66

the evidence of title. It is said that every conversion of land from one species to another as ploughing up woodland, or turning arable into pasture land—is waste, and it has even been said that building a new house is waste (). But modern authority does not bear this out; "in order to prove waste you must prove an injury to the inheritance either in the sense of value " or " in the sense of destroying indentity" (7). And in the United States, especially the Western States, many acts are held to be only in a natural and reasonable way of using and improving the land — clearing wild woods for example— which in England, or even in the Eastern States, would be manifest waste (m). As to permissive waste, i. e., suffering the tenement to lose its value or go to ruin for want of necessary repair, a tenant for life or years is liable therefor if an express duty to repair is imposed upon him by the instrument creating his estate; otherwise he is not (n). It seems that it can in no case be waste to use a tenement in an apparently reasonable and proper manner, “having regard to its character and to the purposes for which it was intended to be used" (0), whatever the actual consequences of such user may be. Where a particular course of user has been carried on for a considerable course of time, with the apparent knowledge and assent of the owner of the inheritance, the Court will make all reasonable presumptions in favour of referring acts so done to a lawful origin (p). Destructive waste by a tenant at will may amount to trespass, in the strict sense, against the lessor.

(k) "If the tenant build a new house, it is waste; and if he suffer it to be wasted, it is a new waste." Co. Litt. 53 a.

(1) Jones v. Chappell (1875), 20 Eq. 539, 540-2 (Jessel M. R.); Meux v. Cobley, '92, 2 Ch. 253.

(m) Cooley on Torts, 333.

(n) Re Cartwright, Avis v. Newman (1889), 41 Ch. D. 532, 58 L. J. Ch. 590. An equitable tenant for life is not liable for permissive waste: Powys v. Blagrave

(1854), 4 D. M. G. 448: Re Hotchkys, Freke v. Calmady (1886), 32 Ch. D. 408, 55 L. J. Ch. 546.

(0) Manchester Bonded Warehouse Co. v. Carr (1880), 5 C. P. D. 507, 512, 49 L. J. C. P. 809; following Saner v. Bilton (1878), 7 Ch. D. 815, 821, 47 L. J. Ch. 267; cp. Job v. Potton (1875), 20 Eq. 84, 44 L. J. Ch. 262.

(p) Elias v. Snowdon Slate Quarries Co. (1879), 4 App. Ca. 454, 465, 48 L. J. Ch. 811.

The reason will be more conveniently explained hereafter (9).

Modern law of waste: tenants for life. In modern practice, questions of waste arise either between a tenant for life (r) and those in remainder, or between landlord

(g) See below in sect. vii. of this chapter..

(r) In the United States where tenancy in dower is still common, there are many modern decisions on questions

Modern law of waste.

of waste arising out of such tenancies. See Cooley on Torts, 333, or Scribner on Dower (2nd ed. 1883), i. 212-214; ii. 795 sqq.

What constitutes waste in England might not be considered waste in the United States, or vice versa. And this is because the material conditions of the two countries are different. See Kidd v. Dennison, 6 Barb. 19; Keller v. Eastman, 11 Vt. 293; Findley v. Smith, 6 Munf. 134.

In some parts of the United States standing timber is not regarded as valuable and its removal is the first step towards cultivation. Whether the removal of timber is waste depends on the circumstances, good husbandry being the test, and the question is for the jury. Alexander v. Fisher, 7 Ala. 514; Drown v. Smith, 52 Me. 141; Gardener v. Dering, 1 Paige, 574; Wilkinson v. Wilkinson, 59 Wis. 557; Keeler v. Eastman, 11 Vt. 293; McGregor v. Brown, 10 N. Y. 114; Chase v. Hazelton, 7 N. H. 171; King v. Miller, 99 N. C. 583; 6 S. E. Rep. 660; Clemence v. Steere, 1 R. I. 222.

It is not waste to cut timber for necessary fences though timber is scarce. Calvert v. Rice, 91 Ky. 533; 16 S. W. Rep. 351. Nor to cut fuel for a furnace from land which is attached to the furnace. Den v. Kinney, 5 N. J. L. 552.

That the value of land is not diminished, or even increased, is no defence to actual waste. Rossman v. Adams, 91 Mich. 69; 51 N. W. Rep. 685; Moses v. Johnson, 88 Ala. 517; 7 So. Rep. 146.

