Livingston v. Reynolds

Headnote

A tenant for life; though entitled to reasonable estovers, has no right to dig up and use soil or wood on the demised premises, with a view to the manufacture of bricks for sale ; and if he do so, the landlord is entitled to an injunction restraining him from committing further mischief of the like character.

Appeal from the court of chancery. On, the 22d of May, 1830, the appellant filed her bill of complaint before the chancellor against the respondent, and obtained an injunction. The respondent’s answer was filed and served on the 13th of July, 1839 ; and upon that, and also upon affidavits served therewith, he moved for and obtained a dissolution of the injunction. The leading facts sufficiently appear in the following opinion of the chancellor, assigning his reasons for the decision made by him. Some additional facts are noticed in the opinion of Mr. Justice Cowbn :

“ The Chancellor. This is an application to dissolve an injunction restraining the defendant who is a lessee of the premises for lives, from digging up the soil for the purpose of making brick, and from cutting any wood or timber, except for fencing or fuel. The covenant in the lease is that the lessee will not cut down, take or cony away upon or from the farm any more wood or tipaber than shall, be actually used and employed thereon, and will not make or suffer to be made any manner of waste, sale or destruction of the wood or timber as aforesaid, by any ways or means whatsoever. It appears by the answer that no waste has been committed, and no wood cut down to be carried off the premises ; but that the defendant has cut and claims the right to cut the wood for the purpose of burning brick at a brick kiln on the premises, and to use the clay for the purpose of making brick.

“ The restriction in this lease does not prevent the defendant from cutting wood for the burning of brick on the premises, any more than from using it for fuel for his house, provided it is not contrary to good husbandry so as to be included in the I general prohibition against waste. It is not alleged in the bill that the burning of bricks is an unusual business on this and other farms in the neighborhood, or that it is contrary to good husbandry to use a portion of the wood for that purpose; or even that the burning of bricks is a new business which was not carried on there at the time of giving the lease.

“ Upon the facts as they now appear, I think the injunction should be dissolved, and that the complainant should be left to her remedy at law, by an action of covenant or of waste, if the burning of bricks- or cutting wood for that purpose is actual waste. It does not appear to be a case of sufficient importance to authorize. this court to interfere by a preliminary injunction before the complainant has established her right at law. The injunction must therefore be dissolved.”

From the chancellor’s order dissolving the injunction, the complainant appealed.