which is either voluntary or permissive. tion in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail (k) (27). Waste (28) is either voluntary, which is a crime of commission, as by pulling down a house; or it is permissive (29), which is a matter of omission only, as by suffering it to fall As to what con- for want of necessary reparations. Whatever does a lasting damage to the freehold or inheritance is waste (1). Therefore removing wainscot, floors, or other things once fixed to the stitutes waste. (k) Co. Litt. 53. (27) A tenant for life has no property in timber or underwood till his estate comes into possession, and therefore cannot have an account in equity, or maintain an action of trover at law, for what has been cut wrongfully by a preceding tenant, notwithstanding his own estate, being without impeachment of waste, would have entitled him to cut such timber or underwood, and put the produce into his own pocket: (see ante, p. 125, n.:) the owner of the first estate of inheritance, at the time when the timber was cut, is the party entitled to redress in such case. (Pigot v. Bullock, 1 Ves. junr. 484; Whitfield v. Bewit, 2 P. Wms. 241.) However, a tenant for life in remainder, though he cannot establish any property in timber actually severed during a prior estate, may bring a bill to restrain waste; and he may sustain such a suit, although he has not the immediate remainder, and notwithstanding his estate, whenever it comes into possession, will be subject to impeachment for waste; for, though he will have no right to the timber, he will have an interest in the mast and shade of the trees. (See post, note (35).) So, trustees to preserve contingent remainders may maintain a suit for a similar injunction, even though the contingent remainder-men have not come into esse. (Perrot v. Perrot, 3 Atk. 95; Stansfield v. Habergham, 10 Ves. 281; Garth v. Cot (1) Hetl. 35. ton, 3 Atk. 754.) It is true, that, in cases of legal waste, if there be no person capable of maintaining an action, before the party who committed the waste dies, the wrong is then without a remedy at common law; but, where the question is brought within the cognizance of equity, those courts say, unauthorised waste shall not be committed with impunity; and the produce of the tortious act shall be laid up for the benefit of the contingent remainder-man. (Marquis of Lansdowne v. Marchioness Dowager of Lansdowne, 1 Mad. 140; Bishop of Winchester v. Knight, 1 P. Wms. 407; Anonym. 1 Ves. junr. 93.) (28) See Vol. III. p. 223. (29) Where an estate is given for life, without impeachment of waste other than wilful waste, this will excuse permissive waste; (Lansdowne v. Lansdowne, 1 Jac. & Walk. 523;) if the tenant for life, under such a limitation, cut timber, Sir Wm. Grant, M. R., seems to have felt it questionable whether the tenant could appropriate to himself the principal money produced by the sale of such timber, though he held it clear he was entitled to the interest thereof for his life: (Wickham v. Wickham, 19 Ves. 423; S. C. Cooper, 290 :) but, from the case of Williams v. Williams, (12 East, 220,) it should appear that the tenant for life would have the entire property in timber so cut down. freehold of a house, is waste(m)(30). If a house be destroyed by tempest, lightning, or the like, which is the act of Providence, it is no waste: but otherwise, if the house be burnt by the carelessness or negligence of the lessee: though now by the statute 6 Ann. c. 31 (31), no action will lie against a tenant for an accident of this kind (32). Waste may also (m) 4 Rep. 54. (30) Mr. Christian observes, "between the heir and executor there has not been any relaxation of the ancient law with regard to fixtures, for there is no reason why the one should be more favoured than the other, or the courts would be disposed to assist the heir, and to prevent the inheritance from being dismembered and disfigured. 1 Hen. Bl. 258." [See Squier v. Mayer, 2 Freem. 249, and the notes to that case in the last edition. See also Wynne v. Ingleby, 2 Dowl. & Ryl. 248, and Ex parte Quincy, 1 Atk. 477.