
    Lawrence Van Deusen, and others, v. David Young.
    In an action by the remainderman in fee, for an injury done to the inheritance by cutting timber, it is not necessary for the owner of the intervening estate for life or years to unite as plaintiff.
    In such an action the plaintiffs Cannot recover for any damage the life tenant may have sustained, by the acts of the defendant. A separate ■ action in behalf of the life tenant is the appropriate remedy for any injury which he may have suffered.
    Hence, in an action by the remainderman, testimony to show that the farm would be worth less with the timber cut off than with it on, and how much less, is inadmissible.
    The inquiry in such an action should be confined strictly within the statute giving treble damages, and to the damage done to the inheritance, solely.
    The question whether the farm would be worth more or less with the timber cut off; and, if less, how much less, is also objectionable as calling for a speculative opinion, and not for facts.
    Where a tenant for life entered into a written agreement with the defendant to sell the premises to him, and gave him possession and the right to do what work he should see fit or necessary to do oh the farm; Held, that though the tenant for life had no right to sell, or agree to sell, the land, yet she had the right to assign her term, or to underlet fife any length of time not exceeding her life. That the entry of the defendant, under the agreement to purchase, was therefore not tortious as to her, and he was not<a trespasser, for either entering on or working the farm.
    That although the contract could not operate as a contract of sale, it could and did operate as a license to enter and occupy until such license was revoked.
    That the defendant must be deemed to have been in possession of the .farm as the tenant of the tenant for life, and clothed with her rights in respect to the occupancy and management thereof.
    
      Held, also, 1. That the reversioners were entitled to maintain au action against the defendant for an injury to their reversionary interest, although the tenant for fife was still living.
    2. That the defendant, while in possession, was clothed with the rights of a tenant, and as such had the right to cut timber for the use of the farm, but could not carry it off to be used elsewhere, or sold.
    3. That it was waste in him to cut off the timber which it was necessary to retain for the. use of the farm; and that for this damage, as well as the value of the timber, the plaintiffs were entitled to recover, upon the assumption that they had not assented to the cutting.
    4. That it was not a case in which the reversioners- could recover treble damages under the statute relative to “trespass on lands.” (2 R. S., 338,1‘§1.)
    This is an action brought by the plaintiffs, claiming to be the owners of a certain piece of land, situate in the county of Albany, subject to the life estate of their mother, for damages sustained by them from the defendant cutting down and carrying away trees and timber therefrom. The referee who tried the action reported the following facts, viz : That on the 31st day of October, 1853, the defendant and Mary Van Deusen, as executrix of Lawrence Van Deusen, deceased, entered into a written agreement with each other, signed, sealed, and delivered, by which the latter agreed to sell to the former the Van Deusen farm, in said agreement described, for the sum of $3,000—$2,000 to be paid on the first day of May then next, and $1,000 to be secured on bond and mortgage; Mrs. Van Deusen agreeing, on payment of the $2,000, to give a quit-claim deed, conveying the premises free from all incumbrances, except certain specified rents therein mentioned; that the defendant was to have immediate possession of the lower part of the house on said premises, and also the privilege to do what work he might deem fit or necessary to be done on the farm, provided he obtained -permission of one Adam J. Long—which permission defendant did obtain from him; that the defendant went into possession under and in accordance with this agreement; that the trees in controversy, and which the plaintiffs complain that the defendant cut and carried away, were, at the time this contract was entered into, standing on a low, swampy part of this farm; that the defendant at different times, between the 31st day of October, 1853, and the first day of April then, next, caused to be cut down and removed from the place at which they were cut such a quantity of timber in standing trees as when cut up into cord-wood made eighty-two cords of wood; that while said trees were being cut, Lawrence Van Deusen, one of the plaintiffs, was knowing to that fact, and no evidence was given that he made any objections; that Mrs. Mary Van Deusen was then the owner of a life estate in the said farm, and that on the termination of her said life estate the plaintiffs in this suit will be entitled to an inheritance in fee, in said premises; that the parties to the written agreement of sale before mentioned failed to comply with the terms of the same, and that the same was put an end to on the first of May, 1854; and that the defendant immediatey moved out of the Van Deusen house and off the Van Deusen farm, and has never since been in the possession thereof; that he found the damage which the defendant actually did amounted' to the sum of $150; and, as a conclusion of law, he found the defendant indebted to the plaintiff in the sum of treble that sum, viz., in the sum of $450 besides costs. On this report judgment was entered up in favor of the plaintiff, and the same was affirmed at general term, 
    
    The defendant appealed from the judgment.
    
