otherwise invaluable, to the injury of the estate in remainder. The bill prayed that the defendants be perpetually enjoined from digging the said new well, or any other well, for obtaining salt water, and from taking any more wood than enough to make five hundred bushels of salt per day, and that they should be compelled to repair the old salt well, and keep it constantly in good condition.

The answer of the defendants alleged that the original well had so fallen in at the death of the testator as to render ineffectual all attempts by them to repair it; that the new well was not an injury to the estate, but an improvement; that the quantity of salt to be made was not limited by the will, and that it was proper for defendant to cut all the wood necessary to the making of the salt; and that the salt-works were the only source from which funds could be obtained to pay the legacies.

TAYLOR, Chancellor, dismissed the bill. From this decree the plaintiff appealed.

Leigh, for the appellant.

Wickham, contra.

COALTER, J. I shall consider the tenants in this case as holding estates for the life of Mrs. Smith, as well because it is so limited by the will, as because perhaps that limitation is not done away, or enlarged to a fee, by a charge in gross upon the land which the tenants might be compelled to pay, at all events, whether they received profits or not, to the amount. But, taking it at present, they are only bound to pay the legacies out of the profits, if so much are received; leaving it as a question hereafter to be decided whether, in default of profits sufficient, they are or are not to be paid, should such question ever arise. I shall proceed to inquire whether the tenants are to be laid under the restraint, as to the use of the water and fuel, prayed for, or any other restraint whatever.

First, as to the use of the water, and digging the new well. If this was a lease for life of the use of the salt well, I can see no reason why digging a new one within a small distance of the old, so as to communicate with the same fountain, should be restrained any more than opening new shafts to pursue the same vein of coal; and the more especially as by such new shafts the whole vein may be exhausted, which it is not pretended could happen as to this fountain of water. I think, therefore, that the new well may lawfully be dug and used, in

the manner, and for the purpose stated in the bill and answer; and that, as any quantity of water might lawfully have been drawn from the old well, so it may from the new, even if the fountain itself should by dried up thereby, but which is believed to be impossible.

Second, as to the use of fuel. There seems to be no doubt that the devise of the salt-works is not restricted to the well alone, but that it extends also to the use of that mountain woodland which seems to have been acquired for the purpose of supplying fuel, without which the salt water would be of little use. The bill itself seems to admit that a use of fuel to the utmost extent that the testator used it, would be properly taken according to the intention of the will, and would not be waste. But the extent of the woodlands, their capacity of reproducing timber of equal value for fuel with that now upon them, and whether the woodcutting proceeds more or less rapidly than such reproduction, is not stated; nor does appear that fuel can be otherwise procured. If a restraint is to take place, the use by the testator might be an improper standard, as he may have used it imprudently or not to the extent that prudence would admit, or to which he would have used it on the increase of his funds, or as the demand for the article or the competition in market, which has since taken place would require, in order to continue the profits as great. It is, therefore, possible that a more full development of facts might change my opinion, these cases depending very much upon the circumstances attending each case; and, consequently, any opinion now given by me, perhaps, ought not to conclude the parties, should a different case be hereafter made out; and will certainly not be intended to authorize malicious or extravagant waste, and which a tenant without impeachment of waste would be restrained from committing. Considering this, then, as a devise as well of the use of the water as of the woodland for fuel, and that the use of the former is unlimited, is the use of the latter unlimited also? Let us consider it, in the first place, by analogy to house-bote, fence-bote, etc. The house or field, which is the principal, may be used during the term to any extent, not amounting to waste; and may be kept in constant repair, although it may require all the timber or fence-bote on the land for that purpose; and so of fire-bote. The party having the right to these botes, and using them in the regular way, cannot be restrained from taking the whole, if such use requires the whole. So, here, the well is as the field to be cultivated, and requires a use of wood commen

surate with the use of water; and, if prudently used to that extent, any other restraint would seem contrary to the principle above declared in the case of botes.

But, again in the case of Hobart, 234, which was an action of waste for felling oaks, etc., the defendant pleaded that he had a lease to him of all mines, etc., and that he felled the oaks to make certain utensils about the mines, without which they could not be used. It appeared that the landlord had been in the habit of taking the same kind of timber for the same purpose, and also the tenant on some previous occasions. The maxim" that the grant of a thing carried all things included, without which the thing granted could not be had," was held not to avail the defendant in this case, for that grant is to be considered of things incident and directly necessary. But suppose the use of timber for these purposes had in that case been incident and directly necessary to the use of the main thing granted, or had been granted also with it (one or the other of which seems to be the case here), could the party have been restrained if, in using the mine to the extent he had a right to use it, it became necessary to use the whole of the timber for these purposes?

