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the commission of waste; and 3dly, to show, as consequen- What acts are

deemed waste. tial to it, in what manner it compels an account, or directs

7 Pick. 152; Richardson v. York, 2 Shepl. 216. (Hilliard on Real Property, vol. 1, p. 263, 264.)

A tenant in dower may clear woodland assigned to her in dower, without being guilty of waste, provided she does not exceed the relative proportion of cleared land considered as to the whole tract. Hastings v. Crunckleton, 3 Yeates' Rep. 261. A lessor cannot maintain a writ of waste, nor an action on the caso in the nature of waste, for trees blown down by the winds, and cut up and converted by the lessee, whether he be the owner of the inheritance or otherwise. Shult v. Barker, 12 Serg. & Rawle, 272. In Pennsylvania, by the act of the 27th of March, 1833, No. 60, sec. 3, quarrying and mining, are waste. Brown v. O`Brien, 4 Penn. Law. Jour. 454, Hays, P, J. Where a purchaser having his election to restore certain articles of personal property, makes an offer to do so, which the vendor refuses to accept, the purchaser is not thereafter responsible for any waste or damage the property may sustain without his wilful misconduct. Williams v. Price, 5 Munf. Rep. 507. The law of waste in its application here, must be varied and accommodated to the circumstances of our new and unsettled country. Findlay v. Smith et ux, 6 Munf. 134. It is not waste in a tenant in dower of coal lands to take coal to any extent from a mine already opened, or to sink new shafts into the same vein of coal. Crouch v. Puryear, 1 Rand. Rep. 253. The tenant may penetrate through a seam already opened and dig into a new seam that lies under the first. Ib. The use of wood for the common purposes of the estate, is not waste; therefore, where land is annexed to a furnace, cutting wood for it is no waste; it is using the land in the ordinary mode. Den v. Kinney, 2 Southard's Rep. 552. Digging away the green sward on the bank of a river, and cutting down the trees thereon, so as to expose it to be washed by the river, is waste. Scudder v. Trenton Del. Falls Co. Sax, Ch. Rep. 694.

At common law, the tenant was answerable if the house or other buildings on the premises were destroyed by fire through his carelessness or negligence; and he must rebuild in a convenient time, at his own expense. Co. Litt. 53, where it is said that burning the house by negligence or mischance, is waste. And 1 Ves. 462, where it is held that the destruction of the house by fire is waste, and the tenant must rebuild. The Statute of 6 Anne, c. 31, guarded the tenant from the consequences of accidental misfortune of that kind, by declaring that no suit should be brought against any person in whose house or chamber any fire should accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby. “There does not appear," says Kent, (4 Kent's Com. 82,) “to have been any question raised and judicially decided in this country, respecting the tenant's responsibility for accidental fires, as coming under the head of this species of waste. I am not aware that the Statute of Anne has, except in one instance, (New Jersey,) been formally adopted in any of the states. It was intimated upon the argument in the case of White v. Wagner, 4 Harr. & Johns. Rep. 381, 385, that the question has not been decided; and conflicting suggestions were made by counsel. Perhaps the universal silence in our courts, upon the subject of any such responsibility of tenant for accidental fires, is presumptive evidence that the doctrine of permissive waste has never been introduced and carried to that extent in the common law jurisprudence of the United States."

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What acts are the application of timber wrongfully cut, or accidentally deemed waste. cond

e. severed.

The consideration of the Mode in which injunctions to stay waste are obtained and dissolved, will be deferred to the concluding part of this treatise, where the decisions upon the practice of the courts in this and other cases of Special Injunction will be fully noticed.

