or services out of the same be, at the time such title shall first descend or accrue, either 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge or in execution upon conviction of a criminal offense, for a term less than for life. The time during which such disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action or the making of such entry or defense; but such action may be commenced or entry or defense made, after the time limited, and within five years after the disability shall cease or the death of the person entitled, who shall die under such disability; but such action shall not be commenced or entry or defense made after that period."-See also chapter on Statute of Limitations. Suspension of power of alienation.--See sect. 1 of Wills. SECTION II. WASTE. "Waste is any act or omission of duty by a tenant of land which does a lasting injury to the freehold, tends to the permanent loss of the owner of the fee, or to destroy or lessen the value of the inheritance, or to destroy the identity of the property or impair the evidence of title." Waste implies a physical destruction, alteration or removal. There must be a permanent injury. Waste is either permissive or involuntary, as where a tenant negligently omits to do that which is necessary to preserve the estate, or commissive or voluntary, that is, where the tenant does acts which result in permanent injury to the inheritance. Our statutes provide: Who liable for waste.-"If any guardian or tenant by the curtesy, tenant in dower, or for a term of life or years, or the assigns of any such tenant shall commit or suffer any waste during their several terms or estates of the houses, gardens, orchards, lands or woods, or of any other thing belonging to the tenements so held, without having a lawful license in writing so to do, they shall respectively be liable to an action for such waste." "If one joint tenant or tenant in common shall commit waste of the estate held in joint ten ancy or in common, he shall be subject to an action for such waste at the suit of his co-tenant or co-tenants." Who may maintain the action.-"An heir, whether of full age or not, after coming into possession of the inheritance, may maintain an action for waste done in the time of his ancestor as well as in his own time, unless a recovery shall have been had therefor by the executor or administrator of such ancestor." "Such action may be brought by the person having the next immediate estate in fee or for life or years in the premises in question or by any person who has the remainder or reversion in fee or for life after an intervening estate for life or years and each of them shall recover damages according to his estate in the premises." Double damages. "If the plaintiff in such action prevail therein, he shall have judgment for double the amount of damages found by the jury." An action of waste also lies against a person removing timber from lands sold for non-payment of taxes, while such taxes remain unpaid, or where timber is removed from public lands without license. Purchasers at tax sales or judicial sales may also maintain an action for waste committed during the period of redemption; but in such cases it is not waste to use the premises in like manner and for like purposes as they were used previous to the sale, doing no permanent injury to the freehold. Instances of waste.-Where a tenant erected a chimney, cutting a hole through the roof, he was held liable for waste, this being a change in the identity, nature and character of the building, and this is so although the property is enhanced by the alteration. One removing a building from lands subject to a mortgage is liable for waste to the mortgagee. It is waste for a life tenant to neglect to pay taxes during his tenancy. It is not waste for a tenant to cut down wood or timber, so as to fit the land for cultivation or pasture, provided this does not damage or diminish the value of the inheritance and is conformable to the rules of good husbandry; and this is so even where the wood or timber so cut is sold, used or consumed off the premises. "The real question is whether in view of the character and condition of the land, the amount of plow, pasture and wood land and all the circumstances, it was good husbandry to make pasture of the land where the timber in question was cut." Where a house stood on an embankment twenty feet above the street, in a city, thereby being practically useless, it was not waste to tear same down and grade the land level with the street, thereby increasing its value. In rendering the decision our supreme court said: "In the absence of any contract, express or implied, to use the property for a specified purpose, or to return it in the same condition in which it was received, a radical and permanent change of surrounding conditions, such as is presented in the case before us, must always be an important, and sometimes a controlling, consideration upon the question whether a physical change in the use or the buildings constitutes waste. What may be waste in one part of the country, may not be in another; the usages and customs of each community entering largely into the settlement of the question. It is not waste for a tenant to cut timber to repair buildings and fences, nor for fuel used by him, but ornamental trees or shrubs cannot be taken for this purpose. A tenant is liable for waste committed by a stranger with his consent or permission, but is not liable for damage done by the act of God, the public enemy or by law. A tenant need not rebuild premises destroyed by fire without his fault, unless he has contracted to do so. — See chapter on Landlord and Tenant. SECTION III. EASEMENTS. Defined. -An