
    McGregor against Brown.
    The cutting of trees by a tenant for years, except under special circumstances, is an act of waste.
    In an action by the landlord against the tenant for such waste, evidence of a parol consent by the landlord to the cutting of the trees, on condition that the tenant would clear and seed down the land where the trees were cut, is not admissible; such consent being a mere license, and requiring a writing to give it validity. (2 R. S., 334, § 1.)
    The opinions of witnesses that such act was not injurious to the inheritance, and therefore not waste, are inadmissible.
    A sale of standing trees by parol is a sale of an interest in lands, and void by the statute of frauds. Per Edwards, J.
    Action commenced in the supreme court in 1850, for waste committed by the defendant upon a farm occupied by him as tenant of the plaintiff, in the town of Delhi, Delaware county. The defence set up by the answer was, that the acts complained of were done by the express permission and license of the plaintiff.
    Upon the trial, before Mr. Justice Gray and a jury, in June, 1850, it was proved that the defendant had cut and sold, for his own benefit, a quantity of trees and timber growing upon the premises. Upon the part of the defendant, a witness testified that he had been present at a conversation between the parties, previous to the cutting of the trees; that the defendant at that time asked the plaintiff for two or three acres of wood, saying that he had more hay to winter cattle than he had pasture to pasture them, and that he would seed down the land that he cleared; that the plaintiff said he was welcome to the wood if he would clear it up and seed it down. To this evidence, or any evidence of a parol license to do the acts complained of, the plaintiff objected. The court overruled the objection, holding that although the defendant could not be permitted to show a mere parol license to do the acts, it was nevertheless competent to give in evidence a parol agreement mutually beneficial to the parties, by which the wood was to be cut and the land seeded. To this decision the plaintiff excepted.
    Another witness for the defendant was asked by him the following questions, both of which were duly objected to, the objections overruled, and exceptions taken: “ Is there pasture land upon the place proportionate to the quantity of meadow land?” Answer: “ There is not.” “Do you consider the cutting of the timber a benefit to the inheritance ?” Answer: “ I should consider it a benefit.”
    The defendant had a verdict, which was sustained at general term in the sixth district. The plaintiff appealed to this court.
    
      N. Hill, Jr., for the appellant.
    I. The judge erred in admitting evidence of the alleged agreement or permission to cut and use the trees, and in charging that, if they were cut under the agreement, the plaintiff could not recover. (2 R. S., 428, § 1, 3d ed.) 1. The arrangement sworn to was void as an agreement, and could only operate, if at all, as a license. (1 Denio, 550; 2 Sold., 288, 9.) 2. The statute virtually declares that no license whatever, though executed, shall excuse the tenant, unless in writing. (2 R. 8., 428, § 1, 3d ed.; id., 432, § 1, 3d ed.) 3. The plain object of the statute was to save the landlord from the effect of such testimony as was relied on bv the tenant in this case.
    II. The judge erred in allowing John Aiken to answer the questions put to bim by the defendant; and for this reason alone the judgment should be reversed. 1. The cutting of the trees was clearly waste, as it permanently changed the nature of a part of the thing demised. (Livingston v. Reynolds, 26 Wend., 122; Cole v. Green, 1 Lev., 309; Kidd v. Dennison, 6 Barb., 13, 14.) 2. The object of the ques tions was to show that the tenant, though he had changed the nature of the thing demised, .had not injured but benefited it, an inquiry wholly irrelevant., (Livingston v. Reynolds, supra; Cole v. Green, supra; London v. Greyme,. Cro, Jac., 182; Kidd v. Dennison, supra.) 8. Both-questions, moreover, and especially the second, called for the mere opinion of the witness on this irrelevant topic, which was plainly improper. 4. The testimony having been improperly admitted; it is impossible to tell how far it affected the verdict; nor will the court inquire as to this on a bill of exceptions. [Myers ,v. Malcolm; 6 -Hill, 296 ; Farmers' Bank v. Whinfield, 24 Wend., 426, 7; Northrop v. Wright, 24 Wend:, 221; Cunlijfv. Mayor, fyc-., of Albany, 2 Barb., 190.)
    
      Robert Parker for the respondent.
    I. The first objection was made solely on the ground that . the direction or permission of the landlord should have been in writing.. The justice throughout the suit excluded evidence to show that the several acts complained of as waste were done by the license and consent of the appellant, holding that, under the statute (2 R. S., 258, § 1, 2d- ed.), such evidence was inadmissible. The justice, however, held that, if the acts complained of by the appellant were done by the respondent under the special direction of the appellant, at his-request and, for his benefit, and not under a parol license merely, then such evidence was admissible. This holding was clearly right. The appellant having himself procured the acts to be done, was estopped, from denying the right of the defendant. He could not induce the defendant thus to act, and then (the defendant having acted under his direction) turn round and allege .the acts to be waste. It was not such an interest in land, either, ■ as required a: conveyance or authority in writing. All that is claimed of it is, that it was a sufficient, authority to prevent the appellant from maintaining. waste. (10 Barb., 888.) ...
    