      
      I), Wright and John K. Porter, for the appellant.
    . I. The referee erred in permitting the witness Wei deman to testify to his opinion that the farm would be worth less by $400, if all the timber was. out off.
    1. The witness liad just sworn that four acres of the six had been cleared, and two acres of the timber was left; and the plaintiffs then asked: “ Would the. farm be worth more or less with the timber cut off?” This was objected to; 1st. As irrelevant; 2d. As calling for a speculative opinion; 3d. As assuming an improper test of damages.
    2. An inquiry as to what would have been the effect on the farm, if the plaintiff had cut off all the timber—which he did not do—was plainly irrelevant.
    3. It was a speculative opinion, and inadmissible as a test of damages..
    4. In an action of waste by a landlord against his tenant for cutting trees on his land, it was-expressly adjudged -by this court, that “ the opinions of witnesses that such act was not injurious to the inheritance, and therefore not waste, are inadmissible.” The grounds of the decision were thus stated by the present chief judge in delivering the opinion: “Again, a witness was permitted to swear that he considered the cutting of the. timber a benefit to the inheritance. This was in violation of the rule so often laid down within the last few years excluding opinions except from professional and scientific witnesses, and upon questions of skill and science.” (McGregor v. Brown, 6 Seld. 114, 119.)
    5. The witness was also permitted to state how much less the farm would be worth; and the objections w.ere not only overruled when made, but when they were renewed and insisted on at the close of the plaintiffs’ evidence, the motion to strike out the evidence was denied.
    II. The referee also erred in permitting the plaintiffs to ask the witness Houck his “ opinion in reference to the extent of the injury in consequence of the cutting down and carrying off of the timber;” and in refusing to strike out the answer : “I should think it would be about $400dam-age to the farm,” as well as the speculative reasons he assigned for the opinion.
    1. Thus, in an action against a bailee of cattle for feeding them upon bad hay: “A witness, who knew the cattle and the hay upon which they had been fed, was permitted to state Ms opinion as to the amount of damage. Held, that the evidence was improperly received.” (Morehouse v. Matthews, 2 Comst. 514.)
    2. So in an action between landlord and tenant: “ The opinions of witnesses as to the amount of damages a party has sustained by the deprivation or withdrawal of water from a tavern,” are inadmissible as evidence. (Harger v. Edmonds, 4 Barb. 256.)
    3. “ On ascertaining the .injury caused by an alleged nuisance, a witness cannot be allowed to give his opinion as to !he amount of damages.” (Fish v. Dodge, 4 Denio, 312; Bronson, Ch. J.)
    4. In an action by the lessee of a mill against his lessor for breach of covenant in depriving him of the water by which the mill was run, similar evidence was offered and received; and the judgment was reversed on that sole ground. The court said : ‘‘ No case was cited by the counsel for the plaintiff where evidence of opinion as to the amount of damages sustained, has ever been sánctioned as legal. The amount of indemnity, where it is not capable of being reached by computation, is always a question for the jury. If there be any rule without exception, it is this; and I have been unable to find any instance where the opinion of witnesses has been received. Bacon and Symonds, who were sworn in this case, might have possessed some knowledge in respect to the case peculiar to themselves. Every witness is supposed to have such knowledge; but he does not therefore become an expert, and entitled to speak on the general point of damages. If one may speak, another may. It is no reason for receiving such evidence, that the defendant may cross-examine.” (Norman v. Wells, 17 Wendell, 137, 141, 163. Cited and approved, 2 Comst. 516-7; Duff v. Lyon, 1 E. D. Smith’s R. 536.)
    III. The referee erred in permitting the witness Hildobrandt, who “ never was on the lot” to his knowledge, to testify his opinion, that clearing four acres of this swale “ was some $300 or $400 detriment to the place;” and in refusing the motion to strike out his answer on that subject. (Authorities cited under last point.) •
    IV. He erred in admitting the opinions of other witnesses, that the farm, was worth from $300 to $500 less, “ by reasson of the cutting down and drawing of this timber;” and in refusing to strike out such evidence.
    1. All this testimony was objected to on each of several specific grounds.
    2. It was all irrelevant to the true inquiry as to the value of the timber and the injury, if any, to the swale from which it was cut; and it assumed that the residue of the farm was depreciated by this clearing. (Albany Northern R. R. Co. v. Lansing, 16 Barb. 68; 36 Barb. 647; 26 Wend. 129.)
    3. It all rested on speculative opinions, as to remote and uncertain consequential injury. (6 Seld. 119, McGregor v. Brown.) (Authorities cited in point second.)
    V. The referee also erred in permitting the plaintiffs’ witnesses to testify to their opinions as to the disadvantage to a farmer, surrounded by woodland, of buying wood with the produce of cleared land—rather than cutting it from uncleared land—and other kindred considerations assigned as reasons for their estimates. . ■
    VI. The referee erred in permitting witnesses to testify to their opinions as to the extent of injury, and the supposed depreciation- of the property, who were not proved to be competent for that purpose; and in refusing to strike out the evidence of their opinions, when they were proved afiirmatively to be incompetent,
    
