a liability, if it could exist at all, which was very doubtful, could only arise on sufficient consideration, and that the consideration stated, viz., an immemorial custom to levy rates, was clearly not sufficient, for the power to levy rates existed by statute only, and arose long after the time of legal memory. Any arrangement, therefore, made by adjoining parishes as to mutual repair can be put an end to at any time(e). 317 Repair by District Highway Board.-By the 25 & 26 Vict. c. 61, the formation of district highway boards is authorized. By the 17th section, such board is directed to maintain the highways within their district, and they are to have the same powers, to be subject to the same liabilities, and to perform the same duties as the parish surveyor would have performed or been liable to if the Act had not been passed. By the 18th section provision is made for the issue of a summons by a justice of the peace if the highway is out of repair, and for the making of an order at petty sessions for such repair, which order is removable into the Court of Queen's Bench, in the same way as an order of general or quarter sessions. If the liability to repair is disputed, the justices are to order an indictment against the parish or person charged with the repair (s. 19). But this section only applies to admitted highways, and does not apply where the liability to repair, if the highway is one, is admitted, but it is denied that it is a highway at all(f). When any private person or body politic, liable to repair a highway, ratione tenure, or otherwise, omits to repair such highway, the district board may repair it, and recover the expenses from the party liable (s. 34). Such person or body politic, however, or the district board, may apply by summons before justices to have such highway made repairable by the parish, on payment of such a sum to the highway board as the justices think fit (s. 35)(g). If the parish wish to undertake the repair of a private road in return for its use, and the owner and occupier is willing, on application to justices in petty sessions, they may declare it repairable by the parish (s. 36). No person is to become liable for the repair of a highway by erecting fences between the highway and the adjoining land, if the fences have been erected with the consent of the district board, or other authority having jurisdiction over the highway (s. 46). By the 27 & 28 Vict. c. 101, s. 22, the district board may contract for three years with any person liable to repair a highway, to repair it themselves, and vice versa.

(c) Reg. v. Ashby Folville, L. R., 1 Q. B. 213. Dawson v. Willoughby-with-Sloothby, supra (f) Reg. v. Farrer, L. R., 1 Q. B. 558; 35 L. J., M. C. 210.

(g) These sections are amended by 27 & 28 Vict. c. 101, ss. 23, 24.

318 Ditches of turnpike roads.-By the General Turnpike Act, 3 Geo. 4, c. 126, s. 113, the duty of cleansing, scouring, and keeping open ditches and watercourses for the purpose of keeping turnpike roads dry, is cast upon the trustees, and not upon the owners of the adjoining lands(h).

Where a person owning land adjoining the sea is liable ratione tenurœ to repair the sea banks as a defence against the irruption of the water, the Commissioners of Sewers, under 23 Hen. 8, c. 5, s. 3, have power to do the repairs, and to fine such owner for the amount expended, without giving him any notice; and for such a purpose the mortgagor, who is in receipt of the rents and profits of the land by his tenant, is the owner(i).

By the common law the repair of public sewers is either by prescription ratione tenure, or is imposed upon the land that is benefited or preserved from damage by them(k).

(h) Merivale v. Trustees of Exeter Turnpike Road, L. R., 3 Q. B. 149; 37 L. J., M. C. 40. (i) Reg. v. Baker, L. R., 2 Q. B. 621. Who is "owner" under a building agreement for the purpose of recouping the District Board of Works in London money expended in paving, see Lady Holland v. Kensington Vestry, L. R., 2 C. P. 565. As to paving expenses under the Public Health Act (11 & 12 Viot. c. 63, s. 69), see Cook v. Ipswich Local Board, L. R., 6 Q. B. 451. Who is owner under that Act, Bowditch v. Wakefield Local Board, ib. 567.

(k) See Biglin v. Wylie, 36 L. J., Q. B. 307.

CHAPTER V.

OF INJURIES TO LANDS AND TENEMENTS FROM WASTE, NEGLIGENCE AND FIRE.

SECTION I.-Of injuries to realty from waste, etc.-Commissive and permissive waste--Waste by lessees, tenants for term of years, tenant-at-will, and tenant for life-Waste in trees and woods-Decaying timber-Equitable waste, where tenant for life holds without impeachment of waste-Ecclesiastical dilapidations-Waste by copyholders and tenants in common-Waste from the removal of things attached to the freehold-Landlord's fixtures-Tenant's fixtures-Ornamental and trade fixtures-Fixtures removable by customAbandonment of the right to disannex and remove fixtures-Right of purchasers and mortgagees to enter and remove fixtures-Waste by strangers upon lands demised to tenants-License to commit waste-Injuries from fire— Fire spreading from blast-furnaces, steam-engines, and railways-Fires occasioned by the negligence of servants-Injuries from gunpowder and explosive substances.

SECTION II.-Of remedies for injuries to lands from waste, negligence, and fire.— Actions for waste-Actions by owners of insured premises-Parties, pleadings, defences, and evidence-Assessment of damages.

SECTION III.-Of injunction to prevent waste.-Parties liable to an injunctionEffect of acquiescence in the commission of waste-Lâches or delay in seeking a remedy.

