Doe D. Rogers v C. Price and W. Price
| Jurisdiction | England & Wales |
| Judgment Date | 30 November 1849 |
| Date | 30 November 1849 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 760
IN THE COURT OF COMMON PLEAS
S. C. 19 L. J. C. P. 121.
doe d. rogers v. C. price and W. price. Nov. 30, 1849. [S. C. 19 L. J. C. P. 121.] A lease was granted of a farm and tenement, and the quarries of paving and tile-stone in and upon the premises, with liberty and power to open and work the quarries, subject to an annual rent for the premises, excepting the quarries, and to the payment of a royalty for the stone obtained. Out of this demise were reserved and excepted " all timber-trees, trees likely to become timber, saplings, and all other wood and underwood, which then were, or which should at any time thereafter be, standing, growing, and being on the premises, and all mines, minerals, &c., which should thereafter be opened and found." And the lease contained a covenant "not to commit any waste, spoil, or destruction, by cutting down, lopping, or topping any timber-trees, or trees likely to become timber, saplings, or any other wood or underwood;" and a power of re-entry, for nonpayment of rent, or if the lessee, &c., should commit any waste, spoil, or destruction by any of the means or ways aforesaid, and should not perform and keep all and singular the covenants, &c., contained in the lease.-The assignee of the term having cut down and grubbed up certain saplings, wood, and underwood, for the necessary purpose of working a quarry on the demised premises : -Held, that the effect of the covenant was, that the tenant should not so cut any of the trees excepted, as that such cutting should amount to an excess of the right which it was intended that he should exercise; and therefore that cutting trees in a manner necessary to a reasonable exercise of the power to get the stone, was no breach of the covenant. This was an action of ejectment, brought by the plaintiff as assignee of the reversion, to recover possession of a farm and premises called Graig Galva, [895] in the county of Glamorgan. The defendants were assignees of an unexpired term of ninety-nine years, granted by one Evan Jones to one Thomas Thomas, by an indenture of lease bearing date the 29th of July, 1835. By that indenture, the lessor demised to the lessee the farm and tenement called Graig Galva, and the quarries of paving and tile-stone in and upon the premises, with liberty and power to open and work the quarries, subject to an annual rent for the premises, excepting the quarries, of 161. a year, and to the payment of 2d. for every yard of paving-stone obtained, and of 3s. for every thousand of tile-stone,-payable on the 2nd of August in every year. Out of this demise, there was, by the deed, a reservation and exception of all timber-trees, trees likely to become timber, saplings, and all other wood and underwood which then were, or which should at any time thereafter be, standing, growing, and being on the premises, and all mines, minerals, and fossils whatsoever, which should thereafter be opened and found. And in the lease was contained a covenant on the part- of the lessee, not to commit any waste, spoil, or destruction, by cutting down, lopping, or topping any timber-trees, or trees likely to become timber, saplings, or any other wood or underwood; and then followed a proviso giving a power of re-entry, if the rent should be in arrear as therein mentioned, or if the lessee should commit any waste, spoil, or destruction, by any of the means or ways aforesaid, and should (a) Beckham v. Drake, ubi supra. 8 C. B.896. DOE V. PRICE ' 761 not perform and keep all and singular the covenants, provisoes, and agreements contained in the lease. The cause was tried before Wightman, J., at the Glamorgan summer assises, 1848. On the part of the lessor of the plaintiff, it was insisted that the defendants had incurred a forfeiture, by cutting down and grubbing up certain saplings, wood, and underwood, contrary to the covenant. [896] It was conceded that the acts complained of had been done for the purpose of working a quarry on the demised premises. And it was submitted, on the part of defendants, that, if this amounted to a breach of covenant, the lease would be insensible, for the demise of the...
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