    
      1. Thus, Peter L. Houck, a merchant, who swore that he never bought, sold, hired, or owned a farm, and did not know the number of acres in this farm, was allowed to give his opinion that the cutting of this timber would depreciate the farm between |400 and $500, and to give other opinions as reasons for this; and the referee, at the close of his evidence, refused to strike out this evidence.
    2. The opinions of a cooper to the same effect were, admitted; and the referee refused to strike them out, though it appeared that he never hired or owned a farm, and that he did not know in respect to these premises even the facts which would have been necessary to enable a farmer to form a judgment.'
    3. A farmer, who swore that he never was on the lot to his knowledge, and that he could not express an opinion as to the present value of the farm, was permitted to give an opinion that cutting off the timber “ was some $300 or $400 detriment to the place;” and the referee refused to strike out the proof. (Westlake v. St. Lawrence Insurance Company, 14 Barb. 206, 212.)
    4. Even on questions of simple value the witness, to be competent,' must be shown to have peculiar means of knowledge to entitle him to give his opinion in evidence. (Lamoure v. Caryl, 4 Denio, 370; Norman v. Wells, 17 Wend. 163; Clark v. Baird, 5 Seld. 183.)
    VH. The plaintiffs cannot maintain their claim that the errors should be disregarded, on the theory that the referee might by possibility have arrived at the same result, if he had weighed in the balance only the competent evidence,
    1. The record shows not only that he deemed the evidence competent when it was offered, but that he so held on full consideration, when the motion to strike it out was denied at the close of the plaintiffs’ case; and, as it was his duty to give weight and effect to all the competent evidence, he is presumed to have done so in his finding.
    2, Where the judge or the referee, who admits or rejects the evidence, is also to pass upon the question of fact, it is matter of legal presumption that- he will give it effect according to his ruling. (Costigan v. Cuyler, 21 New York, 134.)
    3. “Where evidence, bearing with directness and forcé upon the question at issue, has been erroneously admitted by a referee, a new trial must be granted, although there may be unobjectionable evidence sufficient to sustain his conclusion.” In the language of Judge Comstock in that case : “The defendant was entitled to the referee’s judgment Upon the competent evidence.” (Williams v. Fitch, 18 New York, 546, 551.)
    4. “There are many cases which hold that an error in the court below, which, on its face, and by legal necessity, could do no injury, is not cause for a reversal of its judgment. But where the error is in the admission of illegal evidence, which bears in the least degree on the question in issue, it cannot be disregarded.” (Worrall v. Parmelee, 1 Comst. 521; Underhill v. Harlem R. R. Co. 21 Barb. 496; Erben v. Lorillard, 19 N. Y. R. 299.)
    5. In this case the timber, after being cut into fencing materials and wood, was left on the premises, and held and claimed by the plaintiffs; and it is obvious therefore that the illegal evidence was not only prejudicial to the defendant, but the very foundation of the report.
    VIII. The motion to dismiss the complaint should have been granted as to all the plaintiffs.
    1. The plaintiffs were remaindermen; the devisee for life was living; and the statute under which they claimed to maintain trespass is a re-enactment of the provision in the Revised Laws, and in these words: “A person seised of an estate in remainder or reversion, may maintain an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or years.” (1 Revised Statutes, 750, sec. 8; id. 527, sec. 33.)
    2, This does not import that trespass maybe brought for an act of waste, or waste for an act of trespass; but' that the remainderman or reversioner may bring the one or the other in appropriate cases, notwithstanding the fact that he was out of possession at the time of the trespass, by reason of an intervening life estate.
    3. “An action of trespass will not lie by a reversioner for an injury to the inheritance, committed by a person who acts under the authority or by the permission of the tenant for life—such a person not being a stranger within the meaning of the statute authorizing actions by reversioners.” (Livingston v. Mott, 2 Wend. 605.)
    4. Nor was the statute designed to give trespass in any case to a party out of possession for acts by a party in possession; and if such an action would ever lie by the plaintiffs against the defendant, it inust be after the life tenancy has ceased, when their possession may, by relation, reach back to intermediate injuries. (Schermerhorn v. Buell, 4 Denio, 424, 5; Bronson, Ch. J.; Frost v. Duncan, 19 Barb. 560, 1; S. B. Strong, J.)
    5. Here trespass is brought by parties out of possession against a party in possession under the life tetiant; and not by her who could alone maintain it, if his act had been wrongful.
    6. Again, the referee denied the motion to dismiss, and sustained the action as trespass under the statute for treble damages, which is in these words : “ Every person who shall cut down or carry off any wood, underwood, trees,' or timber, or shall girdle or otherwise destroy any trees on the land of any other person, without the leave of the owner thereof, * * shall forfeit and pay to the owner of such land f * treble the amount of damages, which shall be assessed therefor in any action of trespass, by a jury, or by a justice of the peace in cases provided by law.” (2 B. S. 338, sec. 1.)
    7. Statutes imposing penalties and forfeitures are to receive a strict construction. (Hasbrook v. Paddock, 1 Barb. 636.)
    
      8. The statutory forfeiture is to the owner of the land, and can be claimed only by those who show ownership. The plaintiffs not only failed to show that they owned the land, but proved affirmatively that there was an outstand-. ivg “ freehold estate” in their mother for life. (1 Eev. Stat. 722, sec. 5.)
    9. Mrs. Yan Deusen not being a party, and the plaintiffs ' having, failed to show ownership in themselves, the complaint should have been dismissed.
    10. This was not a defect of parties; for she had no right of action, and claimed none.
    11. It was a defect in the plaintiffs’ title to the forfeiture—in proof of ownership of the land; without which they could not maintain the action.
    IX. The motion to dismiss the complaint as to the plaintiff, Lawrence Van Deusen, was improperly denied.
    ■1. He lived with the defendant in the house on the place, and what Young did was with his knowledge and acquiescence. .
    2. The referee was of opinion, however, that the subscrib ing witness to the contract, who had asserted'Mrs. Van Den-sen’s authority to sell—who had stood by when she told the defendant he might go on and work the place as he thought proper, and who was himself at work in the-woods while the defendant was cutting, without making an objection, could, nevertheless, on showing an interest of seven-twelfths as remainderman, maintain an action for a statutory forfeiture in cutting without his leave.
    
    X. The entire proceeding was a mis-trial by the referee. 1. He overruled 2 Wendell, 605, in holding that the vendee of the life-tenant in possession was liable in trespass to the remainderman.
    2. He overruled the well-settled doctrine, that a vendee in possession is the equitable owner of the property, and in legal effect a mortgagor, with the right to cut - timber and use the property as his owm, so long as he does not violate his contract or jeopardize the security. ( Van Wyck v. Alliger, 6 Barb. 507; Rood v. N. Y. & Erie R. R. Co., 18 Barb. 80; Moore v. Burrows, 34 Barb. 173.)
    3. He ignored the effect of the ratification by the plaintiffs of the contract of their mother with the defendant. (Carter v. Hamilton, Selden’s Notes, Apl. 1864, No. 6, page 80; Commercial Bank v. Warren, 15 N. Y. 577, 581.)
    . 4. On undisputed proof of tender of performance by the defendant, and of inability and failure to perform on the part of the vendors, he visits the defendant with the penalties of a breach of contract. (Burgett v. Bissell, 14 Barb. 638; Last note; Friess v. Rider, 24 N. Y. 367, 370-1; 38 Barb. 517; 34 id. 311.)
    5. He refused to give effect to the settled doctrines of acquiescence and estoppel, as against the plaintiff Lawrence Van Deusen. (35 Barb. 427; 4 Bosw. 169; 6 Duer, 371.)
    6: He overruled ■ the statute, in holding that the treble damages awarded to the owner of land could be claimed as a forfeiture by parties not owning it. (2 R. S. 338, sec. 1.)
    7. He overruled Mooers v. Allen in holding, that on a general finding on an ordinary and a statutory count he could adjudge treble damages against the defendant. (2 Wend. 247.)
    8. He held, that he could charge the defendant with treble damages without finding the fact, which the statute makes the condition of the forfeiture, that the act was without the leave of the owner.” (2 R. S. 338, sec. 1.)
    9. He held, that he could charge the defendant with this .statutory forfeiture in "favor of a party who knew at the time what the defendant was doing, and did not make an objection.
    
