#### David Padelford *versus*Elizabeth Padelford.

Whether the statute of limitations can be pleaded to a *writ of waste, queere.*i By *St,*1783, *c,*40, § 3, a tenant in dower committing waste, forfeits the place wasted and only *single*damages.

To cut oak trees for fire-wood, is not waste.

It is not waste in a tenant in dower to cut timber on one parcel of land to make repairs on another, notwithstanding the reversion of the two parcels may be in different persons.

it is waste to cut timber trees and sell them in exchange for fire-wood.

Waste by cutting two trees in a woodlot was held not to operate a forfeiture of the whole land.

The plaintiff prevailing in an action of waste is entitled to full costs, notwithstand ing he recovers less than twenty dollars damages. ^

This was an action of *waste*against a *tenant in dower*Referees had been appointed to view the place supposed to have been wasted, with the powers of a jury, and if waste had been committed, to assess the damages ; and to present for the consideration of the Court any questions of law which might arise ; and the case came before the Court upon their report.

In regard to the statute of limitations, which had been pleaded, the referees reported that they were of opinion, that although the action of waste is a mixed action, being for damages as well as forfeiture of the land, it is not included in and barred by any statute of limitations of this Commonwealth.

The woodland described in the declaration was disconnected from the homestead farm of the defendant’s husband, (on which she has lived since his decease,) and distant from it about two miles. The husband cut wood on this land and used it for fire-wood ; and the defendant had not cut an unnecessary quantity for this purpose. She cut *sparsim*over the whole lot. There were upon the lot several pine trees fit for fire-wood, some of which the referees thought she might have lightfully cut for fire-wood, but oak had been mostly or wholly cut by her.

The reversionary interests in the woodland and in the homestead, were in different individuals. The defendant cut upon the woodland four white-oak timber trees, from which posts were made and used in repairing fences on the homestead. *158She likewise cut two white-oak trees on the woodland, which were sold by her for machine shafts, she receiving in exchange a quantity of fire-wood as great or greater than the trees would have made if used for that purpose.

*157
      *1*Actions of waste are limited to six years by the Revised Stat. *c.*60, § 1.

*158
      *Oct.*22d.

If cutting these six trees and appropriating them as above mentioned constituted waste, the referees assessed the danages at thirteen dollars.

The trees used for posts and for shafts were all cut between seven and ten years before the hearing, except one of the trees used for posts, which was cut in 1826.

*Russell,*for the plaintiff.

The time for bringing an action of waste is not limited by any of our statutes, and such a limitation, being in derogation of the common law, will not be implied.

Cutting oak trees for fuel, instead of the pine trees which were not timber, was waste. Fitzh. N. B. 59, *JVI*and *N,*note *(i)*; Co. Litt. 53 *a,*53 *b*; Com. Dig. *Waste, D*5, and *F*2. The defendant should in the first place have taken the dead and decayed trees, and next, such as were otherwise not fit for timber.

It is waste to take timber from one lot and make repairs with it on another, where the reversionary interests are in different individuals.

The defendant likewise committed waste in cutting the timber which she exchanged for fire-wood. *Conner*v. *Shepherd,*15 Mass. R. 164 ; *Webb*v. *Townsend,*1 Pick. 21 ; *Sargent*v. *Towne,*10 Mass. R. 303.

The plaintiff asks for judgment for the whole lot wasted, and treble damages. Jackson on Real Actions, 340, note ; Com. Dig. *Waste, F2.*

*W. Baylies*and *Cobb,*for the defendant.

Had the action been *case in the nature of waste,*the statute of limitations might have been pleaded, and though no authority hsa been found on this point as to the *action of waste,*yet it comes within the equity of the statute. It is certainly a personal action so far as respects the damages ; it may be a real action in regard to a forfeiture of the land. All the acts complained of were done seven years prior to the hearing before the referees, except the cutting of one tree used for posts. This could not *159be waste, for the widow was not concerned in the quest on to whom might belong the reversion of the two parcels of real estate. If then the statute of limitations applies, the defendant is not liable for any waste.

*Oct 25th*

Pine is timber here, as much as oak, and it is the common practice in this neighbourhood to cut oak for fire-wood.

Cutting and selling the two trees as timber, in exchange for fuel, may be technical waste, but the object of the statute is to prevent injury to the reversion. Had the defendant used the trees themselves for fuel, it would not have been waste. 2 Bl. Com. 281 ; 7 Bac. Abr. 252, *Waste, C*2.

If cutting one or two trees is waste, the places where they grew should be set forth ; the whole lot is not forfeited.

Under our *St.*1783, c. 40, § 3, a tenant in dower is liable for single damages only. [3 Dane’s Abr. 228, § 4, 5.]

Where in a writ of waste tire damages are trifling in amount, by the law of England the land is not forfeited. In the pres ent case the damages must be merely nominal.

*Russell,*in reply,

said it did not appear that the trees were cut six years before the commencement of the action, which was in 1826. The hearing before the referees was in September, 1827.

*Per Curiam.*

In regard to the damages, it is not necessary to recur to the statute of Gloucester, for our own statute provides that a *tenant in dower*committing waste, shall forfeit *“*the part of the estate upon which the waste shall be made, and the damages assessed for waste ; ” that is, the damages actually sustained, not treble damages.1

We are to consider then whether there has been waste, and to what extent. The referees have reported, that the defendant cut oak trees for her necessary fuel. This she had a right to do. Oaks are found here in so great abundance, that they are not more valuable than other trees, and they are in common use for fuel. Neither was it waste to cut the four timber trees used for posts. The only waste which was done, consisted in cutting the other two timber trees and selling them ; and though the defendant took fire-wood in exchange, this is *160no justification ; and she might have procured sufficient fire wood without resorting to that measure.2

But the amount of damages assessed is thirteen dollars, which is made up in part only of the value of these two trees The parties had better therefore fix their value by agreement. There cannot be a forfeiture of the land, for the place wasted is not found. Cutting these two trees cannot operate as a forfeiture of the whole lot, and it is such a peccadillo that we shall not send the case to the referees again to find the place wasted.

*Cobb*suggested that the plaintiff’s costs should be only one quarter part of the damages recovered. *St.*1807, c. 123, § 2. No forfeiture of the land is demanded in the writ.

*Russell*claimed full costs. The plaintiff had a right to commence the action, as he did, in the Common Pleas, since the title to real estate might have come in question. Whether there should be a forfeiture or not, is a question of title. It was not necessary to insert in the writ a claim to the place wasted.

*Per Curiam.*The plaintiff is entitled to full costs.1

See Revised Stat. c. 60, § 15, and *c,*105, § 1.

See *Fuller*v. *Wason,*7 N. Hampsh. R. 341; *Loomis*v. *Wilbur,*5 Mason, 13; *Conner*v. *Shepherd,*15 Mass. R. (Rand’s ed.) 161, note *a; Fay*v. *Brewer,*3 Pick. (2nd ed.) 205, note 2; 1 Hilliard’s Abr. 169, *et seq., tit. Waste*

See *Fay*v. *Brewer,*3 Pick. (2nd ed.) 205, note 2.