1. The action of waste will lie in this State, and the county court has jurisdiction of it.
2. A view is requisite only when the court thinks proper to order it.
3. Waste may be defined to be an unnecessary cutting down and disposing of timber, or destruction thereof, upon woodlands, where there is already sufficient cleared land for the widow to cultivate, and over and above what is necessary to be used for fuel, fences, plantation utensils, and the like; but as it respects juniper swamp and other lands similarly circumstanced, where the making of timber into staves and shingles is the only use to be made of the land, then the widow or devisee shall not be liable to an action for using such timber, according to the ordinary use made of the same in that part of the country.
HAYWOOD, J.
The words of the act of 1777, ch. 2, sec. 61, are, That the county court shall have jurisdiction of all causes whatsoever, at the common law, within their respective counties, where (111) the debt, damages, or cause of action is above £ 20, except certain cases within which the action of waste is not." And even as to these excepted cases, many of them are not under the jurisdiction by subsequent acts. Secondly: It is true, some difficulty may arise in precisely determining what shall be taken to be waste, but that is no argument to prove that an action of waste will not lie. There are many things all men would agree to be waste, though there are others which might divide opinions. Suppose a widow pulls down a valuable building in order to sell the timber, or to erect new buildings with the materials upon another tract of land; would it not be a great defect in the law were she not punishable in an action of waste for this? I would define waste thus: An unnecessary cutting down and disposing of timber, or destruction thereof upon woodlands, where there is already sufficient cleared land for the widow to cultivate, and over and above what is necessary to be used for fuel, fences, plantation, utensils, and the like; but if it respects juniper swamp, and other lands similarly circumstanced, where the timber made into staves and shingles is the only use to be made of the lands, then the devisee or widow shall not be liable to waste for using such timber, according to the ordinary use made of the same in that part of the country. As to the third objection, a view at the common law was not only incident to the action, but necessarily to be observed therein. This, however, is altered by 4 and 5 Anne, 616, where the court is directed to order a view in such cases where to them it shall seem necessary.
Judgment for the plaintiff.
NOTE. — See Ward v. Sheppard, post, 283; Parkins v. Coxe, post, 339; Sheppard v. Sheppard, post, 382; Bright v. Wilson, 1 N.C. 251; Carr v. Carr, 20 N.C. 179.
Cited: Shine v. Wilcox, 21 N.C. 632; Dozier v. Gregory, 46 N.C. 104; King v. Miller, 99 N.C. 594; Dorsey v. Moore, 100 N.C. 44; Sherrill v. Connor, 107 N.C. 633; Thomas v. Thomas, 166 N.C. 629.