      L. Tremain, for the respondents.
    I. The grounds upon which the motion for a nonsuit was based, were, all untenable. Let us examine them :
    
      1. Possession is not necessary to maintain an action of waste,, or for cutting down timber, where it is brought byreversioners. They are authorized by statute to sue, notwithstanding an intervening estate for life or years. (See 2 E. S. 156, 4th ed; See. 8 id. 594, § 1; Id. 592, §§ 1, 5.)
    2. Title in the testator was shown—
    
      (a.) By his possession and receipt of the profits, which in all cases afford prima facie evidence of seisin. '
    (5.) By the evidence elicited by the defendant’s counsel, on cross-examination, that the testator purchased the farm from Van Wie.
    (c.) The defendant proved on the defence, by the contract, that the defendant entered under the title of the testator, acknowledging it. This would waive any objection on the ground that the plaintiffs’ proof of title was insufficient.
    3. The acts of the defendant were wrongful, for he had no authority to cut down a single tree; much less to destroy the wood lot on the farm.
    4. Stephen inherited his share of Maria’s portion, upon her death, being one-third of one-fourth subject to the life estate of the widow. ( See 2 E. S. 134, 4th ed., § 35, “Expectant Estates;” 2 E. S. 4th ed., p. 156, § 6, “Descent.” )
    5. The plaintiffs were entitled to maintain a joint action for this injury to the freehold. (See 5th Bacon’s Abridgement—Joint Tenants and Tenants in Common, letter K.:) “Tenants in common shall join in actions personal, as trespass in breaking into their house, wasting or defouling their grass, cutting their timber, fishing in their piscary, &c., and shall recover jointly their damages ; because, in those actions, though their estates are several, yet the damages survive to all, and it would be unreasonable to bring several .actions for one single trespass.” (Co. Litt., 198.)
    This action was by those who owned the reversion, for an injury to the inheritance, and the widow, who only owned a life estate, was not a,proper party. But if she was, any defect of parties was waived by not having been set up in the answer. (Code, sec. 144, sub. 4, and sec.. 148.; 3d Kernan, 322.)
    II. The referee properly refused the motion to dismiss the complaint as to Lawrence Van Deusen, on the ground that he consented to the cutting down of the trees and timber.
    1. Such consent is only sought to be inferred by the silence of Lawrence ; no affirmative action on his part being pretended, Lawrence knew that the defendant had contracted to buy the farm, and that if he performed the contract all would be well. He also knew that if he neglected or refused to fulfill, he would be liable for his acts. To have interfered with him, would have evinced distrust m his intention to perform. Any inference of an absolute consent to the trespass is therefore fully rebutted by the circumstances.
    HI. The motion to strike out the evidence of damages uas properly denied.
    1. The count referred to is substantially according to the statute and the forms. (See Yates’ Pleadings.)
    2. It alleges the value of the timber and also that the farm was lessened in value by the acts of the defendant.
    TV. The true rule of damages was treble the injury to the farm: see 2 R. S. 594: the language being, “ damages issessed therefor,” viz.: “cutting down and carrying off trees and lumber.” Suppose the trees had been shade trees iri front of a village or town residence, or fruit trees upon a farm, would the rule of damages be treble the value of the timber of such trees, or would it be treble the injury actually sustained in the depreciation of the value of the farm or place to which the trees belonged ?
    Again: The difference in the value of the farm on account of cutting down and carrying off the trees, was properly proved by the opinions or estimates of persons acquainted with the value of lands in the vicinity of this farm. Value of property and amount of injury to it are always proved by opinions. (See Cowen’s Treatise, 4th ed., sec. 1475; 5th Selden, 183, Clark v. Baird; 2d Comstock, 516, Morehouse v. Mathews; R. & S. Co. v. Budlong, 6 How R. 467; 10 How. E. 298; S. C., 12 N. Y. Leg. Obs. 46; 4 Con. 203; 7 Serg. & Rawle, 90. See also Lewis v. Tricky, 20 Barb. 387; Harper v. Leal, 10 How. P. R. 276; 22 Barb. 652; Joy v. Hopkins, 5 Denio, 84; 22 Barb. 134, 654; 2 Abbott’s Digest, pp. 660, 661.)
    V. The testimony introduced on the defense, strongly strengthened the equities of the plaintiffs’ case. It proved. that the defendant did not intend to perform his contract with the widow, and that he contrived it so artfully, that he'avoided the payment of the $500 liquidated damages,' which equitably and honestly ought to have been paid by him for his non-performance.
    VT. No agreement made with the widow could be available to the defendant, as a justification for cutting down trees on the lands of the heirs.
    1. She had no power to give such authority, and if she had cut down the trees she would, herself, have been liable in waste. (See 2 E. S. 592, Waste, sec. 1.)
    2. Consent in writing is' necessary under the statute. (See 2 E. S. 592, Waste.)
    3. The contract does not assume to confer any such authority, and upon well settled legal principles, it would not have conferred power to cut down timber even though it .had been executed by the owner in fee of the lands. (See 9th J. R. 35, Suffern v. Townsend; Id. 331, Cooper v. Stower.)
    
    VH. On the merits,' the judgment was for much less ■ than the proofs warranted.
    VIH. • If improper evidence was received, and the merits clearly warrant the judgment, the case should not be sent back for a new trial.
    
