
    ORREN L. DODD and another, against JOHN W. B. WATSON and others.
    
    Where a tenant in common, took tlie fixtures and implements belonging to a mill, which was out of use for the want of repairs, and used them temporarily in a mill of his own, and burnt some useless rotten timber pertaining to the mill-dam, which was in his way, it was Held that he was not guilty of destructive waste.
    To subject a tenant in common, to spoliation, at the instance of another tenant, it must appear that he has used the common property, otherwise than in the usual and legitimede exercise of the rights of enjoyment.
    It is no invasion 'of a privilege to cut timber for the use of a saw-mill owned by two, that one of the owners of the mill, who was also a life owner of the land, cut and used a few hundred dollars worth of timber, having left an abundance for the use of the mill, and all other purposes.
    Cause removed from the Conrt of Equity of Johnston Comity.
    Doctor Josiali 0. Watson devised in the third clause of his will as follows: “I own lands in Johnston county, on the west side of Neuse river, called the Brooks and Lockhart lands, about two thousand acres or more, on which there are fifty slaves or more, belonging to the plantation, and the said slaves and land are in the occupancy, and under the management of my half nephew, Orren Lowry Dodd; thesaid'land and slaves ■k- * * X do hereby devise and bequeath to my half nephew Orren L. Dodd, to have and to hold to him during his life, and at his death, tlie same shall belong in fee simple to his child or children, if he has any alive at his death, * * * hut if the said Orren L. Dodd should die without such issue living at his death, then the whole of the said estate and property shall belong to, and be divided amongst the children of his brother, Doctor Warren Dodd, who are, or may be living at his death without issue. I also devise, in the same manner in every respect as the foregoing, one undivided moiety of my mill on Neuse river, mill-seat and all improvements belonging to the said mill, including mill-race and canal, and water privileges at the place my mill is erected at in Johnston county, and along with the said moiety of the said mill, I devise the privilege of getting timber for the saw-mill in all my lands adjoining, (but I do not devise the lands themselves.”)
    The other moiety of the mill was given to the defendant, J„ W. B. Watson during his life, and to such child or children of his as may he living at his death, and in the event of his death without leaving issue, to he equally divided between George W. Watson, William H. Watson, Henry B. Watson, and Orren L. Dodd, in fee.
    The hill alleges that the plaintiff Orren, is the father of the infant plaintiff, Warren, and that he has no other child; that J. W. B. Watson is still unmarried, and has no child or children; that while the mills above spoken of, were by an arrangement between thorn in the possession of the defendant, he took the machinery of the saw-mill, some of it attached to the free-liold, and carried it to another mill of his own, about one mile and a half distant, and attached some of it to his mill, among which were a circular saw, a tnrning-lathe and tools, and a large grindstone ; that he took from the said mill, also, a millstone, and put it into operation in his own mill; also, that the defendant, J. W. B. Wa.tson, wanionly and deliberately burned and destroyed the frame of a building attached to the mill-dam. The bill further alleges that the defendant had cut and carried to his own mill large quantities of timber, had sawed the same into plank and lumber, and he had sold the same, to the great detriment of his privilege, of cutting timber for the saw-mill on the Neuse river.
    The prayer is for an injunction to stay the farther commission of waste, and that the defendant discover the amount and description of the property wasted, and account for the same.
    The answer of the defendant, J. W. B. Watson, denies that it it is a proper construction of the will of Dr. Watson that the privilege of cutting timber for the Neuse river mill extends to the tract of land on which he got the timber complained of, but says there are other lands nearer to the mill-seat to which the term “adjoining” more properly applies-. He says, further, that even if the privilege extends, as plaintiff contends, to the Gully tract, from which alone he has taken timher, that he has not impaired it by any unreasonable use of his own rights — that his mill is on a small creek which is often dry, and that he cannot, if he desired it, saw very large quantities of plank and lumber, and that what he has taken, would not amount to more than a few hundred dollars in value; and that most of the timber sawed, has been applied to repairing the buildings on the land; that he is advised, as a tenant for life, he has a right to use the timber in question prudently, and in the way he has been using it — that there is no lack of timber on the land adjoining the mill, but that with such a mill as had been heretofore on the premises, there is timber enough thereon to last for a thousand years.
    He further answering says, that the mill on Neuse river went down for the want of repairing, that he urged upon the plaintiff, Orren, frequently, to join him in making the proper repairs, but that he declined doing so — that the millstone and saw were idle at the old mill, and he admits that he did take them, with the turning lathe and tools, to his new establishment, and there used them for a short time, but he says he then replaced them in the exact condition in which he found them. lie insists, that as a joint-owner, he had a right thus to use these things.
    The defendant denies that he wantonly and deliberately burned and committed waste in the frame of a building attached to the mill-dam. He says that in the original construction of the dam, a frame was put in that might serve as the foundation of a superstructure, if the same should ever be needed; that the same was covered over with timber which had become rotten and utterly worthless, and that to get it out of the way, he did set fire to it and destroyed about half of it, but he denies that this was any injury to the mill, or any other property, for that to be of any use, the whole reconstruction of the mill in question, would have to be made with new timber.
    The bill was set for hearing on the bill and answer of the defendant, J. "W. B. Watson, (the other defendants not having answered,) and sent to this Court.
    