This case, too, supports my position that the use by the testator is not a proper criterion in favor of a tenant, as the owner of the fee may waste or use his timber as he pleases; and if it is no criterion in his favor, it ought not to be against him. But this case may perhaps be placed on yet higher ground in favor of the tenants, who, if I am not mistaken, may be considered as without impeachment of waste, or having an unlimited right to use the fuel, in order to effect the objects of the testator. I presume express words to that effect are not necessary in a will, but in this respect, as in all others, the intention shall prevail. In 1 Bro. Ch. Cases, 166, a testator devised land to his wife for life, and, by a codicil, he says, "whereas, by my will, my wife cannot cut any timber, now my will and mind is that she may, whilst she continues my widow, cut timber, for her own use and benefit, at seasonable times in the year." Under this power she began to cut and sell. It was contended that she had not a right to cut timber for sale, but only for her own use on the estate, and for estrovers. The lord chancellor utterly rejected this idea, that she was only entitled to cut for her own use on the estate, etc., and said she was entitled to cut everything that could be called timber; in other words, she was tenant without impeachment of waste. And in 1 Eq. Cas. Ab. 221, it is said,

"if there be a jointress with a covenant that it shall be worth such a yearly value, though her estate be not without impeachment of waste, yet she may do waste to make up the defect in value, and equity will not prohibit."

cence.

The parties here do not take by contract wherein each party would seek to make the best bargain, but, being the one the wife, and the other near relations either of the testator or his wife, were themselves objects of his affection and bounty; and, by means of this devise, too, other near relations and objects of very extensive bounty are intended to participate in his munifiHe had no children in whom to vest his large estate, and, having numerous collaterals, he seeks to make a provision for them by inducing the devisees of his capital, whether vested in the salt-works, or in merchandise, to take the management thereof, and devote their time and labor, not only for their own benefit, as objects nearest his affection, but to raise extensive legacies for his other relation, providing, in case he should have a child, this arrangement should not take place. For what purpose should he limit the use of this property, in favor of one collateral relation, when such limitation might prevent, within the life of his wife, the making a sufficient clear property to pay the legacies to others, and might also prevent the wife, and the other devisees of the life estate, from that gain which they had a chance to make during the said estate, and which was as well the desire of the testator in their favor, as the great inducement on which they would be expected to undertake so important and hazardous a business? Suppose the legacies had failed, in consequence of these devisees not pushing the business as far as the funds placed in their hands would justify; could they be considered as fulfilling the object and desire of the testator, or acting justly by the legatees? For these reasons, my strong impression at present is, that the testator intended a free and unlimited use of his capital, whether consisting of moneyes, salt mineral, or woodland, especially as the quantity of the latter may have been so great as that he may have supposed the capital given, and its probable increase could not, during one life, produce a lasting bad effect to the remainder-man, and was therefore willing to risk this in favor of persons equally dear to him, and as a boon to them for undertaking the task.

It is not contended (nor do I intend to say such allegation would alter my opinion) that any new capital has been, or is likely to be, introduced, or that the money part of it turned

AM. DEC. VOL. VIII-47

out to Le greater than was expected by him. On the contrary, it is stated that the reverse is the fact as to the mercantile transactions, which have been absorbed by the payment of debts; so that a large portion of the bounty which these parties were expected to take, and, consequently, their means of carrying on the works still more extensively, has failed. Upon the whole, I am for affirming the decree.

CABELL, J. The law of waste in England varies and accommodates itself to the varying wants and situations of the different counties in that country. Thus, what is waste in one county is not waste in another. On the same principle, the law of waste, in its application here, varies and accommodates itself to the situation of our new and unsettled country.

The questions in this case, as to the rights of the appellees under the will of William King, relate to the use of certain water impregnated with salt, and to the use of the wood on the lands of the said King, necessary for converting that water into salt. The clause in William King's will on which this controversy depends, is in the following words: "During the lifetime of my wife, it is my intention and request that William Trigg, James King, and her, do carry on my business in copartnership, both salt-works and merchandising, each equal shares; and that, in consideration of the use of my capital, they pay out of the same the following legacies." The legacies are then specified, amounting, as it appears from the answers, to about seventy thousand dollars. I refer to the answers because the amount cannot be ascertained from the will itself, as many of the legacies are given to persons described, not by name, but as the children of certain parents, without mentioning the number of children. As the answers, however, are not replied to, the facts which they state in relation to the controversy, whether responsive to the bill or not, must be taken to be true. First, as to the water. The answers entitled to respect as aforesaid show that the new well which the appellees are sinking is not for the purpose of reaching any new vein of water, but as the only practicable mode of using the old vein. The case of Clavering v. Clavering, 2 P. Wms. 388, is conclusive to show that tenant for life of coal mines, even when not without impeachment of waste, may open new pits or shafts for working the old vein of coal. The reason on which that case was decided applies forcibly to this, viz: that otherwise the works could not be carried on. The objection to the new well being thus removed, the question is only as to the extent to which the ap