This court in a former trial, determined that the plaintiff was' the owner in fee simple of an undivided one-half interest in certain land, subject to the rights of the defendants as occupying claimants, and the case was remanded to the trial court to determine the rights of the respective parties under the provisions of the Code relating to the rights of occupying claimants. Thereafter the case was tried to a special jnry of three disinterested farmers.
The jury returned a verdict in accordance with the provisions of the General Code but without taking into consideration, waste, including the value of timber or other valuable material removed or destroyed. Defendant claims error on the ground that -the verdict and judgment were against the wieght of the evidence, and that the court erred in the admission of certain evidence and in refusing to admit certain other evidence.
The Court of Appeals reversed the Common Pleas and held as follows:—
1. Plaintiff claims that the improvements which the record shows were upon the land, were not permanent and lasting improvements within the meaning of the Code. We are not in accord with this claim. The lasting improvements do not need to be indestructible, and may be of such a nature that they will depreciate in value. They must be of such a kind and nature as are usually placed upon similar land, and must be such as are intended from their nature to remain on the land for an indefinite period.
2. It is argued by defendants that they are not chargeable with waste for the reason that, as grantees of a tenant in tail, -they are entitled to his immunities, and are not so chargeable. The answer to this argument is that they are claiming under the sections of the code describing the rights of occupying claimants, without which provisions they would have no standing in court. These provisions make the tenants chargeable with waste and the defendants cannot claim the benefits and shirk the disadvantages. The court erred in refusing to permit evidence to be introduced tending to show waste and in charging the jury that they could not -take into consideration waste committed.
Judgment reversed.
Note: Motion to certify overruled, 6 Abs. 400.