[*180]

Waste, which is of two sorts, Voluntary and Permissive, is defined by Lord Coke to be spoil or destruction in houses, gardens, trees or other corporeal hereditaments, to the disinherison of him that hath the remainder in fee simple or fee tail.(a) By the *feudal law, where feuds were originally granted only for life, the commission of waste by the vassal was a cause of deprivation.(6) By our common law it was only punishable in three persons :-Guardian in Chivalry, Tenant in Dower, (and though some doubt has been entertained as to the last,)(c) Tenant by Curtesy.[1] The statutes of Marlbridge,(d) and of Gloucester,(e) afterwards extended

(a) Co. Lit. 53, a.
(b) Craig, 38. Wright, 44. 2 Bl. Com. 282.
(c) Reg. 72. Bro. Ab. Tit. Waste, 88.2 Inst. 301. 2 BI. Com. 282.
(d) 52 H. 3, c. 23.
(e) 6 Edw. 1, c. 5.

[1] By the common law, the action of waste did not lie, except against those who came to their estates by act of law, as, tenants by the curtesy, or in dower. For as the law gave the estate, without and even against the will of the party, it was reasonable that the reversioner should have this remedy for the protection of the inheritance. And hence this action lay against such tenant, as long as he lived, even for waste done by one to whom he had assigned over his estate; and did not lie against the assignee, who was deemed only his servant. Which law, says Lord Coke, continueth to this day. The statutes of Marlbridge and of Gloucester gave the action of waste, in general terms, against every tenant, holding in any manner for life or years; but this was held not to supersede nor affect the remedy already existing by the common law, which is always esteemed the safer and better remedy. But if the heir grants away the reversion, and the tenant also assigns his estate, the assignee attorning to the grantee of the reversion, a new estate for life is thus created by act of the parties. The remedy at common law is, therefore, gone, and the action of waste lies only by force of the statute, and hence it lies against the wrong doer himself. So, if the heir grants away the reversion, and the tenant in dower or by the curtesy attorns to the grantee, a new estate for life is here created by act of the parties, and the grantee of the reversion can sue only upon the statute, the remedy at common law having failed.

the protection of the writ of waste, which lay at common What acts are

deemed waste. law, to tenants for life and tenants for years.(a)[2]

(a) A modern author, whose writings are extremely valuable for the extensive research which they evince, has cited a passage from Bracton, (Lib. 4, c. 18,) to show that both tenants for life and other farmers were punishable at common law, and that these statutes were only enacted in affirmance of it. (Reeve's Hist, of the English Law, vol. 1, 186, vol. 2, 73, 74, 148, n.) It must be admitted that the citation from Bracton supports the doctrine contended for. This, however, is probably the only passage in any author, where it is so laid down. On the other side we have the authority of Lord Coke, repeated in several parts of his writings: who has been followed by every author that has treated upon the subject, and every judge who has had occasion to allude to it: we have two statutes at a period when it is highly improbable that the legislature should have passed laws to enact what was already admitted; and if doubts had existed upon the subject, we should either have heard of them from the preambles, or some declaratory language in the statutes themselves, or they would have been noticed by contemporary writers. Lastly, the reason that is always given for this diversity, viz., " that the estate of the three former was created by the law itself, which, therefore, gave a remedy against them; but that the latter came in by the demise and lease of the owner of the fee, who might have provided against the commission of waste," is so satisfactory, that perhaps, upon the whole, it may not be considered as too hazardous a conjecture that the passage in Bracton is erroneous.

[2] The reason of this was, that the estates mentioned in the text were created by the act of the law itself, which, therefore, gave a remedy against them; but tenants for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee, and if he did not it was his own default. But in favor of the owners of the inheritance, the statutes of Marlbridge, 52 Hen. 3d, c. 33, and of Gloucester, 6 Edward 1, c. 5, provided that the writ of waste shall not only lie against tenants by curtesy, and those in dower, but against one holding for life or years. So that all tenants merely for life, or for any less estate made punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases were without impeachment of waste; that is, with a provision or protection that no man shall sue him for waste committed. 2 Blk. Com. 283. Upon this subject, Mr. Kent observes that though Lord Coke in his commentaries (2 Inst. 299) frequently said, and it was so declared by the King's Bench in the Countess of Shrewsbury's case, 5 Co. 13, that waste would not lie at common law against the lessee for life or years; yet that Mr. Reeve, (Reeve's Hist. of Eng. Law, vol. 2, 73, 148,) who was thoroughly read in the ancient English, insists that the common law provided a remedy against waste by all tenants for life and for years, and that the statute of Gloucester only made the remedy more specific and certain. 4 Kent's Com. 79, 80.

