Persons for and against whom injunction granted. application of the doctrine, being an instance of the most extravagant, wilful, malicious and destructive waste that can be imagined. Lord Barnard, who was tenant for life without impeachment of waste, of Raby castle, under the marriage settlement of his son,(a) in consequence of some displeasure which he had conceived against him, got two hundred workmen together, and stripped the castle of the lead, iron, glass, doors, boards, &c. to the value of £3000, and was proceeding to pull it down: Lord Cowper, without any hesitation granted an injunction; and a commission was (a) Gilbert's report of this case, by a strange blunder, represents him to have been tenant by the curtesy. Strathmore, who was tenant for life, without impeachment of waste, from cutting trees in the rides or avenues to the house, or that served for shade or ornament, or were unfit to be cut as timber. Lord Kenyon (M. R.) granted the injunction, saying it ought to include everything useful or ornamental to the house; and said he thought himself bound to grant it as to the ornamental trees, though they should not be planted trees, but growing naturally; also to extend it to young saplings, and trees not fit to cut as timber. Strathmore v. Bowes, 2 Bro. C. C. 88; Downshire v. Sandys, 6 Ves. 108; Tamworth v. Ferrers, id. 419; Day v. Merry. 16 Ves. 375; Coffin v. Coffin, Mad. & Geld. 17. The court of chancery will not, however, in cases of this kind, give any satisfaction to the remainderman for timber actually cut down. Rolt v. Somerville, 2 Ab. Eq. 759. The court of chancery will not permit a tenant for life, without impeachment of waste, to commit double waste. Lord Archer being tenant for life, without impeachment of waste, of an estate which was decreed to be sold, and the money invested in the purchase of another estate, to be settled to the same uses, cut down timber. Lord Thurlow held that Lord Archer's personal representatives were bound to account for the timber cut; for as Lord A. was to be tenant for life without impeachment of waste of the estate to be purchased, if he might commit waste upon the other estate before it was sold, he would have the benefit of double waste. Plymouth v. Archer, 1 Bro. C. C. 159; Burges v. Lamb, 16 Ves. 174. Thus it The privileges given to a tenant for life by the words without impeachment of waste, are annexed to the privity of estate, and determine with it. is said that if a lease be made to one for the term of another's life, without impeachment of waste, the remainder to him for his own life, he becomes punishable for waste; for the first estate is gone and drowned. 11 Rep. 83, b. Some cases have arisen where estates for life have been given, with partial powers of committing waste; and the court of chancery has interposed to restrain the tenants from executing such powers. Lands were devised to a person for life, with powers to cut down such trees as four persons named in the will should allow of, or direct by writing. All these persons being dead, it was decreed that power of cutting down timber remained; but the court would preserve the check. It was referred to the master to see what trees were fit to be cut down. Hewit v. Hewit, Amb. 508, 2 Eden's R. 332. directed to inquire into the amount of the damage, and a Persons for master was directed to see it done at the expense of the de- whom injunc fendant.(a) tion granted. The ground, however, upon which this doctrine was as yet founded, was said to be the destruction to the inheritance; and upon this principle, and in extension of this rational doctrine, Lord Hardwicke said that if tenant for life, without impeachment of waste, were to pull down farm-houses, he would restrain *him as much as if it were the case of the mansion-house, or if he were grubbing up the whole of a wood.(b) and against [*218] young a Analogous to this also, was the interference of a court of Timber of too equity to restrain tenant for life, without impeachment, from growth. cutting down timber of too young a growth. Lord Hardwicke, indeed, once expressed some disapprobation of the doctrine, as being difficult to carry into effect; and seemed to think that it was hardly warranted upon principle, as it did not tend to the destruction of the thing settled; and in Sir Her bert Puckington's case,(c) where part of the order was to restrain the tenant from cutting trees not of a proper growth, he felt some doubt, and afterwards omitted it. There were, however, at that time, numerous cases, in which the court. had interfered to restrain tenant without impeachment from cutting saplings or extremely young trees.