they were timber and belonged to the inheritance, and therefore could not be taken by the tenant for life (a). Windfalls are the property of the lord; for the timber while standing is part of the inheritance: but whenever it is severed, either by the act of God, as by a tempest, or by a trespasser and by wrong, it belongs to him who has the first vested estate of inheritance, whether in fee or in tail, who may bring trover for it (b). So, where there are intermediate contingent estates of inheritance, and the timber is cut down by combinations between the tenant for life and the person who has the next vested estate of inheritance; or if the tenant for life himself has such estate and fells timber; in these cases, the Court of Chancery will order it to be preserved for him who has the first contingent estate of inheritance under the settlement. A tenant for life without impeachment of waste has as full power to cut down trees and open new mines, for his own use, as if he had an estate of inheritance; and is in the same manner entitled to the timber, if severed by others (c). This, privilege, given by words, without impeachment of waste, is annexed to the privity of estate, so that if the person to whom that privilege is given change his estate, he loses the privilege. It has been held that the intent of this clause is only to enable the tenant to cut down timber and open new mines, and that it does not extend to allow destructive or malicious waste; such as cutting down timber which serves for shelter or ornament of the estate (d). If the tenant suffer the houses to be wasted, and then fell down timber to repair the same, this is a double waste (e). Digging for gravel, lime, clay, brick-earth, stone, or the like, or for mines of metal, coal, or the like, hidden in the earth, and not open when the tenant came in, is waste (e); but the tenant may dig for gravel or clay for the reparation of the house, (though no pit were open at the time of the lease,) as well as he may take convenient timber trees (f). But if the pits or mines were open before, it is no waste in the tenant continuing to dig them for his own use; for it is now become the mere annual profit of the land. Though mines be open at the time, one cannot take timber to use in them (e). It is waste to suffer a wall of the sea to be in decay, so as by the flowing and reflowing of the sea the meadow or marsh is surrounded, whereby the same becomes unprofitable; but if it be surrounded. suddenly by the rage or violence of the sea, as by tempest, without any default of the tenant, it is no waste punishable. So it is, if the tenant repair not the banks or walls against rivers, or other waters, (a) Countess of Cumberland's Case. Moore. 813. (d) Co. Lit. 220. n. l. 3 Wood. 399. (f) 1 Wood's Inst. b. 2. c, 5, s. 4. Bl. Com, (6) Bewick v. Whitfield. 3 P. Wms. 266-8. (6) Pyne v. Dor. 2 T. R. 54. 282. whereby the meadows or marshes be surrounded, and become rushy and unprofitable (a). It is a general principle, that the law will not allow that to be waste, which is not in any way prejudicial to the inheritance; nevertheless it has been held, that a tenant or lessee cannot change the nature of the thing demised.-Therefore if the tenant convert arable land into wood, or è converso, or meadow into arable, it is waste; for it changes not only the course of husbandry, but the proof of his evidence. The same rule is to be observed with regard to converting one species of edifice into another, even though it be thereby improved in its value (a). Thus if a lessee convert a corn-mill into a fullingmill, it is waste, though the conversion be to the lessor's advantage. So, the conversion of a brewhouse of 120l. per annum into other houses let for 200l. per annum is waste; because of the alteration of the nature of the thing, and of the evidence (b). So, if the tenant pull down a malt-mill and build a corn-mill it is waste.