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case : which only differs from the old one in thisą that, where the assise is brought against the very person only who levied the nuisance, it is said “ quod A. (the wrongdoer) in juste levavit tale nocumentum ;" but, where the lands are aliened to another person, the complaint is against both; "quod A. (the wrongdoer) et B. (the alienee) levaverunt (c)." For every continuation, as was before said, is a fresh nuisance; and therefore the complaint is as well grounded against the alienee who continues it, as against the alienor who first levied it.
3. Before this statute, the party injured, upon any alienation of the land wherein the nuisance was set up, was driven to his quod permittat prosternere ;49which is in the nature of a writ of right, an) therefore subject to greater delays (d). This is a writ commanding the defendant to permit the plaintiff to abate, quod permittat prosternere, the nuisance complained of; *and unless he so permits, to summon him to appear [*222] in court, and shew cause why he will not (e). And this writ lies as well for the alienee of the party first injured, as against the alienee of the party first injuring; as hath been determined by all the judges (f). And the plaintiff shall have judgment herein to abate the nuisance, and to recover damages against the defendant.
Both these actions, of assise of nuisance, and of quod permittat prosternere, are now out of use, and have given way to the action on the case ; in which, as was before observed, no judgment can be had to abate the nuisance, but only to recover damages. Yet, as therein it is not necessary that the freehold should be in the plaintiff and defendant respectively, as it must be in these real actions, but it is maintainable by one that hath possession only, against another that hath like possession, the process is there. fore easier and the effect will be much the same, unless a man has a very obstinate as well as an ill-natured neighbour: who had rather continue to pay damages than remove his nuisance. For in such a case, recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant's perverseness, by sending the sheriff with his posse comitatus, or power of the county, to level it (10).
OF WASTE (1). The fourth species of injury, that may be offered to one's real property, is by waste, or destruction in lands and tenements. What shall be called waste was considered at large in a former book (a) (2), as it was a means (c) 9 Rep. 55.
(f) 5 Rep. 100, 101.
(a) See book II. ch. 18.
(d) 2 Inst. 405.
(10) In New-York the common law reme. (1) See in general, Bac. Ab. Waste ; and dy by writ of nuisance is retained ; and it is the very excellent notes in 2 Saunders Rep. provided that the plaintiff may sue in one ac- 251, 259, &c. and id. index. tion the party erecting a nuisance and him to (2) See further, as to what is waste, 2 whom the land has been transferred. (2 R. Saund. Rep. 259. in notes, and Bac. Ab. S. 332, $ 1, &c.) See id. as to the mode of Wasto. proceeding.
(49) See Hov. n. (49) at the and of the Vol. B. III.
of forfeiture, and thereby of transferring the property of real estates. I shall therefore here only beg leave to remind the student, that waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demolishing not the temporary profits only, but the very substance of the thing; thereby rendering it wild and desolate ; which the common law expresses very significantly by the word vastum : and ihat this vastum, or waste, is either voluntary, or permissive ; the one by an actual and designed demolition of the lands, woods, and houses; the other arising from mere negligence, and want of sufficient care in reparations, fences, and the like. So that my only business is at present to shew, to whom this waste is an injury; and of course who is entitled to any, and what, remedy by action.
I. The persons who may be injured by waste, are such as have some interest in the estate wasted ; for if a man be the absolute tenant in fee
simple (3), without any incumbrance or charge on the premises, [*224) he may commit whatever waste his *own indiscretion may prompt
him to, without being impeachable, or accountable for it to any one. And, though his heir is sure to be the sufferer, yet nemo est haeres viventis; no man is certain of succeeding him, as well on account of the uncertainty which shall die first, as also because he has it in his power to constitute what heir he pleases, according to the civil law notion of an haeres natus and an haeres factus : or, in the more accurate phraseology of our English law, he may aliene or devise his estate to whomever he thinks proper, and by such alienation or devise may disinherit his heir at law. Into whose hands soever therefore the estate wasted comes, after a tenant in fee-simple, though the waste is undoubtedly damnum, it is damnum absque injuria.