When the chief inducement to cut timber is the profit from its sale, waste is committed. Kidd v. Dennison, 6 Barb. 19; Davis v. Gillian, 5 Ired. Eq. 308.

Selling hay off a farm is not waste, but aliter as to digging bog-grass. Sarles v. Sarles, 3 Sandf. Ch. 601. So, taking clay from the soil for the manufacture of bricks is waste. University v. Tucker, 31 W. Va. 621; 8 S. E. Rep. 410; Livingston v. Reynolds, 2 Hill (Ky.), 157. Also, letting hogs injure the character of meadow land is waste. Bellows v. McGinnis, 17 Ind. 64.

Mere ill-husbandry is not waste. Richards v. Torbett, 3 Houst. 172. Yet, it has been held that neglect to observe the proper rotation of crops was waste. Wilds v. Layton, 1 Del. Ch. 226. And that the

and tenant. In the former case, the unauthorized cutting of timber is the most usual ground of complaint; in the latter, the forms of misuse or neglect are as various as the uses, agricultural, commercial, or manufacturing, for which the tenement may be let and occupied. With regard to timber, it is to be observed that there are "timber estates " on which wood is grown for the purpose of periodical cutting and sale, so that " cutting the timber is the mode of cultivation " (8). On such land cutting the timber is equivalent to taking a crop

(s) As to the general law concerning timber, and its possible variation by local custom, see the judgment of Jessel

M. R., Honywood v. Honywood (1874), 18
Eq. 306, 309, 43 L. J. Ch. 632.

exhaustion of the soil by constant tillage was waste. Sarles v. Sarles, 3 Sandf. 601.

The tearing down of a house is waste though a better one replace it. Dooley v. Stringham, 4 Utah, 107; 7 Pac. Rep. 405.

It is permissive waste to allow land to be sold for taxes. Cannon v. Barry, 59 Miss. 289. Or to suffer a gin-house to be dismantled. Id. Or to suffer a pasture to be overrun with weeds. Clemence v. Steere, 1 R. I. 272. But it is not waste to allow buildings used for housing slaves before the emancipation to remain unrepaired thereafter unless their utility in some other direction be apparent. Sherrill v. Connor, 107 N. C. 630; 12 S. E. Rep. 588.

An action is maintainable for injury to a reversionary right. Webb v. Portland Mfg. Co., 3 Sumn. 190. While a life tenant shall not open new or discontinued mines, (Gaines v. Greene, etc. Co., 32 N. J. Eq. 86; Franklin Coal Co. v. McMullen, 49 Md. 549), he may exhaust mines and quarries open at the commencement of the estate. Sayers v. Haskinson, 110 Pa. St. 473; 1 At. Rep. 308; McCord v. Oakland Quicksilver Co., 64 Cal. 134; 27 Pac. Rep. 863; Russell v. Merchants' Bank, 47 Minn. 286; 50 N. W. Rep. 228.

An injunction will issue upon threats to commit waste. White Water Valley Canal Co. v. Comeggs, 2 Ind. 469; Loundan v. Warfield, 3 J. J. Marsh. 196. But not unless the injury would be irreparable and impossible to compensate by damages. Atkins v. Chilson, 7 Metc. 398; Poindexter v. Henderson, 1 Miss. 176. Where the title is in dispute no injunction will issue. McBride v. Board of Commrs., 44 Fed. Rep. 17; Nevitt v. Gillespie, 2 Miss. 108. But a majority of the late cases are to the contrary. Kinsler v. Clarke, 2 Hill Eq. 617; Snyder v. Hopkins, 31 Kan. 557; Duvall v. Waters, 1 Bland, 569; Lamier v. Allison, 31 Fed. Rep. 100. See cases cited, ante, p. 225.

off arable land, and if done in the usual course is not waste. A tenant for life whose estate is expressed to be without impeachment of waste may freely take timber and minerals for use, but, unless with further specific authority, he must not remove timber planted for ornament (save so far as the cutting of part is required for the preservation of the rest) (t), open a mine in a garden or pleasure-ground, or do like acts destructive to the individual character and amenity of the dwelling-place (u). The commission of such waste may be restrained by injunction, without regard to pecuniary damage to the inheritance: but, when it is once committed, the normal measure of damages can only be the actual loss of value (v). Further details on the subject would not be appropriate here. They belong rather to the law of Real Property.

