{ "id": 1564915, "name": "O'Kane v. O'Kane", "name_abbreviation": "O'Kane v. O'Kane", "decision_date": "1915-02-08", "docket_number": "", "first_page": "33", "last_page": "37", "citations": [ { "type": "official", "cite": "117 Ark. 33" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "33 S. W. 561", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "93 Ark. 355", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "pin_cites": [ { "page": "392" } ], "opinion_index": -1 }, { "cite": "124 S. W. 758", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "93 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546806 ], "opinion_index": -1, "case_paths": [ "/ark/93/0353-01" ] }, { "cite": "66 Am. Dec. 450", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "7 Gray (Mass.) 8", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 1996027 ], "opinion_index": -1, "case_paths": [ "/mass/73/0008-01" ] }, { "cite": "3 N. C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11964736, 11964633 ], "opinion_index": -1, "case_paths": [ "/nc/3/0110-02", "/nc/3/0110-01" ] }, { "cite": "20 Am. Dec. 667", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "3 Wend. (N. Y.) 104", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2144190 ], "opinion_index": -1, "case_paths": [ "/wend/3/0104-01" ] }, { "cite": "37 L. R. A. (N. S.) 771", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": -1 }, { "cite": "37 S. W. 306", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": -1 }, { "cite": "63 Ark. 10", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720285 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/63/0010-01" ] }, { "cite": "129 S. W. 534", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "95 Ark. 246", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543547 ], "opinion_index": -1, "case_paths": [ "/ark/95/0246-01" ] }, { "cite": "55 L. R. A. 701", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "62 N. E. 210", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "7 Ala. 514", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8496603 ], "opinion_index": 0, "case_paths": [ "/ala/7/0514-01" ] }, { "cite": "25 N. H. 361", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4414515 ], "opinion_index": 0, "case_paths": [ "/nh/25/0361-01" ] } ], "analysis": { "cardinality": 478, "char_count": 7310, "ocr_confidence": 0.431, "pagerank": { "raw": 2.2497309110599426e-07, "percentile": 0.7812953573741171 }, "sha256": "4622c8d23ff36bf0f2326dde88e441093bb89bfe3f5a9441837bb1351a4d95ef", "simhash": "1:59f0c9d0a262d8c7", "word_count": 1317 }, "last_updated": "2023-07-14T17:56:14.924196+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "O\u2019Kane v. O\u2019Kane." ], "opinions": [ { "text": "Hart, J.,\n(after stating the facts). We are of the opinion -that under the facts and circumstances in evidence it would be equitable waste for the defendant to cut down the walnut and pecan trees.\nEquitable waste has been defined to be \u201cthat which a prudent man would not do with his own property.\u201d Professor Pomeroy says that the oases of equitable waste are almost, if not exclusively, confined to the destruction or removal of buildings, the carrying away of the soil, the cutting of ornamental or sheltering trees and shrubs and the cutting of saplings and \u00a1stripping the land of timber.\nContinuing, the same author said: \u201c \u2018Ornamental\u2019 as applied to trees and shrubs in matters of equitable waste is a technical term,\u201d and he quoted with approval the following language from an opinion rendered bv Lord Eldon: \u2018 \u2018 The question is not, whether the timber is or is not ornamental; but the fact to be.determined is that it was planted for ornament; or, if not originally planted for ornament, was, as we express it, left standing for ornament by some person having the absolute power of disposition. \u201d Pomeroy\u2019s Equity Jurisprudence (3 ed.), vol. 5, \u00a7 490.\nIn the case of Clement v. Wheeler, 25 N. H. 361, the court said that a tenant for life will be enjoined from committing equitable waste by cutting timber planted and left standing for the \u00a1shelter or ornament of a mansion house or grounds and that this \u00a1principle has been extended from the. ornament of a house outhouses and grounds, and then to the vistas and avenues of the estate. See, also, Alexander v. Fisher, 7 Ala. 514.