Majority
p. 573*Gardiner v. Derring and Hempstead. August 4th.
Headnote
A tenant for life has the right to take from the premises reasonable firewood for the use not only of the house which she herself occupies, but also sufficient to supply the house of her servant who cultivates the land, provided it can be done without injury to the inheritance.The defendant Mrs. Herring is tenant in dower of 175 acres of land on Shelter Island, upon which there is a dwelling-house which she occupies. There is also a small-house on the premises which she holds under a lease from a former owner of the farm. This house is occupied by the defendant Hempstead, who works the farm for her. She hi aims the right to take reasonable firewood from the premises not only to supply herself but Hempstead also. The complainant filed his bill in this cause, and obtained an injunction restraining the defendants from taking any wood for the use of the small house. On the coming in of the answer, a motion was made to dissolve the injunction.
W. N. Dyckman, for the complainant.
p. 574cited Co. Lit. 416; 2 Black. Com. 35, 123, 4; Shep. Touch. 93, n. 1; Cruise’s Dig. tit. 3, sec. 10, and tit. 8, sec. 1.
D. Lord, jun., for the defendants,
The Chancellor :—The tenant for life is entitled to take reasonable firewood from the farm for the supply of those who occupy it; provided it can be done without injury to the inheritance. It is not absolutely necessary that the wood should be burnt on the premises; provided it is taken in good faith for the use of the tenant, and her servants, and in reasonable quantities. There is nothing in the bill or answer in this case to show that the quantity claimed is unreasonable, or that the inheritance would be injured. If the tenant in dower commits waste, she forfeits her estate. The court will not presume a forfeiture where no acts amounting to waste are alleged or shown.
The injunction must be dissolved.