Landlord and tenant. As between landlord and tenant the real matter in dispute, in a case of alleged waste, is commonly the extent of the tenant's obligation, under his express or implied covenants, to keep the property demised in safe condition or repair. Yet the wrong of waste is none the less committed (and under the old procedure was no less remediable by the appropriate action on the case) because it is also a breach of the tenant's contract (x). Since the Judicature Acts it is impossible to say whether an action alleging misuse of the tenement by a lessee is brought on the contract or as for a tort (y): doubtless it would be treated as an action of contract if it became necessary for any purpose to assign it to one or the other class.

(t) See Baker v. Sebright (1879), 13 Ch. D. 179, 49 L. J. Ch. 65; but it seems that a remainderman coming in time would be entitled to the supervision of the Court in such case; ib. 188.

(u) Waste of this kind was known as "equitable waste," the commission of it by a tenant unimpeachable for waste not being treated as wrongful at common law; see now 36 & 37 Vict. c. 66 (the Su

preme Court of Judicature Act, 1873), 0. 25, sub s. 3.

(v) Bubb v. Yelverton (1870), 10 Eq. 465. Here the tenant for life had acted in good faith under the belief that he was improving the property. Wanton acts of destruction would be very differently treated.

(x) 2 Wms. Saund. 646.

(y) Eg. Tucker v. Linger (1882), 21 Ch. Div. 18, 51 L. J. Ch. 713.

Conversion: relation of trover to trespass. Conversion, according to recent authority, may be described as the wrong done by "an unauthorized act which deprives another of his property permanently or for an indefinite time" (z). Such an act may or may not include a trespass; whether it does or not is immaterial as regards the

(2) Bramwell B., adopting the expression of Bosanquet, arg., Hiort v. Bott (1874), L. R. 9 Ex. 86, 89, 43 L. J. Ex. 81. All, or nearly all, the learning on the

Relation of trover to trespass. 660, supra, p. 420.

subject down to 1871 is collected (in a somewhat formless manner it must be allowed) in the notes to Wilbraham v. Snow, 2 Wms. Saund. 87.

Vide Grafton v. Carmichael, 48 Wis.

In order to maintain trover a general or special property in the plaintiff is required. Kemp v. Thompson, 17 Ala. 9; Glaze v. McMillion, 7 Port. 279; Taylor v. Howall, 4 Blackf. 317; Barton v. Dunning, 6 Id. 209. A mere equitable title without legal possession will not support the action. Fulton v. Fulton, 48 Barb. 581; Lespeyre v. McFarland, 2 Foyl. 187; Northern R. R. Co. v. Paine, 119 U. S. 561; Street v. Nelson, 80 Ala. 230. Nor will an executory contract for goods. Wood v. Atkinson, 2 Murph. 87; Jones v. Morris, 7 Ired. 370; Deeley v. Dwight, 132 N. Y. 59; 30 N. E. Rep. 258; Tuthill v. Wheeler, 6 Barb. 362; Whitcomb v. Hungerford, 42 Barb. 177.

A vendor reserving title till payment by vendee may bring trover. Bryant v. Clifford, 13 Metc. 138; Rhodes v. Dickinson, 79 Ga. 724; 4 S. E. Rep. 164. But see Newhall v. Kingsbury, 131 Mass. 445. But one who consigns goods to be paid for as sold cannot maintain trover. Hardy v. Munroe, 127 Mass. 64. Nor can a pledgor who parts with possession. Colly v. Cressy, 5 N. H. 237.

A creditor who holds his debtor's property under an agreement to sell and apply the proceeds on the debt may sue in trover. Fish v. Clifford, 54 Vt. 344. But a mortgagee cannot until default. Heflin v. Slay, 78 Ala. 180. Contra, Gibbs v. Weston, 110 Pa. St. 312; 1 At. Rep. 921. Nor can the general owner where there has been a lease of chattels. Fort v. Pursley, 82 Ill. 152; Owens v. Weedman, Id. 409. Nor can the reversioner of a life tenant of chattels bring trover during the life tenancy. Lewis v. Mobley, 4 Dev. & B. 323. But see Logan v. Hartford Coal Co., 9 Heisk, 689.

Possession, or the right of immediate possession, entitles one to maintain trespass against a wrong-doer. Staples v. Smith, 48 Me. 471; Becker v. Smith, 59 Pa. St. 473; Durfour v. Anderson, 95 Ind. 302; Muggridge v. Eveleth, 9 Metc. 233.