One species of interest, which is injured by waste, is that of a person who has a right of common in the place wasted; especially if it be common of estovers, or a right of cutting and carrying away wood for housebote, plough-bote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, amounting to no less than a disseisin of his common of estovers, if he chooses so to consider it; for which he has his remedy to recover possession and damages by assise, 50 if entitled to a freehold in such common; but if he has only a chattel interest, then he can only recover damages by an action on the case for this waste and destruc tion of the woods, out of which his estovers were to issue (b).
But the most usual and important interest, that is hurt by this commission of waste, is that of him who hath the remainder or reversion of the inheritance, after a particular estate for life or years in being. Here, if the particular tenant (be it the tenant in dower or by courtesy, who was an
swerable for waste at the common law (c), or the lessee for life or [*225] years, who was first made liable by the statutes of Marlbridge (d)
and of Glocester) (e) (4), if the particular tenant, I say, commits or suffers any waste, it is a manifest injury to him that has the inheritance, as it tends to mangle and dismember it of its most desirable incidents and ornaments, among which timber and houses may justly be reckoned the
(b) F. N. B. 59. 9 Rep. 112. (c) 2 Inst. 299.
(d) 52 Hen. III. c. 23.
(3) A tenant in fee-tail has the same un- the terms of the deed or will under which be controlled and unlimited power in committing claims. waste, as a tenant in fee-simple, unless ex- (4) See 2 R. S. 234, 5 1. pressly restrained from committing waste by
(50) See Hov. n. (50) at the end of the Vol. B. III.
principal. To him therefore in remainder and reversion, to whom the inheritance appertains in expectancy (f), the law hath given an adequate remedy. For he, who hath the remainder for life only, is not entitled to sue for waste; since his interest may never perhaps come into possession, and then he hath suffered no injury (5). Yet a parson, vicar, archdeacon, prebendary, and the like, who are seised in right of their churches of any remainder or reversion, may have an action of waste ; for they, in many cases, have for the benefit of the church and of the successor a fee-simple qualified : and yet, as they are not seised in their own right, the writ of waste shall not say, ad exhaeredationem ipsius, as for other tenants in feesimple; but ad exhaeredationem ecclesiae, in whose right the see-simple is holden (g).
II. The redress for this injury of waste is of two kinds; preventive, and corrective: the former of which is by writ of estrepement, the latter by that of waste.51
1. Estrepement is an old French word, signifying the same as waste or extirpation : and the writ of estrepement lay at the common law, after judge ment obtained in any action real (h), and before possession was delivered by the sheriff; to stop any waste which the vanquished party might be tempted to commit in lands, which were determined to be no longer his. But as in some cases the demandant may be justly apprehensive, that the tenant may make waste or estrepement pending the suit, well knowing the weakness of his title, therefore the statute of Glocester (i) gave another writ of estrepement, pendente placito, commanding the sheriff firmly *to inhibit the tenant ne faciat vastum vel estrepementum pendente [*226] placito dicto indiscusso (k) (6).” And, by virtue of either of these writs the sheriff may resist them that do, or offer to do waste; and, if otherwise he cannot prevent them, he may lawfully imprison the wasters, or make a warrant to others to imprison them: or, if necessity require, he may take the posse comitatus to his assistance. So odious in the sight of the law is waste and destruction (2). In suing out these two writs this difference was formerly observed; that in actions merely possessory, where no damages are recovered, a writ of estrepement might be had at any time pendente lite, nay even at the time of suing out the original writ, or first process : but, in an action where damages were recovered, the demandant could only have a writ of estrepement, if he was apprehensive of waste after verdict had (m); for, with regard to waste done before the verdict was given, it was presumed the jury would consider that in assessing the quantum of damages. But now it seems to be held, by an equitable construction of the statute of Glocester, and in advancement of the remedy,
(k) Registr. 77.
