
    WILLIAM E. HARRIS and wife vs. JOHN GOSLIN.
    In an action on the case against a lessee for years for cutting timber, with a count in trover, the plaintiff may recover the value of the timber, though increased by the wrong-doer’s labor.
    Tenant for years is entitled to necessary fire-wood and timber for repairing houses, fences, &e., if there be no stipulation to the contrary.
    Case by reversioner against tenant for years, for damage done to the estate. The action was against the assignee of a lessee of a farm and mill-seat, for cutting wood, saw-logs, &c. The lease contained a covenant by the tenant to keep up all the repairs of the mill. Plaintiff proved the cutting some saw-logs and oak and pine wood, and its delivery by defendant to market, several miles distant. The wood was worth $2 50 per cord at market and $1 75 on the farm.
    The defence was that the saw-logs were cut for the necessary repairs of the property; and in respect to the wood, that so much of I it as was not used for fire-wood on the premises should be accounted for according to its value on the premises, and not at market.
    A witness was asked if a part of the timber was not used to re- j pair the house, and for fire-wood. This was objected to.
    
      Bayard and Cullen. — Defendant is in under a lease requiring I him to keep up the repairs. What does this mean? That he should I furnish the materials, otherwise he would have stipulated that the I landlord should furnish the materials. The plain meaning is, that he| who was bound to do the repairs must furnish the materials.
    
      Ridgaly and Houston. — This stipulation is only for repairs to thel mill. We agree, however, that defendant as tenant, was bound byl the general duty of a tenant to keep the farm house in order; and itl is equally his privilege to take reasonable fire-wood and timber fori such,necessary repairs. If he did not keep the property from going| to decay, he would be liable to an action for neglecting to repair.
    
      Court. — So far as the parties have themselves stipulated in the lease for repairs, we must look to their express contract. There id such a stipulation in regard to the mill, and the tenant in this easel would be bound not only to do repairs on the mill, but to find the materials. In every renting of a farm it is necessarily implied (i| nothing be said on the subject,) that the tenant shall have necessary fire-wood and timber for keeping fences up, and the buildings in ten! antable repair. He could not cultivate and secure his crops, or peri haps dwell in the house without such privilege; and it is as much fo| the benefit of the landlord or reversioner, that he should be compelled to do these repairs and have these privileges, as for the tenant.
    The case was submitted to the jury on the charge of the court, as to the rule of damages; the plaintiff contending that the value of the wood at the landing and not on the farm was the rule for assessing damages, on the principle that if a tort-feasor mixes his own labor with the trespass or injury, the thing taken shall be accounted for, without reference to the labor bestowed upon it. As in the case of Tilghman & Roberts, New Castle county, which was trespass for cutting timber, and the proof was that the timber was mauled into rails; the court directed the jury to give the value of the rails. The taking being tortious the party injured might have replevied the wood at any' time whilst it remained in the hands of the wrong-doer.
    
      J. A. Bayard and Cullen, for plaintiffs.
    
      Ridgely and Houston, for defendant.
   By the Court.

Booth, Chief Justice.

This is an action on the case in the nature I of waste, for injury to the reversion, luith a count in trover. The plaintiff contends that he has a right to the timber in every shape, and ¡wherever it is found in the wrong-doer’s hands, and having a fight ¡to the timber there he is entitled to its value there. The rule on the ¡subject of damages is generally the value of the property tajken, but ¡the jury may go beyond it. (2 Wh. Selw. 1417; Sound. Pl. & Ev. 1887.) Interest from the conversion may be added. (4 Watts. 418.) [Where the chattel is not of a fixed or determinate value, its worth [at the time of the conversion is not the rule of damages, but they may [be enhanced according to the increased value of the chattel subsquent to that time. (West vs. Wentworth et al.; 3 Cowen 82.) Where one [takes trees and saws them into boards, trover lies; and the measure of lamages is the value of the boards. (Baker vs. Wheeler et al., 8 Wend. 505.) In the present case the damage to the r-eversion, if any, consists in cutting timber into saw logs and cord wood; and the value )f the cord wood at the .landing where it was delivered by the defendant, is greater than on the premises. The plaintiff has added to Ihis declaration in case a count in trover under which it is the opinion pf the court he is entitled to recover the value of this wood, at any [ime whilst it remained in defendant’s hands, though that value may lave been appreciated by his skill and labor.

Verdict for plaintiffs.  