The punishment for waste committed was, by common law, and the statute of Marlbridge, only single damages; except in the case of a guardian who also forfeited his wardship by the provisions of the great charter. But the statute of Gloucester directs that the other four species of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages

deen

d waste.

What acts are *Waste in timber consists in cutting down, lopping, top

ping or doing any act whereby it may be brought to deWaste in cay.(a)[1] Oak, ash and elm are timber in all places,(6) and

trees.

(a) Co. Lit. 53, a.
(6) Ib. 2 Roll. Ab. 814. Dy. 65, a.

to him that hath the inheritance. The expression of the statute is, “he shall forfeit the thing which he hath wasted;” and it was held that under these words, the place was also included. 2 Inst. 303. And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a house, the whole house shall be forfeited, (Co. Litt. 54;) it being impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood, (or perhaps in one room of a house, if that can be conveniently separated from the rest,) that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner. 2 Blk. Com. 283, 284.

“The provision in the statute of Gloucester giving, by way of penalty, the forfeiture of the place wasted, and treble damages," says Kent, (4 Kent's Com. 80,) “was re-enacted in New York, New Jersey and Virginia, and it is the acknowledged rule of recovery in some of the other states in the action of waste. It may be considered as imported by our ancestors with the whole body of the common and statute law then existing, and applicable to our local circumstances. As far as the provisions of that statute aro received as law in this country, the recovery in the action of waste for waste done or permitted, is the place wasted and treble damages; but the writ of waste has gone out of use and a special action on the case in the nature of waste, is the substitute; and this latter action which has superseded the common law remedy, relieves the tenant from the penal consequences of waste under the statute of Gloucester. The plaintiff in this action upon the case, recovers no more than the actual damages which the premises have sustained." See 4 Mass. Rep. 563; 4 Harr. & Johns. 391 ; Chase's Statutes of Obio, vol. 2, 1316; Cammeron & Norw. N. C. Kep. 26; Danes' Abr. vol. 3, c. 78, art. 11, sec. 2, art. 13, sec. 3, 4, 5, art. 14, sec. 2; Jackson's Tr. on Real Actions, 340; Mass. Rev. St. of 1835; Padelford v. Padelford, 7 Pick. Rep. 152; Sackett y. Sackett, 8 Pick. Rep. 309.

The statutory enactments on this subject differ in the several states. See N. Y. Rev. Stat. vol. 2, p. 428, 429, 3d ed.; Elmer's N. J. Dig. p. 593; Tate's Va. Dig. p. 517, 518; Laws of North Carolina, vol. 1, p. 609; Laws of Kentucky, vol. 2, p. 1530, tit. 178; Rev. Stat. of Rhode Island, 1844, p. 186 ; Rev. Stats. of Mass. ch. 105, sec. 1; Rev. Sts. of Maine, ch. 129, sec. 1; Dor. sey's Laws of Maryland, vol. I, p. 224, 225. The remedy, in Maryland, is by injunction, with the penalty of double damages for disobeying it; Rev. Stats. of New Hampshire, 1842, ch. 165, sec. 7; Rev. St. Illinois, 1833, p. 237; Rev. St. of Ohio, 1841, ch. 42, sec. 15; Rev. Stat. of Indiana, 1843, part 2, ch. 28, sec. 106; Howard & Hutchinson's Dig. of Mississippi, p. 351; Rev. Stats. of Vermont, 1839, ch. 51, sec. 14.