    
      II. The second exception was not well taken. The question for the jury to try was, whether the acts complained of as waste were prejudicial to the interests of the plaintiff. (3 Wend., 341; 11 Mete., 304.) The questions were asked in reference to this point. If not pertinent to that issue, then they were immaterial and could not have prejudiced the plaintiff. (Hayden V. Id aimer, 2 Hill, 205, et seq.; 7 id., 385, S. C.; 2 Comst., 98.) ,
   Edwards, J.

Upon the trial of this action the plaintiff’s counsel objected to the admission of evidence of a parol license to commit the acts of waste complained of. This objection was sustained, but at the same time the court ruled that it was competent for the defendant to give in evidence a parol agreement, mutually beneficial to the parties, by which wood was to be cut and the land seeded; or in other words, for it seems to me that such is its meaning, that, the defendant might prove a contract of sale of the wood to him, founded on the consideration that he would seed down the land that he cleared. To this ruling the plaintiff’s counsel excepted, and I think that the exception was well taken. In the case of Green v. Armstrong (1 Denio, 556), the court, after a thorough examination of the cases, held that a parol contract for the sale of growing trees was void by the statute of frauds, it being a contract for the sale of an interest in land. This decision, as far as I am aware, has been received with approbation, and may be considered as the settled law of this state.

A witness was afterwards introduced who was asked whether there was pasture land upon the place proportionate to the quantity of meadow, and also whether he considered the cutting of the timber a benefit to the inheritance. Both of these questions were objected to and the objection was overruled, and the plaintiff’s counsel excepted.

When the law defines waste to be whatever does a lasting damage to the freehold or inheritance, it does not mean that it is to be left to a jury to determine, according to the opinions - of witnesses, whether the act complained of causes such damage. Certain acts are, in contemplation of law, per se injurious to the freehold# and the only subject of inquiry for the jury is whether such acts have been committed. By the law of England it is considered waste to cut timber. It is also considered waste to convert wood-land into meadow or pasture or arable land. These rules have been modified to some extent in this state, in reference to wild and uncleared lands leased for agricultural purposes. (Jackson v. Brownson, 7 John., 227; Kidd v. Dennison, 6 Barb., 9.) This has been done from the necessity of the case. The premises upon which the waste is alleged to have been committed in this case, as appears by the bill of exceptions, had been cleared and cultivated. They were let as a dairy farm, and there was a covenant against waste. It is not pretended that all the wood cut down was required for fences or repairs of the buildings, or for any other purpose for which it might be legally used by the tenant. Under these circumstances, I think that the clearing of the wood-land was in itself an act of waste; and whether it was so or not is a question of law, to be decided by the court and not by the opinions of witnesses. Neither were the questions objected to admissible in reference to the amount of damages. The exceptions to the ruling of the court, in reference to both of the questions, were well taken, and a new trial should be granted. As none of the other exceptions are insisted upon by the plaintiff I have not considered it necessary to allude to them.

Denio, J.

I am of opinion that two errors were committed on the trial of this cause. First. The farm which the defendant held under a lease from the plaintiff contained about two hundred and thirty or two hundred and forty acres, seventy or eighty acres of which remained in forest and the remainder was cleared. The defendant was proved to have cut down about an acre of the timbered land; and he sold a part of the wood in market. He was permitted to prove, against an objection by the plaintiff, that he applied to the plaintiff for two or three acres of wood, saying that he had more hay to winter cattle than he had pasture to pasture them, and that he would seed down the land that he cleared; that the plaintiff said that the defendant was welcome to the wood if he would clear up and seed down the land on which it stood; and-the jury were charged that if this was an agreement for the mutual benefit of the parties, and the wood was cut in pursuance of it, it was a defence to the action. The action was for waste, and the following statutory provision applies to the case: “If * * * any tenant * * * for term of life or years, * * * shall commit waste * * * of the houses, * * * lands or woods, * * * without a special and lawful license in writing so to do, they shall respectively be subject to an action of waste,” (2 R. S., 334, § 1.) The object of the qualification respecting the evidence of a license is the same with those provisions of the statute of frauds requiring certain transactions to be put in writing, namely, to prevent agreements from being set up by false or mistaken oral testimony. I do not think the annexing a condition to the license (for this is what the evidence at most amounted to) renders the parol proof of it anymore competent than it would otherwise have been. Nothing like an agreement was shown. The defendant did not agree to clear or seed down any of the wood land, but only that he would seed down what he should clear. It was a clear case of a license proved by parol against the express provision of the statute.

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. Many of these cases are referred to in Dewitt v. Barley, decided at the last term. (See 5 Seld., 371.)

The judgment of the court below should be reversed and a new trial granted. °

All the judges concurred.

Ordered accordingly.  