(d) The subject was afterwards much discussed in two cases before Lord Thurlow, (e) where the doctrine was satisfactorily estab lished.[2] (a) Lord Barnard having died before he had perfected the decree, there were directions for an issue at law to charge his assets with the value of the damage. (b) 1 Ves. 265. There is a most extraordinary doctrine attributed to Lord Mansfield, (1 Bl. Rep. 336,) that if the waste be a species of destruction, not within the meaning of the grantor, a remedy would lie at law against tenant for life sans waste. (c) 3 Atk. 216. (d) Lord Castlemain v. Lord Craven, 2 Eq. Ab. 758. 22 Vin Ab. 518. O'Brien v. O'Brien, Amb. 107. (e) Chamberlayne v. Dummer, 1 Bro. C. C. 166. 3 ib. 548. Lady Strathmore v. Bowes, 2 Bro. C. C. 88. [1] Mr. Dummer devised his estate at C. to his wife for life. In a codicil he said, "Whereas, by my will my wife cannot cut any timber, now my will and mind is, that she may, during so long time as she continues my widow, cut timber for her own use and benefit, at seasonable times in the year." Mrs. Dummer began to fell timber; the person in reversion applied for an injunc Persons for and against whom injunc [*219] We have next to consider another branch of this doctrine neither so well founded nor so salutary as the former, viz. tion granted. the restraining the cutting down trees planted for ornament. Trees planted At first, where the act complained of did not amount to defor ornament. struction, the court refused to interfere. Thus in the anonymous cases in Freeman, above referred to, the defendant, though restrained from cutting down trees planted for the shelter of the house, and fruit-trees growing in the garden, was not prevented from cutting down some turrets of trees which grew a land's length from the house under the idea of ornament; and even Lord Hardwicke once declared, that if a son should have it in his power to call his father into a court of equity for any alterations in a walk or an avenue, it would be such a fraud for disputes between father and son, that it had been better for the public that Raby castle had been pulled down, than that the precedent had been made.(a) One of the first cases we find upon this doctrine is that of Charlton v. Charlton, (b) before Lord King, where an injunc tion, granted by the Master of the Rolls, was continued as to trees for ornament or shelter, but dissolved as to straggling trees. In Packington's case, above noticed, Lord Hardwicke, npon its being objected that the trees in question had arisen naturally and by accident, and not from planting, said that whether they grew natural or were planted, if they served as an ornament, it was the same thing. That injunction, however, only comprised trees in lines or avenues, or ridings in the park and the cases already noticed of Leighton v. Leighton and O'Brien v. O'Brien, were to the same effect. [*220] The court has, however, not gone further than to protect what has been planted for ornament, and has repeatedly refused to act upon affidavits, stating that *timber is ornamental.(a) The order in Chamberlayne v. Dummer, it will be seen, is for trees planted or growing for the ornament of the said houses, or (a) Cit. 1 Ves. 521. (b) Cit. 3 Atk. 213. (c) 16 Ves. 185. Lord Mahon v. Lord Stanhope, 3 Mad, Rep. 523. tion. Lord Thurlow utterly rejected the idea that Mrs. Dummer was only to Chamberline v. Dummer, which grow in lines, walks, vistas, &c. the inference being that Persons for trees so planted, are planted for ornament. Lord Eldon has, and against whom injuncon more than one occasion, expressed his disapprobation of tion granted. this doctrine, which it would be wiser to confine than to extend. If it were to be considered as res integra, he once observed, the best course would have been, to have required settlers and testators to say what their own injunctions should be, rather than leave them at liberty to give legal rights, while a court of equity was afterwards to be called upon to determine how the parties having those legal rights might be said to execute them equitably. (a) The principle, his lordship on another occasion, stated to be, that if the grantor or testator has gratified his own taste for ornament, though he has adopted the species the most disgusting to the tenant for life, and the most agreeable to the tenant in tail, and upon the competition between those parties the court should see that the tenant for life was right in point of taste, and the tenant in tail wrong; yet the taste of testator, like his will, binds them, and it is not competent to them to substitute another species of ornament, for that which the testator designed. The question, which is the most fit method for clothing an estate with timber for the purpose of ornament, cannot be safely trusted to the court.