790 (guardian may sell.) 

 R. I. Gen. Laws 1909, p. 871 (any tenancy not in fee simple.) 

 Va. Code 1904, sec. 2616 and 2620. 



