
    E. P. & R. L. Livingston vs. Mott.
    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 person not being a stranger within the meaning of the statute authorising actions by reversioners-
    Error from the Dutchess common pleas. The plaintiffs in error brought an action of trespass in the court below, charging the defendant with cutting down trees, and carrying away the wood and timber standing and being upon certain lands, &c. The defendant pleaded the general issue, and gave notice of justification under a lease of the premises, executed by Henry Beekman, in 1772, to John Alger, for three lives, alleged to be unexpired; and that the acts complained of were done by the license of Rebecca Thomas, to whom the estate of the lessee had come by assignment.
    On the trial of the cause, the lease front Beekman to Alger was admitted in evidence, and acknowledged to be unexpired. The assignment to Rebecca Thomas, and the fact that the plaintiffs were the reversioners in fee, were admitted. The defendant then produced an under lease from Rebecca Thomas- to him, bearing date in 1825, of 12 acres of the demised premises, reserving an annual rent. The plaintiffs proved that previous to the under lease of 1825, the defendant cut and" carried away the wood growing upon four acres, part of the twelve acres subsequently demised to him; and that he also cut and carried away 100 chesnut trees and the wood growing upon other four acres, part of the premises demised by the original lease, and not included in the under lease, and shewed the value of the same. The plaintiffs further proved, that the 12 acre lot is a wood lot, on which there are no improvements or tillable land, and that, stripped of the wood, it is scarcely worth fencing. The defendant proved a sale, by the agent of Rebecca Thomas, to him, of the wood and trees cut and carried away from the land not included in his lease. To this evidence the plaintiffs excepted. The jury, under the direction of the court, found a a verdict for the defendant, on which judgment was rendered.
    
      
      Forbes <£• Maison, for plaintiffs in error.
    The injury done in this case was waste, and a tenant for life cannot justifiably commit waste. (1 Cruise’s Dig. 63, 72 and 130.) The actian of trespass is given to the reversioner for injuries done to the inheritance, (1 R. L. 527,) and may be maintained by him against a stranger, notwithstanding he has not the actual possession. (11 Johns. R. 431.) The remedy against the" the tenant, his heirs or assigns, would be waste. The defendant is not the assignee of the tenant, rent having been reserved. (Woodfall, 243, 267.)
    Had the acts complained of been done by the tenant, it would have béen waste; and what would have been waste by her, is trespass in another. The timber and wood, aftet being severed from the freehold, belong to the owner of the inheritance, who ■ may maintain trespass against any person who carries away and converts the same to his own use. (Eden on Injunct. 151. 1 Cruise’s Dig. 130. 11 Co. Rep. 79.)
    
      II. Swift, for defendant.
    The under lease produced, and the evidence offered, shewed that the acts complained of were done by the permission of Rebecca Thomas, the tenant of the freehold. The defendant is not a stranger within the meaning of the statute giving an action of trespass to the reversioner. Such stranger is one who does an injury to the inheritance during the continuance of the particular estate, without any privity of estate or contract between him and the party claiming the inheritance, and without the consent of the tenant. What was done by the defendant was by the express permission of the tenant: it was therefore her act, and the remedy, if any, was waste.
   By the Court, Marcy, J.

An action of trespass could not be maintained by a remainderman or reversioner for an injury to the estate in remainder or reversion at common law, but it is now given by statute. (1 R. L. 527.) The question presented in this case is, 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, is a stranger within the meaning of the statute, and liable to answer for damages to the reversioner in an action of trespass ? The agreement between Rebecca Thomas and the defendant, by which he became the tenant of a part of the estate hi reversion of which the plaintiffs were seised, is not, technically speaking, an assignment. (1 Strange, 405. Doug. 182.) The defendant 'has not, therefore, the protection of an assignee ; but I do not think he is to be regarded as a stranger. It is contended, on the part of the plaintiffs, that the defendant is a stranger within the meaning of the statute, if there be no privity of contract between him and them. By this rule, every servant or laborer in the employment of a tenant for life or years, would be subject to a prosecution as a trespasser for any act injurious to the estate of the reversioner, although done by the express authority of the tenant. Such . a construction has not, I believe, been given, and I think ought not to be given to the statute. If a person acts by the direction, authority or permission of the tenant in possession, he is not a stranger. It is laid down, that a stranger doing injury to the premises may be prosecuted by either the tenant or the reversioner. (1 Saunders, 312, n. 5. Har. & Butl. Co. Lit. 57, a. n. 2.) It is very certain that the tenant in this case could not sustain the action ; for she gave the defendant authority to do the acts for which he is prosecuted; and it is equally certain that the acts being such as a tenant may not ordinarily do, she is answerable in an action of waste to the plaintiffs, unless she holds without impeachment of waste. Every act that would be a trespass in a stranger, for which a reversioner may have .an action, is not necessarily waste, if done by the tenant. If the servant of the tenant was liable for trespass to the reversioner, he might be called upon in some instances to pay damages for that which the tenant by whose authority he acted, could do with impunity. He must therefore be permitted to avail himself of the defence which the tenant would have if prosecuted for waste. The difficulty which would inevitably result from regarding the tenant’s agent as a stranger, could not be avoided' without confounding, in such cases, the distinction between the action of waste and trespass. The evidence before the court of common pleas proved, in a satisfactory manner, that the defendant had the permission -and authority of the tenant in possession for those acts on account of which he was prosecuted. They were therefore the acts of the tenant, and the court were correct in deciding that he did not stand, in respect to those acts, in the attitude of a stranger to the plaintiffs.

Judgment affirmed.  