-ED.] "But the courts are more favourable to an executor of a tenant for life against a person in remainder, and therefore they have held that his executor shall have the benefit of a fireengine erected by a tenant for life. 3 Atk. 13. "With regard to a tenant for years, what fixtures erected by himself he may afterwards remove before the expiration of his lease, is a question of great importance. It is fully established he may take down useful and necessary erections for the benefit of his trade or manufacture, and which enable him to carry it on with more advantage. "A tenant for years may also carry away ornamental marble chimneypieces, wainscot fixed only by screws, and such like. But erections for the purposes of farming and agriculture do not come under the exception with respect to trade, and cannot be taken down again. See Elwes v. Maw, 3 East, 52." [In the case cited, it was said to have been decided, that a cidermill, erected by a tenant for the purposes of trade, might be removed by him. But, as between heir and executor, it seems that all the appendages of a mill, whether it be a cider-mill or a corn-mill, will pass to the heir, and not to the executor. (Farrant v. Thompson, 2 Dowl. & Ryl. 3.)-ED.] "Where a tenant for years has a right to remove erections and fixtures during his lease, and omits doing it, he is a trespasser afterwards for going upon the land, but not a trespasser de bonis asportatis. (2 East, 88.)" [Ex parte Quincy, 1 Atk. 477.] (31) Repealed by 14 Geo. III. c. 78, but the 86th section of the repealing statute declares, that no action shall lie against the person on whose premises a fire accidentally begins. (32) A tenant who has bound himself, in general terms, to leave the premises in good repair, must rebuild if a casualty by fire occurs: (Pym v. Blackburn, 3 Ves. 38; Bullock v. Dommett, 6 T. R. 651:) and, although his covenant to repair contains an exception in case of damage by fire, the tenant cannot, by force of this exception, (should such an accident happen,) protect himself, either at law or in equity, against the effect of a separate independent covenant to pay the rent during the term. (Balfour v. Weston, 1 T. R. 312; Doe v. Sandham, 1 T. R. 710; Hare v. Groves, 3 Anstr. 693, 699; Holtzapfell v. Baker, 18 Ves. 119.) And where a lease contains no exception in respect of accidents by fire, either in the covenant for pay be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance (n). Timber also is part of the inheritance (o)(33). Such are oak, ash, and elm, in all places; and in some particular countries, by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste (p). But underwood the tenant may cut [ *282 ] down at any seasonable time that he pleases (q); and may take sufficient estovers (34) of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions (r). The conversion of land from one species to another is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pasture, into woodland; or to turn arable or woodland into meadow or pasture, are all of them waste (s). For, as Sir Edward Coke observes (t), it not only changes the course of husbandry, but the evidence of the estate; when such a close, which is conveyed and described as pasture, is found to be arable and e converso. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value (u). To open the land to search for mines of metal, coal, &c. is waste; for that is a detriment to the inheritance (v) (35); but, if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use(w); for it (w) Hob. 295. ought to be liable to have that taken away which cannot be replaced, merely because he may possibly recover (what others may deem) an equivalent in money. (Berkeley v. Brymer, 9 Ves. 356.) But, although Lord Nottingham, (in Tonson v. Walker, 3 Swanst. 679,) intimated that a probability of right might authorise an application for an injunction against waste, this was only an obiter dictum : it is a general rule that, in order to sustain a motion in restraint of waste, the party making the application must set forth and verify an express and positive title in himself, (or in those whose interests he has to support; see ante, note (27) ;) an hypothetical or disputed title will not do. (Davis v. Leo, 6 Ves. 787; Whiteleggv. Blacklegg, 1 Brown, 57.) A plaintiff who, after failing in ejectment, comes to equity to restrain waste, stating that the defendant claims by adverse title, it has been said, states himself out of court. (Pillsworth v. Hopton, 6 Ves. 51.) This dictum may perhaps admit occasional qualification; (see Norway v. Rowe, 19 Ves. 154; Kinder v. Jones, 17 Ves. 110; Hodgson v. Dean, 2 Sim. & Stu 224;) but, clearly, where the title is disputed as between a devisee and the heir-at-law, neither an injunction to stay waste, nor a receiver, will be granted on the application of either party. (Jones v. Jones, 3 Meriv. 