-Waste in the house is waste in the curtilage, and waste in the hall is waste in the whole house (c). An injunction was granted against proceeding with alterations in a house under an agreement for a lease, upon circumstances that would probably prevent a specific performance, viz. surprise, the effect of fraudulent misrepresentation and concealment, and the particular nature of the alteration, for the conversion of a private house to the purpose of a coachmaker's business, wholly changing the nature of the subject (d). A tenant was restrained from cutting turf for sale, his lease giving a right of estovers only, notwithstanding an uninterrupted practice of eighty years (e). A tenant from year to year having received notice to quit, a motion was made for an injunction to restrain him from taking away the crops, &c. contrary to the usual course of husbandry, and from cutting and damaging the hedge-rows, &c. The Court observed, that though there was no case of this sort upon a tenancy from year to year, yet the principle applies equally to such a tenancy as to a lease for a longer term. The Judges have uniformly said in modern times that a tenant from year to year must treat the farm in a husband-like manner, according to the custom of the country; and the Court must give its aid equally in that case, with the qualification that he is not to remove any thing except according to the custom of the country (ƒ). Certain parts of a machine had been put up by the tenant during (a) City of London v. Greyme. Cro. Jac. 182. (b) Cole v. Green. 1 Lev. 309. (c) Cole v. Fourth. 1 Mod. 95. (d) Bonnett v. Sadler. 14 Ves. 526. (e) Lord Courtown v. Ward. 1 Sch. and Lef. Rep. 8. (f) Onslow v. ➖➖➖➖➖➖ 16 Ves. 173. his term, and were capable of being removed without either injuring the other parts of the machine or the building, and had been usually valued between the outgoing and incoming tenant: held, that these were the goods and chattels of the outgoing tenant, for which he might maintain trover (a). [See also with respect to timber the following Section.] SECTION II. Of Common of Estovers; wherein of Wood. Common of stovers, or estouviers, that is necessaries, or materials, (from estoffer, to furnish,) is a liberty of taking necessary wood for the use and furniture of a house or farm from off another's estate. Estovers are three kinds in law, and are incident to the estate of every tenant, whether for life or years; but not at will, for such estate is too mean (b). The Saxon word bote (b), which signifies allowance or compensation, is used by us as synonymous to the French estouvers, and therefore house-bote is a sufficient allowance of wood to build or repair the house, or to burn in it, which latter is sometimes called fire-bote; plough-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandry, as ploughs, carts, harrows, rakes, forks, &c. (c); and hay-bote or hedge-bote is wood for repairing hedges or fences, as pales, stiles, and gates, to secure inclosures. These botes or estovers must be reasonable ones; and such any tenant or lessee may take off the land let or demised to him, without waiting for any leave, assignment or appointment of the lessor, unless he be restrained by special covenant to the contrary, which is usually the case (d): for house-bote, hay-bote, and fire-bote, do appertain unto a termor of common right, and he may take wood for the same: but if the tenant take more house-bote than needful, he may be punished for waste (e). Common of estovers cannot be appendant to land, unless it be by prescription: but to a house to be spent there. Therefore, though it be said, that a custom that if the house fall, the materials shall be the tenant's, would not be good; yet when a house, having estovers appendant or appurtenant is blown down by wind, if the owner rebuild it in the same place and manner as before, his estovers shall continue. So, if he alter the rooms and chambers, without making new chimnies; but if he erect any new chimnies, he will not be allowed to spend any estovers in such new chimnies (f). But a prescription to have estovers not only for repairing but building new houses on the (a) Davis v. Jones. 2 B. & A. 165. (e) Terms de Ley. (f) Co. Lit. 121. b. F. N. B. 180. C. b. Luttrel's Case. 4 Rep. 86-7. Brown and Tucker's Case. 4 Leon. 241. land is good; yet it seems, if a man have common of estovers by grant, he cannot build new houses to have common of estovers for those houses (a). It may not here be superfluous to explain the meaning of the terms appendant and appurtenant (b).