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waste.

against any person in whose house or chamber any What acts

are deemed fire accidentally begins (a). But under a covenant to repair, it has been determined that the lessee is bound to rebuild a house destroyed by fire, and where, after the expiration of a written lease, containing a covenant to repair, the tenant verbally agreed to hold over, paying an increased rent, and nothing more passed between the parties as to the terms of the new tenancy; it was holden that the tenant must be presumed to hold under the covenants of the former lease as far as they were applicable to his new situation, and accordingly, the premises being burnt down by fire, that he was bound to rebuild (). Lord Ellenborough, in the same case, held that if a lease contain a covenant to keep the premises in repair, and also a covenant to insure against fire at a specific sum, the tenant's liability on the former covenant, upon the premises being burnt down, is not limited to the amount of the sum agreed to be insured.

It is a rule of great antiquity, that whatever has Fixtures. been once affixed to the freehold can never again be severed, without the consent of the owner of the inheritance. Accordingly, the removing posts, doors, windows, benches, wainscots, tables fixed in the pavement, fixed shelves, groundsels, &c. was considered waste; though annexed by the tenant for his own accommodation. Modern times have, however, introduced several modifications of this rule.

(a) Paradine v. Jane, Aleyn. 27. Earl of Chesterfield v. Duke of Bolton, Com. Rep. 620. Bullock v. Dommit, 6 T. R. 650. Brecknock Company v. Pritchard, ib. 750.

(6) Doe v. Laming, 4 Campb. 73.

What acts are deemed waste.

The whole doctrine upon the subject was so well stated by Lord Ellenborough in the case of Elwes v. Maw (a), that nothing can be added to the substance of that admirable judgment.

It appears from thence that questions respecting the right, to what are ordinarily termed fixtures, principally arise between three classes of persons : 1st, between heir and executor, in which case the rule obtains with the greatest rigor in favour of the inheritance and against the right to disannex (6): 2dly, between the executor of tenant for life or in tail and the remainder man or reversioner, where the right to disannex is considered more favourably for the executor, than in the preceding; and, 3dly, between landlord and tenant, where the rule has been relaxed to the greatest extent.

The first exception which, after some struggles (c), was made to the strictness of this rule, was in favour of Trade, and utensils set up in relation to it. Lord Holt accordingly held, that a soap-boiler might, during his term remove vats, set up in relation to his trade(d). Lord Hardwicke also twice determined, that a fire engine erected by tenant for life to work a colliery, should be considered as personalty, the working of the colliery being not merely an enjoyment of the estate, but in some measure the carrying on of a trade (e). Lord C. B. Comyns also made a

Utensils set up in relation to trade.

(a) 3 East, 28.
(b) See also Lee v. Risdon, 7 Taunt. 188. 2 Marsh. 495.
(c) 42 E. 3. 6. 20 H. 7. 13. a. & b. 21 H. 7. 27.
(d) Poole's case, Salk. 368,

(e) Lawton v. Lawton, 3 Atk. 13. Lord Dudley v. Lord Ward Amb. 113.

waste.

similar determination as to the right of a tenant to What acts remove a cyder mill(a), and the Court of King's

are deemed Bench, in Penton v. Robart (6), as to a varnish house.

Lord Kenyon had, in a case at nisi prius, ex- Buildings tended the doctrine to buildings erected for the for the purpurposes of farming (c). This part of the subject farming. received great consideration in Elwes v. Maw, where the tenant had erected several out-houses at his own expense, for the more necessary and convenient enjoyment of his farm: the court held that he was not intitled to remove them, though he left the premises in the exact state in which he found them. Lord Kenyon, in the above noticed case of Penton Gardeners

and v. Robart, alluded to the instances of gardeners

nurseryand nurserymen in the neighbourhood of the metropolis, whom he considered as entitled to take up the young trees and plants during the continuance of their term. This, if it be so, must be from the law implying an exception in favour of tenants of this description, as carrying on a species of trade (d). The position, however, seems doubtful, and it would be advisable, that leases of property of this nature should contain a covenant enabling the tenant, before the expiration of his term, to remove young trees, hot-house frames, &c.