[1] Waste consists in felling timber trees, except for estovers, because they are not deemed part of the annual produce of the land, but belong to the owner of the inheritance; therefore the tenant for life has only a qualified

by the custom of different countries, birch, beach, walnut, wil. What acts are low, hornbeam, blackthorn, &c.;(a) the cutting of many sorts de

deemed waste.

(a) 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.

property in them, as far as they afford him shade and shelter, and a right to take the mast and fruit. 1 Inst, 53 a. 11 Rep. 48 b.

In the case of leases for lives, where the timber is included, if the lessor fells the trees, the lessee may maintain an action of trespass against him, and will be entitled to recover damages adequate to the loss he sustains; because the lessee has, by his lease, a particular interest in the trees, such as the mast and fruit of them, and shade and shelter for his cattle; and may lop them, if they be not thereby injured. But the property of the body of the trees remains in the lessor, as parcel of his inheritance; who may punish the lessee in an action of waste, if he fells or damages any of them. So that both the lessor and lessee have an interest in the trees; therefore if a stranger cuts them down, each of them shall have an action against him, to recover their respective loss. 11 Rep. 48 a. 1 Saund. 322 n. 5. Little v. Palister, 3 Greenl. 6.

Where the trees are excepted in the lease, which is usually done, the lessee has no interest whatever in them; and the lessor may have an action of trespass against him, if he either fells or damages them. The lessor has also a power, as incident to the exception, to enter upon the land, in order to fell and take away the trees; though this power, for the greater caution, is often expressly reserved. Foster v. Spooner, Cro. Eliz. 18. Heydon v. Smith, Godb. 173. Jackson v. Cator, 5 Ves. 688.

Birch trees are considered timber in Yorkshire and Cumberland. Cumberland's case, Moore, 812. Pinder v. Spencer, Noy, 30. Beech, cherry, and aspen, in Buckinghamshire. Co. Lit. 53 a. Anon, 2 Roll, Rep. 83. Aubrey v. Fisher, 10 East, 446. Wright v. Powle, Gwill. Tithe Ca. 357. Bibye v. Huckey, Bunb. 192. Beech also in Gloucestershire, (Rex v. Minchin Hampton, 3 Burr. 1309. Abbott v. Hicks, 1 Wood. Tithe Ca. 319. Welbank v. Hayward, 3 Wood. 512,) and Bedfordshire. Bibye v. Huxley, 2 Wood. 237. Beech and willow in Hants. - Layfield v. Cowper, 1 Wood. 330. Gufsley v. Pindar, Hob. 219. In some places, whitethorn, holly, (Pinder v. Spencer, Noy, 30. 1 Inst. 53 a. note 10,) blackthorn, (Cook v. Cook, Cro. Car. 531,) horse chestnut, lime, yew, walnut, crab, and hornbeam, (Duke of Chandos v. Talbot, 2 P. Will. 606. Walton v. Tryon, Gwill, 832,) in other districts, pollards or other timber trees which have been lopped are, contrary to general estimation, also considered timber. Soby v. Molyns, Plow. 470. Anon. Gwill. 165. Duke of Chandos v. Talbot, ubi supra.

If a tenant for life tops timber trees, or does anything else which causes them to decay, it is waste. So if he suffers the young germins or shoots to be destroyed, or stubs them up. i Inst. 53 a. Dyer, 65 a.

Lord Coke says that cutting down willows, birch, beech, asp, maple, or the like, standing in the defence and safeguard of a house, is waste; as also the stubbing up a qnickest fence of whitethorn, or suffering it to be destroyed. He also states that cutting dead wood is not waste; but that turning of trees to coals for fuel, when there is sufficient dead wood, is waste. But it seems to be now settled that if a bare tenant for life cuts down decayed timber, it is waste. Perrot v. Perrot, 3 Atk. 94; and see Whitfield v. Bewoit, 2 P. Will.

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