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topping, or doing any act whereby it may be brought to decay (a). Oak, ash, and elm are timber in all places (6), and by the custom of different counties birch, beech, walnut, willow, hornbeam, blackthorn, &c. (c); the cutting of many sorts of trees which are otherwise not timber, as hornbeams, hazels, willows, sallows, &c. will, from the situation in which they are planted (as if they support a bank, or grow within the site of and protect a house) be considered waste (d). Any thing tending to the destruction of the subject demised is waste; thus, though the lessee may cut underwood, yet the eradicating it, or cutting it at unseasonable times, or destroying the germins, is waste (e). Where the underwood is the most important part of the produce, it will not be waste to cut timber, if necessary for its growth (f). And if trees, be excepted out of a demise, waste cannot be committed by cutting them down (g).
The cutting of trees is justifiable for Estovers, as house-bote, hay-bote, plough-bote, and fire-bote. The tenant may take oak, elm, or ash for the repair of the house: and if they are under 16 years growth, and there is no underwood, it is said that he may What acts take them for fuel. He has this privilege of com- waste.
came in by the demise and lease of the owner of the fee, who might
(a) Co. Lit. 53. a.
(c) Co. Lit. 53. a. Mo. 812. 2 Roll. Ab. 817. 819. Cro. Jac. 126. Cro. Car. 531. 6 Com. Dig. 505. 2 P. W. 606.
(d) Co. Lit. 53. a. Hob. 219.
are deemed mon right, so that a covenant that he may take estovers without committing waste is void, and if there be a covenant that he may take by assignment, it has been determined that he may take without(a). There is no difference if the lessor covenants to repair, for if he neglects, the lessee may nevertheless cut timber for that purpose (b).
If the tenant cuts more than is actually necessary for repairs, or if after cutting down the trees he suffer them to lie on the ground and decay, it is waste (c). It is also a rule, which appears to have been rigidly adhered to, that the trees shall be applied to the specific purpose for which they are allowed to be cut. Thus if the tenant cut down trees, which in the working turn out to be unfit for the use designed, he cannot convert them to any other use (d); nor sell them and buy fit wood with the money (e), and even if he sell them and buy them again, and then employ them in repairs, it is waste (f); nor can he, by cutting down timber, repay himself the money he has expended in repairs (g). Thus if the lessor having covenanted to repair, neglects to do so, the lessee, though he may cut timber, cannot
wages of the workmen out of it (h). (a) Co. Lit. 53. a. Hob. 296. Cro. Eliz. 604. 7 Bac. Ab. 252. (6) Brownl. 240. Mo. 23. pl. 80. 7 Bac. Ab. 261. (c) Co. Lit. 53. b. (d) Earl of Pembroke's case, Clayt. 47. pl. 81. (e) Attorney-general o. Lord Stawell, 2 Anst. 601. (f) Co. Lit. 53. b. (g) Ib. Gower v. Eyre, Coop. 156. (h) 7 Bac. Ab. 261.
What acts are deemed waste.
Waste in gardens, parks, ponds, &c.
In a case before Lord Thurlow, a tenant for life, with power under an enclosure act to mortgage for the expenses of an inclosure, felled timber and applied the produce to that purpose; a decree was, however, made against his assets for an account of the timber cuț(a). Ecclesiastical bodies are an exception to this rule; and it seems that they may sell the timber on one estate, and apply the produce to the repairs of any other (6).
If the tenant cut down or destroy fruit trees, if growing in a garden or, orchard, it is waste; but if torn up by the wind, he may afterwards cut them (c). Destruction of saffron heads in a garden has been said not to be waste (d), but the ploughing up strawberry beds clearly is(e). If tenant of a dovehouse, park, warren, fish-pond, or similar tenement, take so much of the stock, or neglect the means of preserving it, so that there is not as much left, as he found at the time of the demise, it is waste (f). It is said, however, that unless it be a free warren by prescription, the tenant may destroy coney burrows (g): but in a modern case, this distinction was not attended to (h).
(a) Lee v. Alston, 1 Bro. C. C. 194. 3 ib. 37. 1 Ves. jun. 78.
(6) Knight v. Mosely, Amb. 176. Wither v. Dean, &c. of Winchester, 3 Meriv. 421. Herring v, Dean, &c. of St. Paul's, 2 Wils. Ch. Rep 1.
(c) Co. Lit. 53. a.
(f) Hob. 236. Co. Lit. 53. b. Vavesour's case, 2 Leon. 222. Anon. 4 Leon. 240.
(g) Sill v. Mole, Toth. 210.. 2 Roll. Ab. 815. Moyle v. Mayle, Owen, 66. P. R. C. 213. 22 Vin. Ab. 521.
(h) Angerstein v. Hunt, 6 Ves. 488.
Any material alteration in the nature of the thing What acts
are deemed demised is waste, though the value be not diminished,
waste. nay, even though it be increased, for the landlord is
Waste in thereby in danger of losing evidence of the identity the alteraof his property. Accordingly, the conversion of tion of the arable into wood, or of meadow into arable, pro- mised. vided it be ancient pasture, is waste; and injunctions have in all times been granted to prevent it (a). Converting a meadow into an orchard, or ploughing up a hop ground and sowing it with grain is waste(6). It has been said that the division of a great meadow into a number of parcels, is not waste (c). But the conversion of a corn-mill into a fulling-mill, or a brew-house into any other office, is waste (d); and in a modern case Mr. Justice Buller was clearly of opinion, that the changing a logwood-mill into a cotton-mill, was waste (e). If the lessee pulls down the house and build a new one, it is waste, if the new one is either larger or smaller than the one demised (f). In a late case one of the principal grounds upon which an injunction was granted against proceeding with alterations in a house, was because they tended wholly to change the nature of the property, by
(a) Hastings v. Cowper, Toth. 114. Lord Howard v. Ridley, ib. 290. Atkins v. Temple, 1 Ch. Rep. 13. Cole v. Peyson, 1 Ch. Rep. 57. Fermier v. Maund, ib. 116. Tregonwell v. Lawrence, 2 Ch. Rep. 49. Gunning v. Gunning, 2 Show. 8. Clarke v. Thorp, 2 Ves. 233. Lord Grey de Wilton v. Saxon, 6 Ves. 107.
(6) Owen, 66.
What acts are deemed waste.
Waste in houses.
Waste arising from the act of God.
converting a private house, into a shop for the purpose of a coachmaker's business (a).
Waste in houses consists either in pulling down or prostrating them, or suffering them to remain uncovered, whereby the timbers become rotten, or the walls decay for want of daubing (6). The tenant must at his peril keep the house from wasting, though there be no timber on the premises ; but if the house was ruinous at the time of the lease, and fall within the term, this is not waste (c). Lord Coke has laid down that if tenant builds a new house, it is waste (d): there are, however, several authorities to the contrary (e), and it is probable, as it has been suggested, that he must be understood in this passage to be speaking of the lessee rasing the house and building another less large (f).
In general waste which ensues from the act of God, as lightning or tempest, is excusable (8), but the tenant must repair it as soon as possible, for if he suffers the house to decay from remaining uncovered, it becomes waste. At common law the tenant was punishable if the house was burnt by negligence or mischance, but by the 6 Ann, c. 31. it is provided that no action is to be prosecuted
(e) Keilway, 38. b. Lord Darcy v. Askwith, Hob. 238. Cecil v. Caves, 2 Rol. Ab. 815.
(f) 7 Bac. Ab. 256.
(8) Co. Lit. 53. a. Brooke notices a singular distinction, viz. that if strangers, enemies to the king, destroy a house, it is waste; but not if it be done by traiterous subjects.