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OF THE

Law and Practice of Injunctions,

INTERLOCUTORY ORDERS

IN THE

NATURE OF INJUNCTIONS.

BY THE
HON. ROBERT HENLEY EDEN,

OP LINCOLN'S INN, BARRISTER AT LAW.

WITH COPIOUS NOTES AND REFERENCES

TO THE AMERICAN AND ENGLISH DECISIONS.

ALSO,
AN INTRODUCTION,

AND AN

APPENDIX OF PRACTICAL FORMS.

BY THOMAS W. WATERMAN,

COUNSELLOR AT LAW.

6 Colligere tantum eadem, et digponere paulo significantius conor."-QUIN. DE INST. ORA. lib 3.
“His ergo ex partibus juris, quidquid aut ex ipsa re, aut ex simili, aut ex majore, minoreve, nasci vide-
bitur, attendere, atque elicere, pertentando unamquemque partem juris oportebit."

Cic. DE INVENT. lib. 2.

THIRD EDITION.

IN TWO VOLUMES.

VOL. II.

NEW YORK:
BANKS, GOULD & CO. 144 NASSAU STREET.

ALBANY:
GOULD, BANKS & CO. 475 BROADWAY.

LELAND STANFORD JR. UNIVERSITY.

a 28.963

Northern District of New York, to-wit:-
Be it remembered, that on the nineteenth day of July, in the forty-seventh year of the

Independence of the United States of America, A. D. 1822, WILLIAM GOULD & [L. S.] Co., of the said District, have deposited in this Office the title of a Book, the right

whereof they claim as proprietors, in the words following, to-wit:-"A Treatise on the Law of Injunctions, by the Hon. Robert Henley Eden, of Lincoln's Inn, Barrister at Law. First American Edition, with Notes and References to American Decisions." In conformity to the act of Congress of the United States, entitled " An Act for the encouragement of Learning, by securing the copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the times therein mentioned;" and also, to the act entitled “An Act supplementary to the Act, entitled 'An Act for the encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies during the times therein mentioned,' and extending the benefits thereof to the Arts of Designing, Engraving and Etching historical and other Prints."

RICHARD R. LANSING, Clerk of the Northern District of New York.

Entered according to Act of Congress, in the year one thousand eight hundred and thirtynine, by GOULD, BANKS & Co., in the Clerk's Office of the District Court of the United States, for the Southern District of New York.

Entered according to Act of Congress, in the year one thousand eight hundred and fifty-two, by BANKS, GOULD & Co., in the Clerk's Office of the District Court of the United States, for the Southern District of New York.

ELLIS BARNES & Co., Law Printers, 144 Nassau St.

*CHAPTER VIII.

OF INJUNCTIONS TO STAY WASTE-WHAT ACTS ARE DEEM

ED WASTE.[1]

In treating upon the subject of Waste it will be convenient, What acts are 1st, to enumerate shortly those Acts which are deemed waste: deemed waste,

[1] Waste is a spoil and destruction of the estate, either in houses, woods or lands, by demolishing not the temporary profits only, but the very substance of the thing, thereby rendering it wild and desolate. The common law expresses it significantly by the word vastum. This destruction may be either voluntary, which is a crime of commission, or permissive, which is a matter of omission merely. By voluntary waste is meant the actual and designed demolition of the lands, woods and houses; while permissive waste arises from mere negligence, and want of sufficient care in separations. 3 Blk. Com. 223. Whatever does a lasting damage to the freehold or inheritance, is waste. 2 Blk. 281.

A better definition than the foregoing is, that waste is the destruction of such things on the land, by a tenant for life or for years, as are not included in its temporary profits. In other words it consists in such acts as tend to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance. Hilliard on Real Property, vol. 1, ch. 18, p. 262, citing 1 Swift, 517-8. And the same author very properly adds in a note : “ According to this definition, the term waste, does not, per se, import any thing wrong or unlawful; because it may, under certain circumstances, be lawfully committed. Thus, as will be seen, a particular tenant may hold the land "without impeachment of waste," that is, with the privilege of committing waste. The word however, is more generally used in the different sense of an unauthorized or illegal destruction of timber, &c. According to the latter meaning, we should say for a tenant to cut timber, &c. is waste,” according to the former, "a tenant cannot lawfully commit waste by cutting timber, &c.”