(1) 2 Inst. 329.
Co. Litt. 53. (8) Ibid. 341. (h) 2 Inst, 328. (1) 6 Edw. I. c. 13.
(5) No person is entitled to an action of pended ; and if the first tenant for life dies waste against a tenant for life, but he who during the continuance of such interposed eshas the immediate estate of inheritance in re- tate, the action is gone for ever. Co. Litt. mainder or reversion, expectant upon the 218.b. 2 Sau. d. 252. note 7. See further, as estate for life. If between the estate of the to the persons who may maintain a writ or actenant for life who commits waste, and the tion for waste, id. ibid. subsequent estate of inheritance, there is in. (6) See, as to New York, 2 R. S. 338, 18, terposed an estate of freehold to any person &c. : the court prevents waste by an order on in esse, then, during the continuance of such the defendant, and enforces its order as the interposed estate, the action of waste is sus- court of chancery does.
+ See contra in New York, 1 R. S. 750, $ 8.
that a writ of estrepement, to prevent waste, may be had in every stage, as well of such actions wherein damages are recovered, as of those wherein only possession is had of the lands; for peradventure, saith the law, the tenant may not be of ability to satisfy the demandant his full damages (n). And therefore now, in an action of waste itself, to recover the place wasted and also damages, a writ of estrepement will lie, as well before as after judgment. For the plaintiff cannot recover damages for more waste than is contained in his original complaint ; neither is he at liberty to assign or give in evidence any waste made after the suing out of the writ: it is therefore reasonable that he should have this writ of preventive justice, since he is in his present suit debarred of any farther remedial (o). If a writ of estrepement, forbidding waste, be directed and de
livered to the tenant himself, as it may be, and he afterwards pro[*227] ceeds to commit waste, an action may be carried on upon the *foun
dation of this writ; wherein the only plea of the tenant can be, non fecit vastum contra prohibitionem : and, if upon verdict it be found that he did, the plaintiff may recover costs and damages (p), or the party may proceed to punish the defendant for the contempt : for, if after the writ directed and delivered to the tenant or his servants, they proceed to commit waste, the court will imprison them for this contempt of the writ (9). But not so, if it be directed to the sheriff, for then it is incumbent upon him to prevent the estrepement absolutely, even by raising the posse comitatus, if it can be done no other way.
Besides this preventive redress at common law, the courts of equity, upon bill exhibited therein, complaining of waste and destruction, will grant an injunction in order to stay waste, until the defendant shall have put in his answer, and the court shall thereupon make further order. Which is now become the most usual way of preventing waste. 2. A writ of waste (7)52 is also an action, partly founded
upon the common law, and partly upon the statute of Glocester (r); and may be brought by him who hath the immediate estate of inheritance in reversion or re
(n) F. N. B. 61. (0) 5 Rep. 115. (p) Moor, 100.
(9) Hob. 85.