      “ The report of a referee will be sustained where he improperly admits some testimony, if, on rejecting that, enough remains to sustain his report.” (Kemey v. Richards, 11th Barb. 312.)
    “ The rule adopted by the court, in reviewing the report of a referee is, that a judgment willnotbe reversed, although improper evidence may have been admitted, provided substantial justice has been done.” (Spencer v. S. & W. R..R. Co., 12th Barb. 382; 13th Barb. 118; Buck v. Waterbury, 13th Barb. 116.)
    In 24th Wend. 20, the supreme' court refused to reverse the judgment of the common pleas affirming report of referee where evidence was objected to and improperly admitted, because, “The court had the power to say that, although improperly heard it could do no harm, for there was enough of lawful proof without it.”
    If a case is not tried by a jury, the admission of improper evidence is no ground for reversal, but the court on appeal will decide the. cause as if the evidence were not in the record. (Field v. United States, 9th Peters, 182; 11th Curtis, 327.)
    IX. Whether the referee erred in allowing treble damages, or in any other conclusion of law contained in his report, is not open to review in this court, there being no exception to his report (Code, sec. 268-348); and not even a case containing the facts found or conclusions of law, as required by the settled practice of this court. (Brewer v. Irish, 12 How. P. R. 481; Johnson v. Whitlock, 12 How. P. R. 571; Turner v. Haight, 16 N. Y. R. 465.)
    X. Tested by the strictest rules of evidence, no error was committed by the referee in admitting proof as to damages. . ■
    1. The mode of obtaining the evidence as to the difference in the value of the property, by reason of the defend- . ant’s wrongs, Was precisely in accordance with the rules established in the authorities cited under point IV.
    
      2. In each and every case the experience and capacity of the witness was all that is required by the standard established in these cases.
    3. The objection on the ground-of want of experience was not taken at the trial in several of the cases.
    4. Whether the plaintiffs’ recovery should have been for the diminution in value, after deducting a portion of such diminution, for the reason that the widow was entitled to recover it, is not material, for in either case, the actual deterioration was properly provable, as an element of determination.
    But in truth, the damage to the inheritance was all recoverable by the owners of the reversion.
    XI. There being no exception to the finding as to treble . damages, it is sufficient that the plaintiff made out a case for recovery, either under the first count in waste, or under the second count in trespass.
    
    In reality, however, the acts complained of were not done by the tenant for life, nor even by her authority, the agreement to sell not empowering the committing of waste. (Suffern v. Townsend, 9 J. R. 35; Cooper v. Stower, 9 J. R. 331.)
    The appropriate remedy, therefore, was trespass, by the reversioners against the wrong doers.
    
    
      
       See 29 Barb. 9 S. C.
    
   Davies, J.

It is indisputable, that the defendant was not the tenant of either the owner of the life estate or of those entitled to the inheritance after its termination. This, therefore, was not an action of waste. It is the action of trespass as given by the Bevised Statutes, which declare that a person seised of an estate in remainder or reversion may maintain an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or years. (3 R. S. 5th ed., p. 39, § 8.) This section is identical with that of 1 B. S. p. 527, § 33. The defendant not being a tenant, the. action of waste was inappropriate, and the proper remedy was that of trespass for the injury done to the inheritance. In such an action it was unnecessary for the owner of the intervening estate for life or years to unite. The action of these plaintiffs, which they could not maintain at the common law, but which is given to them by statute only, is to recover the damage for the wrongful injury done to their inheritance by the defendant. (Livingston v. Mott, 2 Wend. 605.) The Revised Statutes also provide that every person who shall cut down or carry off any wood, underwood, trees, or timber, or shall girdle or otherwise despoil any trees on the land of any other person, without the leave of the owner .thereof, shall forfeit and pay to the owner of such land treble the amount of the damages which shall be assessed therefor, in an action of trespass, by a jury or justice of the peace in cases provided by law. (2 R. S. 338, § 1; id. 5th ed. p. 624, §1.) This section is compiled from section 29 of 1 Rev. L. p. 525, and by it the person offending was to pay (treble the value of the wood cut or carried off. Under this statute it was held that the measure of .damages, in cases coming within the act, is treble the value of the timber cut and carried away. (Newcomb v. Butterfield, 8 John. 342.) This rule was altered in the revision of 1830, by which the offender is to forfeit and pay to the owner of the land treble the amount of the damages assessed for the trespass. The revisers say in their notes that this alteration is made to conform the rule to. the decisions of the supreme court. Under the section as it stood in the revised laws, the offender was to pay treble damages for trespasses commmitted without the leave or the permission of the owner of the land. In Livingston v. Mott (2 Wend. 605), the question was whether a person acting by the permission of the tenant in possession, or holding under him, and doing an injury to the estate of the reversioner, was liable to answer in damages to the reversioner in an action of trespass. And it was held that the acts done by .the permission of the tenant for years were to be deemed her acts, and for which the defendant was not liable in an action of trespass brought by the reversioner for an injury to the inheritance. If in the present case it had appeared that the defendant had cut down the trees upon these plaintiffs’ land with the leave and permission of the tenant for life, this action could not have been maintained. No such fact has been found by the referee, and we are therefore to assume that no such leave or permission was given.

A more serious. question is presented in the objection taken to the testimony offered on the part of the plaintiffs, to prove the damage to their inheritance. The injury seems to have been confined to the present damage to the farm, not, as it should have been, to the damage to the inheritance. These plaintiffs could not recover for any damage the life-tenant may have sustained by the acts of the defendant. A separate action on her behalf would be the appropriate remedy for any injury which she may have sustained. The plaintiffs’, counsel asked this question of the witness : “ Would the farm be worth more or less with tho timber cut off ?” This was objected to by the defendant, for these reasons: First, As irrelevant to the issue; second, As calling for a speculative opinion; and third, As assuming an improper test of damages. These objections were overruled, and the witness answered: “ Less, I think.” He was then asked: 11 How much less ?” And this question was objected to on the same grounds, and the objection overruled, and the witness answered: “ I should think about $400 less.” It is apparent from these questions and answers, that the inquiry was made .in reference to the present damage to the farm, including as well the damage to the life-tenant as that to the ¡remaindermen. This was an irrelevant issue, and not the one before the referee for trial. It was the damage to the inheritance; and if such damage i consisted in the cutting down and carrying away of trees ■or timber, then such damages were to be trebled. This penalty being thus imposed, the inquiry should have been confined strictly within the statute, and to the damage solely to the inheritance.