The following, of the various species of waste, may be thus stated. 1st. WASTE TO HOUSES.- A tenant is liable for waste to the house. White v. Hayne, 4 Har. & Johns. Rep. 373. As suffering the house to be uncovered, whereby the timber decays. 7 Com. Law Abr. 361, and cases cited. So also removing the windows, doors, wainscot, &c. to another part of the house, or doing anything which is prejudicial to or lessens its value. 16. 2d, To LANDS.-An act beneficial to lands is not waste. Jackson V. Andrew, 18 Johns. Rep. 431. But converting wood into arable, or arable into wood, is waste. Or cutting down the fruit trees in a garden or orchard. 8 John. Rep. 145. Co. Litt. 53. Cutting down trees by tenant in dower, where the estate is not injured, is not waste. Owen v. Hyde, 6 Yerg. Rep. 334; Jackson v. Brownson, 7 Johns. Rep. 227. But a tenant for life, or by curtesy or dower, cutting oak trees for sale, and not for use on the premises, is waste. Padelford v. Padleford, 7 Pick. Rep. 152; Conner v. Shepard, 15 Mass. Rep. 164; Webb v. Townsend, 1 Pick. Rep. 21. 3d. To GARDENS, WOODS, PARKS, &c.— It is waste to dig up strawberry beds in a garden. Wetherill v. Howells, 1 Camp. 227. Or cutting down the trees in a garden or orchard. Waste defined. 2 Roll. Abr. 317, per Haywood, J.

[graphic]

What acts are 2ndly, to consider under what circumstances, and for and deemed waste.

Sle, against what persons a court of equity interposes to restrain

With regard to the cutting down of timber, it has been held in several of the states, that the strict rules of the English law are not adopted in this country. Thus in Vermont, New York and Ohio, if the land is wholly wild and uncultivated, the tenant may clear a part of it for cultivation ; leaving, however, enough for the permanent use of the farm, which is a point of fact for the jury; and consistent with good husbandry. So in North Carolina, the tenant may clear sufficient land to furnish support for his family, and a dowress may cut timber to make into staves and shingles, if this is the common and only beneficial use of the land. So in New Hampshire, the consumption of necessary fuel at the residence of the widow, cut from the dower land, she not residing thereon, is not waste. So in Maine, it is not waste to cut wood for necessary fuel and repairs. So in Pennsylvania, Virginia and Tennessee, tenants in dower have been allowed to clear wild lands, not exceeding in the former state) a just proportion of the whole tract. It has already been stated, that in several of the states a widow is not dowable of of wild lands, for the reason that they would be of no benefit to her, as the clearing of them would be waste. Walk. Intro. 278; Jackson v. Brownson, 7 John. 227; Parkins v. Coxe, 2 Hayw. 339; Ballantine v. Poyner, 2 Hayw. 110; Hastings v. Crunckleton, 3 Yeates, 261; N. H. Rev. St. 329; Pur. Dig. 221; Findlay v. Smith, 6 Munf. 134; Crouch v. Puryear, 1 Rand. 258; Owen v. Hyde, 6 Yer. 334; Hickman v. Irvine, 3 Dana, 123; 26 Wend. 115 ; Me. Rev. St. 393; Allen v. McCoy, 8 Ohio, 418. (See ch. 9, s. 12, n.)

Where the timber is included in a lease, the lessee may have trespass against the lessor for felling the trees, and the lessor's waste against the lessee. And if a stranger fell them, each may have his own appropriate action. When the trees are expressly excepted, the lessor has an implied power of going on the land to fell them, and may sue the lessee for any injury done to them. Where the timber is neither expressly included nor excluded, it would seem that the tenant has the right to have it continued, but no right to cut it down, unless waste is expressly authorized. 11 Rep. 48, a; Pomfret v. Ricroft, 1 Saun. 322, n. 5; Foster v. Spooner, Cro. Eliz. 18; Heydon v. Smith, Godb. 173; Jackson v. Cator, 5 Ves. 688.

Timber trees are those used for building, and the question is one of local usage. Thus, where birch trees were used in a certain county for buildings of a mean kind, it was held waste to fell them. So horse-chesnuts and pines. But it is also waste to cut those standing in defence of a house, though not timber, as, for instance, willows, beech, maple, &c., or to cut trees for fuel, where there is sufficient dead wood; or to stub up a quickset thorn fence. So it is waste to lop timber trees, and thereby cause them to decay; or to destroy or stub up the young germins or shoots; or to cut down fruit trees growing in the garden or orchard; but not those growing elsewhere. Dyer, 65, a; Co. Lit. 53, a; Cumberland's case, Moore, 812; Jackson v. Brownson, 7 John. 234; Chandos V. Talbot, 2 P. Wms. 606; Rex v. Minchin, 3 Burr. 1308.

It is said, in places where timber is scant, it may be waste to cut such trees, as are not commonly reckoned to be timber. On the other hand, upon a similar principle, it has been held not to be waste, in Massachusetts, to cut oaks for fire-wood, these trees being very abundant, and commonly used for this purpose. But it is waste to cut timber-trees and exchange them for fire-wood, especially if the latter might be otherwise obtained. Padelford v. Padelford.

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