(7) The action or writ of waste is now very It has also this further advantage over an acseldom brought, and has given way to a much tion of waste, that it may be brought by him, more expeditious and easy remedy, by an ac- in the reversion or remainder for life or years, tion on the case in the nature of waste. The as well as in fee, or in tail; and ihe plaintiff plaintiff derives the same benefit from it, as is entitled to costs in this action, which he from an action of waste in the tenuit, where cannot have in an action of waste. However, the term is expired, and he has got possession this action on the case prevailed at first, with of his estate, and consequently can only re- some difficulty. 3 Lev. 130. 4 Burr, 2141. cover damages for the waste ; and though the But now it is become the usual action, as plaintiff cannot in an action on the case re- well for permissive as voluntary waste. Some cover the place wasted, where the tenant is recent decisions have made it doubtful, whestill in possession, as he may do in an action ther an action on the case, for permissive of waste in the tenet, yet this latter action was waste, can be maintained against any tenant found by experience to be so imperfect and for years. See 1 New. Rep. 290. 4 Taunt. defective a mode of recovering seisin of the 764.7 Taunt. 302. 1 Moore, 100. S. C. See place wasted, that the plaintiff obtained little also 1 Saund. 328. a. n. (i).-Where the lessee or no advantage from it; and therefore, where even covenants not to do waste, the lessor has the demise was by deed, care was taken to his election, to bring either an action on the give the lessor power of re-entry, in case the case, or of covenant against the lessee, for lessee committed any waste or destruction, waste done by him during ihe term. 2 Black. and an action on the case was then found to be Rep. 1111. See further, 2 Saund. 252. and & much better adapted for the recovery of mere Chitty on Pl. 4 ed. 132, 3. damages, than an action of waste in the lenuit. † In New-York, the plaintiff in an action of waste may recover costs. (2 R. S. 334.613, 83)
(52) Sec Hoy. n. (52) at the end of the Val, B. UI.
mainder, against the tenant for life, tenant in dower, tenant by courtesy, or tonant for years. This action is also maintainable in pursuance of statute (s) Westm. 2. by one tenant in common of the inheritance against another, who makes waste in the estate holden in common. The equity of which statute extends to joint-tenants, but not to coparceners; because by the old law coparceners might make partition, whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint-tenants could not ; and therefore the statute gave them this remedy, compelling the defendant either to make partition, and take the place wasted to his own share, or to give security not to commit any farther waste (t). But these tenants in common and joint-tenants are 'not liable to the penalties of the statute of Glocester, which ex- [*228] tends only to such as have life-estates, and do waste to the prejudice of the inheritance. The waste however must be something considerable ; for if it amount only to twelve pence, or some such petty sum, the plaintiff shall not recover in an action of waste : nam de minimis non curat lex (u) (8).
This action of waste is a mixed action ; partly real, so far as it recovers land; and partly personal, so far as it recovers damages. For it is brought for both those purposes ; and, if the waste be proved, the plaintiff shall recover the thing or place wasted, and also treble damages by the statute of Glocester. The writ of waste calls upon the tenant to appear and shew cause why he hath committed waste and destruction in the place named, ad exhaeredationem, to the disinherison, of the plaintiff (w). And if the defendant makes default, or does not appear at the day assigned him, then the sheriff is to take with him a jury of twelve men, and go
person to the place alleged to be wasted, and there inquire of the waste done, and the damages; and make a return or report of the same to the court, upon which report the judgment is founded (x). For the law will not suffer so heavy a judgment, as the forfeiture and treble damages, to be passed upon a mere default, without full assurance that the fact is according as it is stated in the writ. But if the defendant appears to the writ, and afterwards suffers judgment to go against him by default, or upon a nihil ilicit (when he makes no answer, puts in no plea, in defence), this amounts to a confession of the waste; since, having once appeared, he cannot now pretend ignorance of the charge. Now therefore the sheriff shall not go to the place to inquire of the fact, whether any waste has, or has not, been committed; for this is already ascertained by the silent consession of the defendant : but he shall only, as in defaults upon tions, make inquiry of the quantum of damages (y). "The defendant, on the trial, may give in, evidence any thing that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king's enemies, or other inevitable accident (2) (9). But it is no defence
(3) 13 Ed. I. c. 22.
(r) Poph. 24.
(8) See 2 Bos. & Pul. 86. But the doctrine case cited by lord Hale, is that of the countess that the smallness of the damages given by the of Salop, who brought an action on the case jury shall defeat the action, does not extend to against her tenant at will, for negligently other actions. See 1 Dow. Rep. 209. 2 East, keeping his fire, so that the house was burnt'; 154.
and the whole court held that neither action on (9) Action on the case doth not lie for per. the case nor any other action lay; because at missive waste. 5 Rep. 13. Hale MSS. The common law, and before the statute of Gloces