Carr v. Carr, 20 N.C. 179, 3 Dev. & Bat. 179 (1838)

Dec. 1838 · Supreme Court of North Carolina

20 N.C. 179, 3 Dev. & Bat. 179

HANNAH and SUSANNA CARR, by their Guardian, v. SARAH CARR.

Dec. 1838.

A widow has not the right to make turpentine upon land assigned to her in dower, which in the life-time of her husband had not been used for that purpose. But she may rightfully use,in the ordinary mode of making turpentine, trees that have been boxed or tended for turpentine in his life-time; and she may box new trees as those already boxed become unfit for use, so as not to enlarge the crop beyond the extent which it had when the dower -was assigned. ,

This was-an action of trespass on the case, in the nature of an action of waste, brought by the plaintiffs against the defendant for waste alleged to have been committed by her upon the land assigned to her as dower. Upon the trial at Greene, on the Fall circuit of 1837, before his Honor Judge Dick, it was admitted that the cleared land assigned to the defendant for dower, was sufficient, for her suppoi’t. The alleged waste consisted in boxing and tending turpentine trees, growing on the woodland portion of the dower. The court charged the jury that this was waste, and that the plaintiffs were entitled to i-ecover. A verdict was accordingly rendered for the plaintiffs and the defendant appealed.

H. Bryan, for the defendant.

Devereux, for the plaintiffs.

Gaston, .Judge.

It has been the aim of the courts of this state, in the decision of controversies between the heir and the widow on the subject of waste, to accommodate the principles of the common law to the condition of our country. So far as respects the clearing of new ground for cultivation, and the getting of staves and shingles on wild lands, this object has perhaps been accomplished with sufficient precision. As yet, however, there have been few or no adjudications in relation to the legitimate use by the tenant in dower of lands of another desci’iption, which furnish no inconsiderable part of the products of industry in the eastern section of the state. Turpentine trees ax’e there “ tended” as a regular cx*op, yielding an annual profit, but ultimately destructive of the trees themselves. It is our duty, by analogy to the adjudged cases, to ascei'tain the rights of the tenant in the use of these trees upon land assigned to her in dower. Upon the most mature consideration we are °P™0Ib 1st; That the widow has not the right to make turpentine upon land which in the life-time of her husband, had not been used for that purpose. 2dly, That she may rightfully use, in the ordinary mode of making turpentine, trees that have been boxed or tended for turpentine in his life-time. 3dly, That she may box new trees as those already boxed become unfit for use, so as not to enlarge the crop beyond the extent which it had when the dower was assigned.

As the instruction given on the trial is understood to forbid the widow to box or tend trees for turpentine under any circumstances, the judgment is reversed and a new trial awarded.

Per Curiam. Judgment reversed.