Again, the question was objectionable as calling for a speculative opinion, and not for facts.

McGregor v. Brown (6 Seld. 114) was an action of waste, against a tenant' for years, where the defendant sought to establish the converse of the proposition claimed by the plaintiffs in this action. He then insisted that the cutting of the trees was a benefit to the farm, and this question was put to one of his witnesses: “Do you consider the cutting of the timber a benefit to the inheritance ?” It was admitted with much objection, and the-witness answered: “ I should consider it a benefit.” Edwards, J., in his opinion, thought that the clearing of the woodland was, in itself, an act of waste ; and whether it was so or not, was a question of law to be decided by the court, and not by the opinion of witnesses. Neither were the questions objected to admissible in reference to the amount of damages. Denio, J., in his opinion, observes that a witness was permitted to swear that he considered the cutting of the timber a benefit to the inheritance. This was a violation of the rule, so often laid down within the last few years, excluding opinions except from professional and scientific witnesses, and upon questions of skill and science. (See Dewitt v. Barley, 5 Seld. 371, and cases there cited.) If it was incompetent to prove by witnesses their opinions of the benefit to the inheritance by the cutting of the timber, it is clearly so to prove the damages to the inheritance in the same way. In each case, it is the opinion of the witness which is called for, and it is too well settled that this cannot be done to need further illustration or argument. All the witnesses, on the part of the plaintiff, called to prove the injury done by the defendant, stated that they had formed an opinion as to the difference in the value of this farm in consequence of cutting down and carrying off this timber; and, in their opinion, this difference in value was between $400 and $500. The opinions of the witnesses as to the extent of the damage, it is seen, were not admissible. Even if they were, the inquiry as to the damage was not the legitimate and proper one. It was not the difference between the value of the farm with the timber cut and what it would have been if left standing, but what was the extent of the injury to the plaintiffs’ inheritance. It is obvious that there must be a marked and wide difference between the two. We have no- means of judging of the probable duration of the life estate, but the reasons given by the witnesses for their opinions show that they were based upon their views of the present enjoyment of the estate. They manifestly regarded the plaintiffs as now entitled to that enjoyment, and they estimated their damages upon that hypothesis. In permitting this, it seems to me that the learned referee clearly erred, and the judgment appealed from should be reversed and a new trial ordered.

Mullin, J.

At common law the reversioner could not maintain an action of trespass against a stranger, for an injury done to the reversioner, while a tenant was in possession, because the person in the actual possession only could maintain trespass. (1 Chitty’s PI. 179.)

Waste was the proper remedy for an injury done by the tenant, or an action on the case might be maintained against either the tenant or a stranger, by the reversioner. (1 Chitty’s PI. 142.)

1 Eevised laws, 527, chap. 56 of session laws of ’36 session, ^ 33, changed the common law rule and provides that it shall be lawful for any person or persons seised of an estate in remainder or reversion to maintain an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or years.

It was held under this statute, in Livingston v. Haywood, (11 J. R. 429.) that the action of waste mentioned in the statute was given to the reversioner against the tenant, and the action of trespass against a stranger only; that under it trespass would not lie against the tenant nor waste against a stranger.

In Livingston v. Mott, (2 Wend. 605,) it was held that the under-tenant of the lessee, was not a stranger, so as to subject him to an action of trespass' by the reversioner; that being in under the lessee, he was entitled to the same protection that the lessee would be, if the action had been against him.

Although trespass will not lie against the tenant or his assignee, waste, or an action on the case in the nature of waste, will lie, as we have seen,. against those parties, by the reversioner. (1 Chitty’s Pl. 142; Short vs. Wilson, 13 J. R. 33; 2 Saund. 252, note.)

Under the code it is not very material what form of action will lie against a party on a given state of facts. The material inquiry is, will any lie? If an action will lie, the plaintiff may have relief adapted to the case made by his proof.

We now come to the inquiry: What relation did the defendant hold to Mrs. Van Dusen and the plaintiffs? Was he in as tenant! or was he a stranger merely, and liable as such? The widow was tenant for life, and as such had the right of occupancy. She had no right to sell or agree to sell the farm; 1st. because she did not own it; and 2d, she had no authority from those owning the farm to convey or agree to convey their interest in the farm. She had a right to assign her term, or to under-let for any length of time not exceeding her life. When, therefore, she agreed with the defendant to sell the premises and give him possession and the right to do what work he should see fit or necessary to do on the farm, provided he could get rid of Long who was in as tenant of Mrs. Y. D., the entry and occupancy was not .tortious as to her, and he was not a trespasser for, either entering on or working said farm.

Although the contract could not operate' as a contract of sale, it could and did operate as a license to enter- and occupy until such, license was revoked, and there was no revocation until all the acts complained of were done. The defendant must be deemed, it seems to me, to have been in possession of the farm as the tenant of .Mrs. Van D., and clothed with her rights in regard to thé occupancy and management thereof. In examining the acts done by the defendant, therefore, the true test of liability will be, would Mrs. Y. D. have been liable if they had been done by her? If so, then he is liable; otherwise not.

A tenant for life of farming land is entitled to cut down and use so much of the standing timber on the farm as may be necessary for fuel, for making and repairing fences and buildings; and if the land is wild and uncultivated, he may cut down so much of the timber as may be proper for the purposes of cultivation; but he may not remove it so as to materially lessen the value of the inheritance. (4 Kent’s Com. 76; Jackson v. Brownson, 7 J. R. 227.)