—A thing appendant is that which beyond memory has belonged to another thing more worthy, which it agrees with in its nature and quality. Therefore a common of turbary may be appendant to a house (c); for a thing incorporeal may be appendant or appurtenant to a thing incorporeal; but a thing corporeal cannot be appendant to a thing corporeal, as land cannot be appendant to land and common appendant must be by prescription, for it cannot begin at this day (d). A thing appurtenant is that which commences at this day; as if a man at this day grant to one common of estovers, or of turbary, in fee-simple, to burn in his manor; and if he make a feoffment of the manor the common shall pass to the feoffee (e). Common appurtenant therefore is claimable by an existing grant; as well as by prescription: which always implies a grant; and a right of common by prescription may be regulated by custom (ƒ). The lord may have the land of his tenant common appendant to his own demesnes: and occupiers of land may, by custom, claim a right in alieno solo (g); though inhabitants cannot, for inhabitancy is too vague a description, and extends to many others, besides the actual occupiers of houses or land (b). If a man have common of estovers in the woods of another, and he who is tenant and owner of the wood cut down all the wood, he who ought to have the estovers shall not have an action of waste, but shall have assize of his estovers (i). Trespass also would lie and be a better remedy (k). If the tenant who hath common of estovers shall use them to any other purpose than he ought, he that owns the wood may bring trespass against him; as where one grant twenty loads of wood to be taken yearly in such a wood, ten loads to burn, and ten to repair pales; here he may cut and take the wood for the pales, though they need no amending, but then he must keep it for that use (1). So, where two elms were cut down for the purpose of repairs, one of which only was used, it was said that although that tree which was not employed [and which had been felled five years] was more than sufficient to repair the house; yet seeing that the tenant cut it down for that purpose, and peradventure did not know what would serve for that purpose, it was not any forfeiture; for it had been judged, (a) Countess of Arundel v. Steere. Cro. Jac. 25. F. N. B. 180. H. (b) Co. Lit. 121. b. (d) Co. Lit. 121. b. (e) Sacheverill v. Porter. Cro. Car. 482. (f) Follet v. Troake. 2 Ld. Raym. 1186. (h) Bean v. Bloom. 2 Bl. R. 926-8. that where one cut down wood to make hedges, and used the greater part thereof in hedging, yet for the rest that was cut down for that purpose, no tithes shall be paid (a). Though the tenant may cut down and take sufficient wood to repair walls, pales, fences, hedges, &c. as he found them, yet he may not do so to make new ones (b). The tenant may cut down dead wood; and it is not waste to fell seasonable wood which is used to be felled every twenty years, or within that time (c); but oaks cannot be said to be seasonable wood, which are passed the age of twenty years; but by a custom in any place where is plenty of wood (timber), oaks under twenty years may be seasonable wood; and such custom may be alleged in the wood itself (d). A termor may cut the underwood growing under the great woods. and tall woods (e): but if there be not any tall wood, then he cannot cut the underwood (d); for where waste was brought for topping and lopping twenty ashes and twenty elms, on demurrer it was adjudged for the plaintiff. It has however, notwithstanding, been held to be a good custom, that copyholders in fee shall have the loppings of pollengers, and the lord cannot, in such case, cut the trees down, for that would deprive the copyholder of the future loppings. [Pollengers or pollards are such trees as have been usually cropped, therefore distinguished from timber-trees (f).] And it has been resolved that by the common law, a copyholder may cut off the under boughs, for such lopping cannot cause any waste (g). Though the termor hath of common right oaks, elm, ash, &c. for repair of the house, and underwood, &c. for inclosures, and firing, yet it is said he cannot cut either oaks or ash for fire-wood; but the cutting at the age of seven years is not waste (1⁄2). If a man cut wood to burn, where he hath sufficient dead wood, it is waste (c). A rector may cut down timber for the repairs of the parsonagehouse, or of the chancel, but not for any common purpose; and if it be the custom of the country, he may cut down underwood for any purpose, but if he grub it up it is waste. He may cut down timber likewise for repairing any old pews that belong to the rectory; and he is also entitled to botes for repairing barns and outhouses belonging to the parsonage (i). And a parson or prebendary shall have a writ of waste upon their lease (k). (a) East v. Harding. Cro. Eliz. 498-9. (6) 1 Inst. 53. Wood's Inst. 525. (c) F. N. B. 59. M. (d) Ibid. D. () F. N. B. 60, E. (f) Soby v. Molins. Plowd. 469. (g) Dawbridge v. Cocks. Cro. Eliz. 361. (b) F. N. B. 59. N. 1. (i) Strachy v. Francis. 2 Atk. 217. (4) F. N. B. 60. K. |