      
      Rogers and E. G. Haywood, for the plaintiffs.
    
      Moore and G. W. Haywood, for the defendant.
   Pearson, J.

The bill is filed to stay waste, and for an account. The right to relief is put :on two grounds. The Court is of opinion that it cannot be sustained.

1. In respect to the removal from the mill-, by the defendant, J. W. B. "Watson, of the mill-stone, saw, turning-lathe and grindstone, and the burning of the logs at one end of the same: One half of the mill is devised by the late Ur. Watson to the defendant, J. W. B. Watson, in fee, and the other half to the .plaintiff Orren, for life, with a contingent, remainder to such child or children as he may have living at his death, in fee. The other plaintiff, Warren, is the only child of Orren now living.

The bill assumes that the plaintiff Orren and his child, the other plaintiff, represent one half of the fee simple estate as tenants in common, with the defendant, J. W. B. Watson, and it alleges that he has committed destmetme waste in the particulars above set forth.

Putting out of the plaintiffs’ way the objection in regard to the tenancy in common, and supposing that relation to exist, and treating the articles removed, as fixtures, and a part of the freehold, which we are inclined to think is th^case, as between the executor and the devisee, especially the saW and mill-stone, without which the mill could not be used, w'e do not think the acts of the defendant, under the circumstances, stated in the answer, (all of which are to be taken as true, there being no replication) amount to such destruction as will call into exercise the injunctive power of this Court to restrain a tenant in common from enjoying and using the property in the manner he may see proper to do as owner.

The law applicable to this question, is settled, and is thus stated in 2 Story’s Com., sec. 916•: “Although Courts of Equity will not interfere by injunction to prevent waste in eases of tenants in common, or copartners or joint tenants, because they have a right to enjoy the estate as they please, yet they will interfere in special cases; as where the party committing the waste is insolvent, or where the waste is destructive of the estate, and not within the usual legitimate exercise of the right of enjoyment of the estate.”

If a mill be in running order, and one of the tenants in common is about to use it to grind stone for gold, or saw soapstone slabs, he may be enjoined, because that is not “a usual legitimate” mode of enjoyment. So, if he remove the stones, or saw, or any thing necessary for the use of the mill.

But, in our case, the mill was not in running order; on the contrary, it had been suffered to go down for the want of necessary repairs, and was in such a condition that it could not be used. So, the question is, must all the things which had appertained to the mill lie idle and be suffered to rust, rot, or be broken ? and did the defendant, by removing them to another mill where he could use them, so far violate the rights of the plaintiffs as to entitle them to the interposition of this Court ?

Both questions are evidently with the defendant.

So, in regard to the old logs. The defendant, by burning them did not, under the circumstances, make himself a spoliator, for they were rotten and of no account, and in the event of rebuilding the dam, it would be necessary to burn them or float them down the river, in order to get them out of the way. The charge in the bill, therefore, “ that the defendant wantonly and deliberately bwned and destroyed a building attached to the mill-dam,” is not supported, and the plaintiff has subjected himself to the imputation of giving a false coloring to the act.

2. We are not at liberty, upon the facts of this case, to decide whether the “ Gully tract” is, or is not embraced by the clause of the will, “ along with the said moiety of the mill I devise the privilege of getting timber for the saw-mill on all my lands adjoining ”; for, supposing it to be included, as a tenant in common the defendant had a right to use the timber which he had cut and sawed as a usual and legitimate mode of enjoying the property; but in fact he is not a mere tenant in common; he holds an estate in severalty, subj ect to the incumbrance or privilege possessed by the plaintiffs of getting timber for the saw-mill. There is no allegation that the defendant has not left timber enough for the full enjoyment of this right; indeed, the answer avers, and such is evidently the fact, that there is upon all the land timber enough to support the mill, as it was used in the life-time of the devisor, for “a thous- and years.”

In taking this ground, difficulties accumulate upon the plaintiffs; thej^ are forced te “change front” and put themselves on another clause of the will, by which all of this land is given to the defendant, J. W. B. Watson, for life, remainder to such child or children as he may leave living at his death in fee, remainder, in the event of his leaving no child, to the plaintiff Orren Dodd, George, William, and Henry Watson, in fee. It will be observed that the plaintiff, Warren Dodd, has no interest under this clause. So, in respect to this equity, he is an unnecessary party, and his joinder exposes the bill to the charge of being multifarious. But waiving that, and passing by also the fact that the plaintiff, Orren, has only a contingent remainder, the Court is of opinion that the acts of the defendant, in getting timber for the use of the buildings on the land, and in clearing some of the land and making sale of the plank to the very moderate extent which he has done, do not exceed his rights as a tenant for life, taking into consideration that there are some eight thousand acres of land, three fourths of which are still wood-land, and much of it only fit for timber. The bill must be dismissed; but we do not allow costs, as the defendant, J. W. B. Watson, by taking away the fixtures from the old mill, gave some prefect for the litigation, and the other defendants have not answered.

Per Curiam. Bill dismissed.  