When the defendant went into possession of the farm in question, there was not standing timber enough upon it for the use of the farm. • He cut down one-half of what remained for the purpose, it is said, of clearing up and cultivating the low swamp land on which it grew. And it is insisted that good husbandry demanded these -things to be done. If the timber was necessary to the use of the farm, he had no right to remove it, because Mrs. V. D. had no such right. And the question, I apprehend, is not one to be submitted to a jury, whether, when a tenant • cuts and carries away standing timber required for the use of the farm, it is or is not good husbandry, or whether it (the farm) is worth more or less by reason of it. The law forbids the act to be done, and the reversioner has the right to damages if it is done.

' The reversioner may, however, waive this right, and consent to the cutting down and removal of the timber. It was for the referee in this case to find whether in view of the circumstances under which the defendant entered; the knowledge by the plaintiffs of the mode in which he entered; their knowledge of his cutting the timber, and then omitting to object to it, and their anxiety to have the defendant perform his agreement with them, whether they did not consent to the acts of the defendant, for the doing of which this action is brought. He has not found directly on this point; nor was he requested to find upon it; and perhaps we are compelled to hold that his findings in this case cover and include the point in question—particularly if it is to be deemed necessary to sustain his judgment. But if they did consent to the cutting down of the timber, they did not therefore abandon their claim to the timber itself. It might well be they would assent to the defendant exercising his judgment in regard to the way in which he' would manage the farm in view of his being in as purchaser, provided he should ultimately perfect his purchase, and in that event the timber cut would become the property of the defendant. But if he should fail to perfect his title, the value of the timber cut would belong to the plaintiffs. In such case the cutting of the timber- would not be tortious, and the plaintiffs’ claim against the defendant would be limited to the value of the timber cut. Perhaps even that would depend somewhat on whether he or the other party to the contract was responsible for the breach of it. Had the plaintiffs contracted to sell and convey the land, and permitted the defendant to enter and cut timber necessary to the use of the farm, I apprehend they could not recover for either the cutting or the value of the timber, if they had themselves broken the contract;, and if broken by the defendant, he would have been liable for the value of the timber as an item of damages for his breach of the agreement. (Schermerhorn v. Buell, 4 Denio, 422.)

The plaintiffs were not contractors, and hence though they may have lost their right to recover for damages done to the reversion by cutting the timber, yet they are doubtless entitled to recover its value.

If the defendant is deemed to have been in as purchaser under the contract with Mrs. V. D. and to be entitled to the rights incident to that relation, he would then be-vested with the right of tenant in possession. (Mooers v. Wait, 3 Wend. 104; Van Wyck v. Alliger, 6 Barb. 507; Rood v. N. Y. & Erie R. R. Co. 18 id. 80.)

I cannot concur with the learned judge who delivered the opinion in the court below that the doctrine of the last two cases ought not to be sanctioned. It may not be stated as guardedly, perhaps, as it ought, but, properly qualified, it is not only to be approved but the country cannot get on without it. As I understand the doctrine i® is this: The vendee under a contract of purchase which does not give the right of possession, has no right of posses sion and is a trespasser if he enters. (Erwin v. Olmstead, 7 Cow. 229; Ives v. Ives, 13 J. R. 235; Suffern v. Townsend, 9 J. R. 35; Cooper v. Stower, Id. 331.)

Nor does a contract to purchase which gives a right to enter authorize the purchaser to commit waste, unless tho land is wild and uncultivated; then the purchaser may cleai up so much of it as good husbandry may require. (Suffern v. Townsend, 9 J. R. 35; Cooper v. Stower, Id. 331; Mooers v. Wait, 3 Wend. 104; 1 Cow. cited, supra.)

A vendee of farming lands who is permitted by the cor-tract to enter and cultivate the farm is a tenant, and as such permitted to 'cut sufficient wood for fire—for making and repairing of fences and buildings, (3 Wend. 104;) bul he may not commit waste. So a vendee of wild land, may not cut valuable timber the cutting of which lessens the security of the vendor.

Now these rules applied, I can discover no way in which they can prejudice the vendor. To hold that a vendee of wild land may not cut timber unless express license is given, is to expose the vendor to the risk of endangering his security by the necessity he will be under in each case of defining the right intended to be granted, or on the other hand the vendee may lose the benefit of his purchase by the restrictions which the vendor finds it necessary to impose upon him. ‘ The law now regulates and defines the rights of both as fully and as perfectly as the nature of the case admits of, and I think it would be alike unwise and unjust to disturb the adjudications by which the rights of vendors and purchasers’ are now regulated.

If the foregoing propositions are correct the following conclusions would seem to be legitimately drawn from them:

1. That the plaintiffs, as reversioners, are entitled to maintain an action against the defendant for an injury to their reversionary interest, though their mother, the tenant for life be living.

2. That the defendant while in possession was clothed with the rights of a tenant, and as such had the right to cut timber for the use of the farm, but could not carry it off to be used elsewhere, or sold.

3. That it was waste in him to cut off the timber which ít was necessary to retain for the use of the farm; and for this damage, as well as the value of the timber, the plaintiff is entitled to recover. This proposition as to the right to recover for clearing the land rests on the presumed findings of fact that such clearing was not assented to by the plaintiffs. The assent of Lawrence Van Deusen alone would not affect the rights of the other plaintiffs.

The next question in the case is whether the plaintiffs were entitled to recover treble damages?

1. I cannot agree with the court below that the statute under which treble damages are claimed in this case was ever intended to embrace a case like the one now before the court. In none of the reported cases that I have found has it ever been claimed that in actions against a tenant or other person in possession of land, who had by reason of his possession an interest in the growing timber, the owner was entitled to treble damage. Among the multitude of actions of trespass between landlords and tenants for destroying timber, one case at least should be found in which treble damages weré allowed ór 'claimed. If there is one such I have not found it. Again; the object of the legislature was to protect timbered land against willful trespassers and. not to embrace a case of a tenant, against whom it would be necessary to bring an action to determine whether or not he had not the right to cut the timber. When the trespass was casual or involuntary,' o'r the defendant had probable cause to believe the land on which the trespass was committed was his own, only slight damages could be recovered. This exception demonstrates to me that it was not intended that the provision in question should apply to persons occupying as the defendant in this case did. •

2. The plaintiff is not entitled to recover treble damages, because his complaint is not limited to a claim for damages under the statute giving treble damages, but embraces, another and distinct cause of action.

