Lambeth v. Warner, 55 N.C. 165, 2 Jones Eq. 165 (1855)

June 1855 · Supreme Court of North Carolina

55 N.C. 165, 2 Jones Eq. 165

SILAS LAMBETH against BRITTAIN WARNER.

A widow has a right to clear the lands assigned to her for dower, for the purposes of cultivation, where it is necessary for the enjoyment of the estate; provided it is done with a due regard to the proportion of wood and cleared land.

The clearing of sixteen acres in addition to thirty acres already cleared in a tract of 240 acres heavily timbered, is not out of proportion or unreasonable as regards the rights of the remainder-man.

Appkal from an interlocutory order of the Court of Equity of Davidson County, Spring Term, 1855, dissolving the injunction heretofore granted.

Ho counsel for- the plaintiff.

Morehead, -for the defendant.

Mask, C. J.

The plaintiff claims to he seized in fee of a reversion in a tract of land of which the defendant is in possession, having a life interest.

Samuel Lambeth died leaving a widow, to whom was assigned, as her dower in her husband’s estate, the land in question. She intermarried with the defendant. The hill is filed for an injunction to stay waste. The hill charges, that at the time the defendant took possession of the land, there was on it a valuable growth of locust and other trees which he has cut down and sold to the rail-road company for sills. The defendant admits cutting down timber of that description, and its sale to the company, hut avers he cut timber only on the thirty acres of laud which were partially cleared when ho went there, and sixteen acres more'which he designed to clear and which it was necessary to do, to support his family, which consists of his wife and some children, himself and his children. Upon the coming in of the answer, the injunction was dissolved,

In his answer, the defendant states, that when he took possession, there were about thirty acres of cleared land, and that he intended to clear sixteen more ; that he had cut down the timber, not only on that already cleared, but also on that he intended to clear, and that the sixteen additional acres were necessary to iiie support of the family. That the whole quantity assigned to his wife for dower was 240 acres, which was heavily timbered where it was not cleared.

Claiming the land in right of his wife, he has no greater right to its use than she had.. The widow’s dower is assigned to her for the support of herself and family, and she has a right to clear land for cultivation, when it is necessary to the enjoyment of the estate, if done with a due regard to the proportion of wood and cleared land. Shine v. Wilcox, 1 Dev. and Bat: Eq. 631.

The clearing of the sixteen acres in addition to the thirty acres, is not an unreasonable act, as regards the interest of the ,'remainder-man, and the defendant is not exercising his right in an unreasonable mannei’, and is at liberty to clear the’ sixteen acres, and to cut down and dispose of, as he may think .proper, all the timber on it.