easement is a permanent interest in another's land without profit, with a right to enjoy such interest fully and without obstruction. A technical easement can only exist in connection with two estates. The estate enjoying the easement is called the dominant estate; the estate upon which the easement is imposed is called the servient estate. An easement is a permanent interest in land and must be founded on a writing or prescription; it cannot be created by parol. It must be distinguished from a license, which is a bare authority to do a certain act, or series of acts upon the land of another, without acquiring any estate therein. A license is a personal right and is not assignable. It is gone if the owner of the land who gives the license revokes it or transfers his title to another, or if either party dies. Having entered under a license, such right can never ripen into a title by prescription, so long as the use is exercised under the license and not adverse. The effect of a license is to justify all acts done under it and by virtue of it while it continues unrevoked, which acts would otherwise be wrongful. [See, also, the chapter on the Statute of Frauds.] How easements are acquired.-Easements can only be created by deed in writing or by prescription, which presupposes a grant. The time required at common law to gain an easement by prescription was twenty years. Our statutes require the same length of time when the property is not held under an instrument in writing or the judgment of a competent court, but ten years is sufficient if held under claim of title under some written instrument, exclusive of any other right, as being a conveyance thereof, or by virtue of the judgment of a court of competent jurisdiction. But in order to get a title by adverse possession or prescription, the posession must have been adverse. (See Adverse Possession, this chapter.) Thus, where the owner of land by means of a ditch drained such land of surface and other water onto or through the land of another, openly, continuously, adversely, under claim of right, which was acquiesced in by such owner, the former acquired an easement in the latter's land for a continuance of such drainage. Kinds of easements.-In every deed of a part of a grantor's land, without express provision on the subject, there is an implied grant or reservation of easements of necessity for the enjoyment of the part conveyed or of the part retained. There need not be an actual physical necessity, but the reservation of such easement rests on the ground of reasonable necessity, as distinguished from mere convenience. Thus, where a person owned a double store having a hall over same, and he conveyed the south half, which had the stairway, to one grantee, reserving the right to use the stairway, and later conveyed the north half to another grantee, the latter was held to have an easement of necessity. The court said: "When one part of an estate is dependent of necessity for enjoyment on some use, in the nature of an easement, in another part, and the owner conveys either part, without express provision on the subject, the authorities all agree that the part so dependent, thence called the 'dominant estate,' carries or reserves with it an easement of such necessary use in the other part, thence called the 'servient estate'.' An easement giving a right of way over the land of another is of common occurrence. The owner of the land which is subject to such an easement, whether a public or private way or road, may make any and all uses of it to which the land can be applied and take all the profits which can be derived from it consistently with the enjoyment of the easement. All rights which are consistent with the reasonable exercise of the easement remain with the grantor. Accordingly, it has been held by our surpreme court that the owner of the easement may not fence in the way, so as to exclude the owner of the fee from using his land in a manner not inconsistent with the easement. The owner of land subject to a right of way may maintain a gate across the way, if such gate is necessary to the reasonable use and enjoyment of his land and does not unreasonably interfere with the use of the way. The fee of the land in the streets and highways of this state is in the abutting owner, the owner on each side owning to the center of the street, subject to the public easement. When a highway is abandoned, the land reverts to the original proprietor or his grantees. Streets can, therefore, not be used for private purposes. Thus, the running of a railroad or inter-urban street car, or the stringing of telephone lines along a public highway or street constitutes an additional servitude for which abutting owners are entitled to compensation. This question sometimes arises in farming communities when strangers claim the right to grass, crops, etc. growing in the highway as against the abutting owners. In all such cases the abutting owners have the superior right. Where the owner of the servient estate obstructs the right of way, the party having the easement may cross upon the adjoining land, doing no unnecessary damage. The way must be used as acquired. Thus, a foot-path cannot be used for wagons, etc. Public highways are usually acquired by condemnation or dedication. A dedication takes place when land is set apart and surrenderd to the public for use as a highway, and an acceptance, either by a formal opening thereof by the municipal authorities, or a use of the land in conformity with the dedication. In England, an easement in light and air coming from over the lands of an adjoining owner may be acquired by prescription, but such is not the law of Wisconsin, and the |