(b) The same principle has been lately acted upon *more extensively, and has been made to comprise, not only trees planted for ornament of the house, but also of out houses and grounds: to plantations, vistas, avenues, to the rides about an estate for many miles round, (c) and in a late case it was extended to trees planted for the purpose of excluding objects from the view.(d) The doctrine has further been applied to a common where clumps of trees were planted for the benefit of view, and as (if de facto planted for ornament) the remoteness of contiguity could not alter the principle, it was thought to make no difference that the common was some miles from the house, and land belonging to other persons intervened.(e) The orders on these occasions are (a) 16 Ves. 185, 186. (b) 6 Ves. 119. (c) Jebb v. Jebb, cit. 16 Ves. 110. Johnes v. Johnes, ib. Lord Tamworth v. Lord Ferrers, ib. 419. Williams v. Macnamara, 8 Ves, 70. (d) Day v. Merry, 6 Ves. 375. (e) Marquis of Downshire v. Lady Sandys, 6 Ves. 106. [*221] Persons for and against always drawn up in the terms which were used in Chamberwhom injune- layne v. Dummer, a copy of which, as extracted from the register's book, is inserted below.(a) tion granted. [*222] It is reported to have been determined by Lord *Erskine, that a tenant for life without impeachment cannot cut down trees which he has himself planted for ornament, but that he may thin such trees.(b) If a tempest has produced gaps in a wood planted for ornament, it would not be considered waste to cut a few trees, so as to produce an uniform and consistent appearance.(c)[1] (a) "That an injunction be awarded to restrain the defendant Harriet Dummer, her servants, workmen and agents, from cutting down any timber and other trees growing on the estate in question, which are planted or growing there for the protection or shelter of the several mansion houses belonging to the said estates, or for the ornament of the said houses, or which grow in lines, walks, vistas or other grounds thereunto belonging; and that the injunction do also extend to restrain the said defendant, her servants, workmen or agents, from cutting down any timber or other trees, except at seasonable times, and in a husband-like manner; and also from cutting down saplings or young trees not fit to be cut as and for the purposes of timber, until the hearing of this cause or the further order of the court." Reg. Lib. A. 1781, fol. 452, (b) v. Copley, 1 Mad. Ch. 144. Sed. qu. as the report of the same case, 3 Mad. Rep. 525, does not agree with it. (c) Lord Mahon v. Earl Stanhope, ib. [1] It was anciently held that trees, like the chamber of a house, could not be the subject of a freehold estate. Bro. Abr. Demand, 20. But it has since been settled, that trees reserved from a conveyance for life are not personal estate, but real, and will therefore pass, without being named, with a subsequent grant of the reversion, notwithstanding such grant expressly refers to the reversion of that which was previously leased. Liford's case, 11 Co. 47. But it is said that a grant of trees passes them to the grantee as chattels, and that he may maintain trespass for any injury. If no time is fixed for their removal, the law implies a reasonable time. Stukely v. Butler, Hob. (Am. ed.) 310; 1 Shepl. 122; Sawyer v. Hammatt, 3 ib. 40. It has been held in New Hampshire, that a sale of growing trees, to be taken within a certain time, is within the statute of frauds, and must be in writing, though not necessary by deed. So in Illinois, a constable cannot, under an execution from a justice of the peace, enter upon land and sell fruittrees there standing and growing, they being part and parcel of the land, and not goods and chattels. But in Massachusetts it is held, that sec. 1, c. 74, of the Revised Statutes,-the statute of frauds-does not apply to an agreement for the sale of mulberry trees, growing in a nursery, and raised for sale and transplanting, to be delivered on the ground where they are growing, on payment of the price, as being an interest in or concerning lands, &c. In a later case it is said, whether a sale of growing wood is a sale of real estate, may depend on the terms of sale, whether the wood is to stand any time, to be sustained and nourished by the soil, or whether there was or was meant to be a written memorandum of the contract. And in a still more recent case it was |