The indulgence in favour of tenants for years, has Articles of been still further extended to articles of ornament, ornament. which have been put up by him, as marble chimneypieces, pier glasses, hangings, wainscots, if fixed

men.

(a) Cit. ib.
(6) 2 East, 88.
(c) Dean v. Allaly, 3 Esp. N. P. C. 11.
(d) 3 East, 45.

What acts are deemed waste..

Waste in mines, &c.

only by screws, and the like (a). The removal of the articles ought to be before the expiration of the term (6); but if the tenant is still in possession, he may remove them though the term be expired (c).

If the tenant dig for gravel, lime, clay, brickearth, or slate, he commits waste; and in general digging in quarries for stone, or in mines of metal or coal, if they are not open at the time of the demise, is waste (d); and if the tenant open a mine and assign his interest in it, it is still waste in the assignee to work it (e). But the tenant may dig and take the profits of mines which were open at the time of his lease (f); and where a person was tenant for life under a settlement, it was considered to be no objection to his working, that the mines were not open at the time when the settlement was made, they having been opened by a person who had a previous estate tail under the settlement (8).

If there be a demise of lands with the mines, although this does not enable the lessee to open fresh mines if there are already any mines that are open, yet if there are no open mines, the lessee may open and work; as otherwise the grant would not take effect (). But if mines are merely inserted as general words, it

(a) Beck v. Rebow, 1 P. W. 94. Ex-parte Quincey, 1 Atk. 477.
Lawton v. Lawton, sup.
· (6) Poole's case, Salk. 368. Fitzherbert v. Shaw, 1 H. B. 258.

(c) Penton v. Robart, sup. Davis v. Jones, 2 B. & A. 167.
(d) 2 Rol. Ab. 816. Co. Lit. 53. b.
(e) Sanders's case, 5 Co. 12.
(f) Ib. Bac. Ab. Tit. Waste, 2.

(g) Clavering v. Clavering, 2 P. W. 389. Sel. Ca. Ch. 79. Mose. 219.

(h) Sanders's case, sup.

waste.

estovers.

is otherwise; and accordingly where a settlement was What acts made of lands and all mines, waters, trees, &c. both

are deemed Lord Macclesfield and Lord King were of opinion, that the meaning of inserting these words was, that the whole of the inheritance should pass, and accordingly restrained a tenant for life under the settlement, from opening mines (a). But though tenant for life may not open new mines, yet in working the old, he may open new pits and shafts in pursuit of the vein of ore (6).

It is said that the tenant may take as much coal, May dig for iron, and stone, as is necessary for his own use without selling (c), and may dig for gravel or clay for the reparation of the house, though the quarries are not open (d). Where the crown has only a bare reservation of Crown, with

a bare reroyal mines, without any right of entry, it cannot

servation, by prerogative grant a licence to dig up the soil cannot grant and search for mines; but if the mines are open, dig. the crown can restrain the owner of the soil from working them, and can either work them itself or grant a licence to others to work them (e). And it has been repeatedly laid down, with only a few loose dicta to the contrary, that neither a customary tenant without the leave of the lord, nor the

licence to

(a) Whitfield v. Bewit, 2 P. W. 240. So if there is a demise of land, including the trees, though there be no exception, yet the law makes an exception, and the lessee cannot cut them down. Post, 161.

(6) Clavering v. Clavering, 2 P. W. 388. Sel. Ca. Ch. 79. Hellier v. Twiford, cit. ib.

(c) Ro. Ab. 816. S. P. as to cutting turf, Lord Courtown v. Ward, 1 Sch. & Lef. 8.

(d) Co. Lit. 53. b.
(e) Per Lord Hardwicke Lyddall v. Weston, 2 Atk. 20.

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