Ward v. Sheppard

Full title: WARD AND OTHERS v. SHEPPARD, WIDOW

Court: Superior Court of North Carolina New Bern

Date published: Jul 1, 1803

3 N.C. 283 (N.C. Super. 1803)

Opinion

(July Term, 1803.)

Waste in this country is not to be defined by the rules of the English law in all respects; for cutting timber trees for the purpose of clearing the land is not waste here, which arises from the situation of our country. What shall be deemed waste must, in a considerable degree, be in the discretion of the jury upon evidence; if trees be cut, not to clear the land, but for sale, it is waste.

THIS was an action of waste alleged to be committed in the dower lands of the widow. The plea was, no waste committed.

JOHNSTON, J.

Actions of waste have been rarely brought in this country. I remember but one in my practice; that was against Holderness, formerly of Roanoke. And then it was decided that waste in this country is not to be defined by the rules of the English law in all respects; for cutting timber trees for the purpose of clearing the lands was not waste here, though it was so in England. If lands are leased to a lessor in an uncultivated state, he must of necessity have the power to clear; otherwise, the lease would be of no profit or advantage to him. The same is the case of dower lands. It is proved here, or attempted to be proved, that the cleared lands were not enough for her cultivation, and that the trees were cut down in contemplation of making a clearing. What shall be deemed waste must in a considerable degree be in the discretion of the jury upon evidence. It seems to me the evidence rather proves that the trees were cut down for sale. The jury will (284) consider whether they were cut down for this purpose or not; and if they shall be of opinion that this was the design, then they should find her guilty of the waste. If, on the contrary, the evidence proves that they were cut down with a view to clearing the land, they should find her not guilty.

Verdict for the plaintiff as to 40 acres out of 477. Small damages assessed, and motion to arrest judgment.

NOTE. — See Ballentine v. Payner, ante, 110, and the cases referred to in the note thereto.

Cited: King v. Miller, 99 N.C. 595; Dorsey v. Miller, 100 N.C. 44.