\nThe facts in the case before us show that all of the four hundred acre tract of land allotted to' Mrs. O\u2019Kane for her life was in cultivation except this small grove of walnut and pecan trees, that this grove was situated next to the river bank and had been reserved by the owners of the fee for the purpose of a building site; also that it had been reserved because of the fruit the trees might bear and for the purpose of ornament.' The testimony shows that all the remainder of the estate had been cleared up and that this .small grove of walnut and pecan trees had \u00a1been left by the owners in fee and that it was intended that the trees should never be cut down or destroyed.\nUnder these circumstances we think the case clearly falls within the definition .of equitable waste and are of the opinion that the chancellor should have enjoined the defendant from cutting down the .trees as prayed for by the plaintiff.\nIt follows that the decree will be reversed and the cause remanded with directions to the chancellor to \u00e9nter a decree in accordance with this opinion.", "type": "majority", "author": "Hart, J.," } ], "attorneys": [ "J. D. Benson, J. V. Bourland and J. D. Arbuckle, for appellant.", "Robert J. White, for appellee." ], "corrections": "", "head_matter": "O\u2019Kane v. O\u2019Kane.\nOpinion delivered February 8, 1915.\n1. Equitable waste\u2014what constitutes.\u2014Equitable waste is defined as that wbicb a prudent man would not do with bis own property.\n2. Equitable waste\u2014ornamental trees\u2014right of life-tenant to cut \u2014injunction.\u2014Tbe life-tenant of an estate will be enjoined from committing equitable waste committed .by cutting down trees on the estate, where .the same have been reserved by the owner of the fee for ornament and use on a .proposed building site.\nAppeal from Franklin Chancery Court, Ozark District; W. A. Falconer, Chancellor;\nreversed.\nSTATEMENT BY THE COURT.\nWalter 0 \u2019Kane instituted this action in the chancery \u2022court against Lizzie O\u2019Kane to enjoin her from cutting and removing'from a certain tract of land a walnut and pecan grove comprising between two and four acres. The facts are as follows:\nIn 1912 Lizzie O\u2019Kane obtained .a decree of divorce from Walter O\u2019Kane. The latter owned at that time, among otter lands, a tract of bottom land comprising about 470 acres. When the decree of divorce was granted to Lizzie O\u2019Kane under section 2684 of Kirby\u2019s Digest she was allotted four hundred acres of this land to hold during her natural life. The tract of land .allotted to 'her bordered on the Arkansas River and next to the river there was a grove of pecan and walnut trees variously estimated at from two to four acres. Walter O\u2019Kane inherited the land from his mother, and he wished to preserve this grove because it had been preserved by his ancestors for a building site and because he thought it added to the value of his inheritance. It had been determined in the lifetime of his mother that the trees should not be cut down and they had been carefully preserved ever since. The remainder of the four hundred acres was in .cultivation. The rental value of the land was variously estimated at from seven to eight dollars per acre.\nAccording to the testimony of several witnesses introduced by the plaintiff it was shown that it would not be good husbandry to cut down the trees, and that pecan and walnut trees were very scarce in that part of the country.\nOn the other hand, several witnesses were introduced by the defendant who testified that it would be more profitable to the land to cut down the trees than to let them remain standing.\nThe life expectancy of the defendant was thirty-five years. Other facts will be referred to in the opinion. The chancellor found the issues in favor of the defendant and dismissed the complaint for want of equity. The plaintiff has appealed.\nJ. D. Benson, J. V. Bourland and J. D. Arbuckle, for appellant.\nIt would be equitable waste to cut the grove of timber. 62 N. E. 210-213; 193 111. 372; 55 L. R. A. 701; 8 Am. & Eng. Decisions in Equity, 493; Id. 498. Equitable waste may result even where the tenant has a right at law to take timber, as where trees are being cut too young, or are growing for ornament, f-or fruit, or building site, or the like. 6 Jur. N.