is one, is admitted, but it is denied that it is a highway at all. (ƒ) 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). (g) 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 for 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.

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. ()

Where a person owning land adjoining the sea is liable ratione tenure to repair the sea banks as a defense 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)

(f) Reg. v. Farrer, L. R., I Q. B. 558; 35 L. J., M. C. 210.

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

(4) 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

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

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

CHAPTER V.

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

OF INJURIES TO REALTY FROM WASTE, NEGLIGENCE, AND FIRE.

319. Definition of waste.-" 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 courtesy. 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 of 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.” (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

(a) 2 Bl. Com. ch. 18, s. 6.

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, &c. 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. All 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)1

320. Commissive and permissive waste.-Commissive, or, as it is more frequently termed, willful waste, consists, amongst other things, in the doing by a tenant of some willful 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 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 tim

(b Harnett v. Maitland. 16 M. & W. 257. Redfern v. Smith, 1 Bing. 382. (c) Yellowly v. Gower, 11 Exch 294;

24 Law J., Exch. 299.

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

1 In this country the subject of waste is largely regulated by statute, particularly the remedies therefor, and in the absence of such statutes by which they are specially adopted, the remedies applied by the statutes of Gloucester and Marlbridge do not apply in an action for waste; the estate is not forfeited nor triple damages incurred in any of the states of this country, except where it has been adopted by statute. In some of the states statutes specially applicable to this class of actions exist, whereby forfeiture is incurred, but, in the absence of such statutes, simple damages are recoverable, and the waste is stayed by injunction. Thatcher v. Phinney, 7 Allen (Mass.) 146; Van Dusen v. Young, 29 N. Y. 9; Heil v. Strong, 44 Penn. St. 264; McCoy v. Wait, 51 Barb. (N. Y.) 225; Crockett v. Crockett, 2 Ohio (N. S.) 180; Kidd v. Dennison, 6 Barb. (N. Y.) 9.