In Mooers v. Allen (2 Wend. 247), the plaintiff claimed for treble damages and costs under a statute substantially the same as the one under which the plaintiff in this case claims to recover; and it appearing that there were four counts in the declaration, only one of which was on the statute, the plaintiff was held entitled to single damages and costs only—the verdict being general on all the counts.

In Benton v. Dale (1 Cowen, 160), the declaration contained two counts; one under the statute giving treble damages, and a general count. The plaintiff had a verdict and recovered for treble damages. The court says: “It is ’a sufficient answer to the application for treble damages that the verdict is general on both counts. To entitle the plaintiff to have the damages and. costs trebled, it should-have been on the first count only,which was upon the statute."

The same reasons which induced the court to restrict the right to treble damages to cases in which the action was solely on the statute, apply with equal force to actions under the Revised Statutes.

3. But if the plaintiffs should be de,emed entitled to treble . damages, they must be treble the damages for the taking and carrying away the timber, and not treble the damages which may be given for injury to the land, or to the reversionary interest beyond the mere value of the timber.

I have already attempted to show that a reversioner could not maintain trespass against a tenant, for waste, because trespass could only be maintained by one in possession. But it has been held that a landlord may maintain trespass against the tenant for carrying away timber after it has- been cut, when the removal may be treated as a distinct trespass from the cutting.. (Schermerhorn v. Buell, 4 Den. 422.) If the reversioner can be considered as entitled to the same rights in this respect as the lessor, then he might recover treble the value of the timber carried off; the word damages, in the Revised Statutes, being equivalent to the words “ value of the wood,” &c., in the provision in the Revised Laws, 524, § 22. (King v. Havens, 25 Wend. 420, 422.) It would follow that the plaintiff could not treble the damages, if any were allowed, for lessening the value of the land by reason of removing wood necessary for its use. The statute does not apply to such damages. In this case the largest portion of the evidence was given to show just this species of damages, and it cannot be said that such damages did not enter into the judgment. If these damages did form a part of the judgment, as I have no doubt they did, then they have been trebled erroneously, and for this reason the judgment should be reversed. As we do not know how much was allowed for the wood, it is imposible to ascertain how much should be deducted, and a new trial is therefore necessary to a proper adjustment of the damages. I have not stopped to enquire whether the plaintiffs could unite in this action, or whether they are embarassed by the- change in the practice which abolishes the action of trespass as well as other forms of action;—because I think there is no good reason for doubt as to either proposition. 1 have preferred to examine the case on its merits, and to ascertain the principles which should govern the case and which will enable the referee or the court to make a satisfactory and final disposition of the case on another trial.

The referee erred in permitting the question to be put to the witness: What was, in his opinion, the difference in value of the farm by the removal of the timber? This question was objected to by the defendant’s counsel: 1st. As irrelevant; 2d. Because the witness was not shown competent to give an opinion on the question of damages; 3d. Opinion'merely speculative; 4th. As assuming an improper test of damages.

The amount of damages which the plaintiffs were entitled to recover, if entitled to recover any, was the amount the farm was depreciated in value by reason of the injury complained of. It was the province of the jury to ascertain the amount; it was the province of the witnesses to furnish the data from which the amount was to be ascertained. When, therefore, the witness was called on to give his opinion as to how much the farm was depreciated in value, he was required to give his opinion as to the amount oí damages the plaintiffs had sustained. This is not admissible. (Morehead v. Matthews, 2 Comst. 514; Harger v. Edmonds, 4 Barb. 256; Fish v. Dodge, 4 Den. 312; Norman v. Wells, 17 Wend. 137.)

It was unquestionably competent for the witness- to give his opinion as to the value of the farm with the timber on, and its value after it was taken off. The difference between the two may be the damages. In cases where the damages are arrived at by merely subtracting one sum from another, it may seem to Tbe refining over much to refuse the witness the right to malee the subtraction himself and declare the result; for this is what he is called on to do when asked to give his opinion as to the amount of damages. In an action for breach of warranty of the quality of property sold, the measure of damages is the difference in value between the property as warranted and as it was in fact. In this case, the witnesses are required to give their estimate of the value of the property as it is, and what it would be if it was as warranted. And they may be asked the amount of damages sustained by reason of the breach. (Joy v. Hopkins, 5 Den. 84.) Although the witnesses in these cases give their opinions as to value, yet it is these opinions which the law permits the jury to receive as the data from which to arrive at the damages. It would be violating a wholesome and necessary rule of law to permit witnesses to assume the province of the jury in arriving at the measure of damages; and that principle is neverthe- • less violated because in a given case it may be less mischievous than in some others.

There are cases in which it is- necessary to put to the witness- the very question how much damages the plaintiff has sustained by reason of the act or neglect of the defendant. These are cases in which no data can be given which could enable a jury to arrive at a measure of damages, because the amount of the damages is known and can be properly appreciated and measured only by persons of skill in the business or matter to which the damage in the case x-elates. For a full and accurate examination of the cases on the question, see Clark v. Baird (5 Seld. 183).

I am of opinion, therefore, that the question put to the witness was, incompetent, and that the evidence ought not to have been received. On this ground also, I think the judgment should be reversed.

All the judges concurred in reversing the judgment, on the ground that incompetent evidence had been received; and that the plaintiffs were not entitled to treble damages.

Selden and Hogeboom, JJ., took no part in the decision.

Judgment reversed.  