SECTION I.

OF INJURIES TO LANDS AND TENEMENTS FROM WASTE, NEGLIGENCE, and

FIRE.

319"Waste," observes Blackstone, "is a spoil or destruction of houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion. It is either voluntary, which is a crime of commission, as by pulling down a house, or it is permissive, which is a matter of omission only, as by suffering it to

fall for want of necessary reparations. Whatever does a lasting damage to the freehold or inheritance, is waste. Tenant for life or term of years was not by the common law responsible for waste, nor was waste punishable," observes Blackstone, "in any tenant, excepting guardian in chivalry, tenant in dower, and tenant by the curtesy. And the reason of the diversity was, that the estate of these three tenants was created by the act of the law itself, which therefore gave a remedy against them; but tenant 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 fault"(a). But, for the benefit of reversioners, it was provided by the statutes of Marlbridge, 52 Hen. 3, c. 23, and of Gloucester, 6 Ed. 1, c. 5, that every man from thenceforth should have a writ of waste in the chancery against him that holdeth for term of life or years, or a woman in dower. And for waste made in the time of wardship it shall be done as is contained in the great charter, etc. Since the passing of these statutes, therefore, all tenants for life or term of years have been liable in damages for waste, unless their leases have been made to them without impeachment of waste. tenants, whatever their term or interest, are liable for commissive waste; but a mere tenant-at-will, or from year to year, is not responsible for permissive waste(b).

All

320 Commissive and permissive waste.-Commissive, or, as it is more frequently termed, wilful waste, consists, amongst other things, in the doing by a tenant of some wilful injury to the premises demised to him, such as pulling down houses and buildings, prostrating walls, removing landlord's fixtures, breaking windows, or tiles and slates, and uncovering the roofs of houses. Permissive waste is where the tenant remains a passive spectator of decay and ruin, doing nothing to accelerate, and making no effort to retard the evil.

321 Permissive waste by lessees for terms of years.-A tenant for term of years is responsible for permissive as well as commissive waste(c), but where he has not obliged himself by covenant to do repairs, he is not bound to rebuild; for if the subject of occupation perishes from time and natural decay, the landlord is the person to provide a new one, if

(a) 2 Bl. Com. ch. 18, s. 6. Waste has been defined as a lasting damage to the reversion caused by the destruction, by the tenant for life or for years, of such things on the land as are not included in its temporary profits. Profit v. Henderson, 29 Mo. (8 Jones) 325.

(b) Harnett v. Maitland, 16 M. & W. 257. Redfern v. Smith, 1 Bing. 382. Tenants for life are liable for injuries to the inheritance, whether committed by themselves or a stranger, or by one of several life tenants. Wood v. Griffin, 46 N. H. 230.

(c) Yellowly v. Gower, 11 Exch. 294; 24 Law J., Exch. 299.

he think fit(d.) A tenant for years must not suffer the roof of a house to remain uncovered, so as to let the timbers rot, and must use all reasonable endeavors to keep the buildings wind and water-tight; but he is not bound to repair the principal timbers of the roof, nor to replace old materials with new, except where the expense is of a trifling character, and the mischief, if neglected and left unrepaired, would operate to the lasting injury of the inheritance. If a roof is blown off by tempest, he is not bound to put on a new roof, but if a few tiles only are stripped off, he is bound to replace them, or adopt means to keep out the wet. The extent of the liability of a lessee, not holding under a covenant or agreement to repair, for permitting buildings demised to him to go to decay and ruin, will depend upon the age and general state and condition of the buildings at the time he took possession of them, the nature and extent of the repairs required for their preservation, and the duration of his own term and interest in the property; for a tenant-at-will, or a tenant from year to year, cannot be expected to do as much for the preservation of the property as a tenant for a long term of years. If a house is burnt by negligence, this, as we shall presently see, is waste(dd); and if sea-walls and river-banks are destroyed from. want of timely reparation, this will be waste; but if they receive the usual and customary repairs, and are destroyed by a great tempest or a violent inundation, the lessee is not responsible for waste if he fails to rebuild them(e). 322 Commissive waste by tenants for terms of years-Whenever a tenant or lessee makes material changes in the nature of the premises demised to him, which have the effect of converting them into something substantially different from what they were at the time they were placed in his hands, he is guilty.of commissive waste, and is responsible in damages for infringing upon the proprietary rights of the landlord. The tenant by the lease has the use, not the dominion of the property demised to him, and cannot make permanent changes and alterations in the property without the consent of the landlord, although such changes and alterations may greatly enhance the value of it; for the owner has a right to have his houses and lands kept in an unaltered state, surrounded by all their old features, landmarks, and associations(f). Therefore an action is maintainable by the reversioner pending the term against the tenant for inclosing

d) Bayley, J., Wise v. Metcalfe, 10 B. & C, 314.

dd) Cook v. Champlain Transportation Co., 1 Denio, 91.

(e) 2 Roll. Abr. WASTE (C.)

(f) Smyth v. Carter, 18 Beav. 78.