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estate, to the inheritance, or to the prejudice of any one who has an interest in the inheritance. Waste is divided into legal waste, and equitable waste,' and also into voluntary waste and permissive waste. The distinction between voluntary and permissive waste has been thus defined: "Voluntary waste, sometimes called commissive or active waste, consists in the commission of some positive act which causes injury to the inheritance, as pulling down or otherwise destroying a house, cutting down timber, or the like. Generally, it consists of some destructive act of the tenant himself, but destructive acts of a stranger for which the tenant is liable, have been classified under the head of positive waste. Permissive waste consists in the mere neglect or omission of some duty, thereby causing an injury to the inheritance, as suffering the premises to go to decay for want of necessary repair, or, possibly, by allowing parts of the premises to be submerged by water to their injury. The term seems to include, also, not only all destruction arising from neglect of the necessary reparations, but also such as proceeds from all casualties not occasioned immediately by an act of God.” 8

SECTION 48. WHAT CONSTITUTES WASTE.

To constitute waste, the act must be wrongful, and there must be an appreciable 10 injury to the inheritance in some form." In an action by the owner 6 For explanations of the different

subject of Equity Jurisprukinds of estates,

dence, Vol. VII, Sub. 20. Property, Vol. VI, Sub. 17. 8 American and English Ency. of • American and English Ency. of

see

Real

Law, Vol. XXX, p. 236-7. Law, Vol. XXX, p. 236. 9 McDaniel vs. Callon, 75 Ala., 329. Alexander vs. Fisher, 7 Ala., 10 Sheppard vs. Sheppard, 2 Hayn. 514; Price vs. Ward, 25 Nev.,

(3 N. C.), p. 382; Holderness 203; Clemence vs. Steere, 1 R.

vs. Lang, 11 Ont., 1. I., 272; 53 Am. Dec., 621; " Pynchon vs. Stearns, 11 Met. Cooley vs. Stringham, 4 Utah, (Mass.), 304; 45 Am. Dec., 207;

Bandlow vs. Thieme, 53 Wis., For distinction between legal

waste and equitable waste, see

107.

60.

of the fee, against the owner of the life estate to enjoin the commission of waste by cutting timber, the court instructed the jury as follows: Waste is whatever does a lasting damage to the inheritance, and tends to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance. So what might be for the good and convenience of the tenant for life by clearing parts of the land, might, at the same time, be to the permanent loss of the owner in fee simple, and consequently waste. If the jury believe that the contemplated cutting, if done, would lessen the value of the fee after the death of the life tenant, they should find for the plaintiff; if not, then for the defendant. It was held that the instruction was a correct enunciation of the law on the subject of waste, as recognized in the United States. 12

In order that a mortgagee may maintain an action against a mortgagor in possession for acts of waste committed by him, it must be made to appear that the act complained of has so affected the value of the property that the plaintiff has suffered a damage in reference to the security.13

Where a co-tenant by cutting down and clearing woodland, beyond his interest has greatly injured the interest of his co-tenant, he would be liable for waste. And so if the tenant for life cuts down more woodland than is necessary for the enjoyment of his estate, and has injured the remainder, he would be guilty of waste and liable to account. It is the ultimate injury done to the rights of the plaintiffs, as co-tenants or in remainder, which gives them the right to complain. For, if the clearing of the land had improved its value to the co-tenant or remainder-man, it could not be pretended that still the co-tenant, or tenant for life, would be liable for waste.14

13 Dawson vs. Coffman, 28 Ind., 220.
13 Smither vs. Trio County (Tex.

Civ. App., 1899), 50 S. W.
Rep., 958.

In England, cutting down trees always constitutes waste, but in this country it may improve the value of the property. On this point the court said, in King vs. Miller: 1 “While, in its essential elements, waste is the same in this country and in England, being a spoil or destruction in houses, trees, and the like, to the permanent injury of the inheritance, yet, in respect to acts which constitute waste, the rule that governs in a new and opening land, covered largely with primeval growth, must be very different. Where the proportions of arable and woodland are adjusted to give the greatest value to the farm in its present condition, a conversion of one kind into another may

be in itself a waste committed, while here the clearing of the forest growths, and fitting the virgin soil which it covers for cultivation, is ordinarily an improvement most valuable to the property, and is not, nor can it be, injurious to the succeeding estate in fee."

The right to take of wood for estories or firewood is recognized even in England.'

Opened mines may be worked by the tenant, but it is waste to open new mines 18 or quarries.''

The destruction of buildings is waste, 20 though the tenant intends to replace such buildings with others as good or even better. The reason for this rule is stated in Smyth vs. Carter, 21 as follows: "I entertain

17

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14 Johnson vs. Johnson, 2 Hill, Eq.

(S. C.), 277; 29 Am. Dec., 72. 15 99 N. C., 583. 16 3 Coke vs. Littleton, 239; Lee vs.

Akton, 1 Ves. Jr., 78. 17 Coke vs. Littleton, 54b; Moore

Kansas City, etc., R. Co., 117
Mo., 414; United States vs.

Gear, 3 Howard, 120.
19 Cosgruff vs. Dewey, 164 N. Y.,

1; 79 Am, St. Rep., 620; 21

N. Y. App. Dec., 129.
20 United States vs. Bostwick, 94

vs. Rollins, 45 Me., 493; Reed V8. Reed, 16 N. J. Eq., 248;

Neel vs. Neel, 19 Pa., 324. 18 Harlow vs. Lake Superior Iron

Co., 36 Mich., 105; Childs vs.

U. S., 53; McCollough Irvine,

13 Pa. St., 438. 11 18 Bean., 78.

1 22

no doubt that this court will restrain a tenant from pulling down a house and building another which the landlord dislikes. It is not sufficient to show that the house proposed to be built is a better one; and the fact of the defendant's showing that the landlord does not know his own interest, will not affect the judgment of the court in any respect whatever. The landlord has a right to exercise his own judgment and caprice, whether there shall be any change; and if he objects, the court will not allow a tenant to pull down one house and build another in its place.

The repair of one portion of a building does not justify the removal or destruction of another part? and a material alteration of a building will constitute waste. Formerly, the erection of new buildings was waste, but the law on this point is different at the present time. In recent cases it has been held that it was not waste for the tenant for years of a house and lot in the city of New York to erect a livery stable upon the land,28 and that where a tenant for life erected a new smokehouse in place of one gone to decay, from materials obtained on the homestead, it was not waste.27

SECTION 49. Who MAY COMMIT WASTE.

Waste can only be committed by a person rightfully in possession of the property. Under the early common law only tenants of legal estates as distinguished from tenants of conventional estates, were liable for waste.28 But the common law was changed by the Bass vs. Metropolitan West Side 25 Pynchon vs. Stearns, _11 Met. statute of Marlbridge (52 Hen. III, c. 23), which provides that "fermers, during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of anything belonging to the tenements that they have to a ferm, without special license had by writing of covenant, making mention that they may do it; which thing, if they do, and thereof be convict, they shall yield full damage and shall be punished by amerciament grievously.” And by the statute of Gloucester (6 Edw. I, c. 5), it was enacted that "a man from henceforth shall have a writ of waste in the chancery against him that holdeth by law of England, or otherwise for term of life or term of years, or a woman in dower. And he which shall be attainted of waste, shall lose the thing that he has wasted, and moreover, shall recompense thrice so much as the waste shall be taxed at.” In the United States these statutes are either considered a part of the common law, so far as applicable to the different conditions, 29 or they have been expressly enacted in a modified form.99, 31

Elevated R. Co., 82 Fed. Rep., (Mass.), 304; 45 Am. Dec., 207. 857; 53 U. S. App., 543.

28 Winship vs. Pitts, 3 Paige (N. * Bonnett vs. Saddler, 14 Ves, Jr.,

Y.), 259. 526; Smyth vs. Carter, 18 27 Sarles vs. Sarles, 3 Sandf., Ch. Beav., 78.

(N. Y.), 607. * Ward's Case, 4 Loon, 241.

28 4 Coke's Inst., 299; London vs. 773a; Parker vs. Chambras, 12 der this rule only three classes

Waste can never be committed by mere trespass

In Lander vs. Hall,32 the Court held that at common law the relation of tendency was what distinguished waste from trespass to the realty; and that the statute of Wisconsin, which gives to the holder of a certificate of the sale of lands for taxes a right to recover damages from any one who commits waste on said lands, does not apply to cases of waste committed by a mere trespasser, but applies only to cases where Webb, 1 P. Wms., 527. Un

Ga., 235. of tenants were liable for waste. 30 Newbold vs. Brown, 44 N. J. L., A guardian in Chivalry, a

266. tenant in dower, and a tenant a See American and English Ency. by the courtesy.

of Law, Vol. XXX, p. 259. 29 Parrott vs. Barney Deady (U. 82 69 Wis., 326.

S.), 405; 18 Fed. Cas. No. 10,

ers.

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