174; Smith v. Collyer, 8 Ves. 90.) It is not, however, to be understood, that a plaintiff, who, though he has no legal title, has concluded a contract authorising him to call upon the court to clothe his possession with the legal title, cannot sustain a motion in restraint of waste; provided the defendant's answer admits such contract. (Norway v. Rowe, 19 Ves. 155.) In general cases, for the purpose of dissolving an injunction granted ex parte, the established practice is to give credit to the answer when it comes in, if it denies all the circumstances upon which the equity of the plaintiff's application rests, and not to allow affidavits to be read in contradiction to such answer: (Clapham v. White, 8 Ves. 36:) but, an exception to this rule is made in cases of alleged irremediable waste; (Potter v. Chapman, Ambl. 99;) and in cases analogous to waste; (Peacock v. Peacock, 16 Ves. 51; Gibbs v. Cole, 3 P. Wms. 254;) yet, even in such cases, the plaintiff's affidavits must not go to the question of title, but be confined to the question of fact as to waste done or threatened. (Morphett v. Jones, 19 Ves. 351; Norway v. Rowe, 19 Ves. 153; Countess of Strathmore v. Bowes, 1 Cox, 264.) And as to matters which the plaintiff was acquainted with when he filed his bill, he ought at that time to have stated them upon affidavit, in order to give the defendant an opportunity of explaining or denying them by his answer; (Lawson v. Morgan, 1 Price, 306;) though of course, acts of waste done subsequently to the filing of the bill would be entitled to a distinct consideration: (Smythe v. Smythe, 1 Swanst. 253 :) and where allegations in an injunction bill have been neither admitted nor denied in the answer, there can be no surprise on the defendant; and it should seem, that affidavits in support of those allegations may be read, though they were not filed till after the answer was put in. (Morgan v. Goode, 3 Meriv. 11; Jefferies v. Smith, 1 Jac. & Walk. 300; Barrett v. Tickell, Jacob's Rep. 155; Taggart v. Hewlett, 1 Meriv. 499.) Who are liable for committing waste. is now become the mere annual profit of the land. These three are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value of the inheritance, is considered by the law as waste. Let us next see, who are liable to be punished for committing waste. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vassals or feudatories; "si vasallus feudum dissipa Neither vague apprehension of an intention to commit waste; nor information given of such intention by a third person, who merely states his belief, but not the grounds of his belief, will sustain an application for an injunction. The affidavits should go (not necessarily, indeed, to positive acts, but, at least,) to explicit threats. A court of equity never grants an injunction on the notion that it will do no harm to the defendant, if he does not intend to commit the act in question; an injunction will not issue unless some positive reasons are shown to call for it. (Hannay v. M'Entire, 11 Ves. 54; Coffin v. Coffin, Jacob's Rep. 72.) It was formerly held, that an injunction ought not to go against a person who was a mere stranger, and who consequently might, by summary legal process, be turned out of possession of premises which he was injuring. Such a person, it was said, was a trespasser; but, there not being any privity of estate, waste, strictly speaking, could not be alleged against him. (Mortimer v. Cottrell, 2 Cox, 205.) But this technical rule is overturned; it is now established by numerous precedents, that, wherever a defendant is taking the substance of a plaintiff's inheritance, or committing or threatening irremediable mischief, equity ought to grant an injunction; although the acts are such as, in correct technical denomination, ought rather to be termed trespasses than waste. (Mitchell v. Dors, 6 Ves. 147; Hanson v. Gardiner, 7 Ves. 309; Twort v. Twort, 16 Ves. 130; Earl Cowper v. Baker, 17 Ves. 128; Thomas v. Oakley, 18 Ves. 186.) Any collusion, by which the legal remedies against waste may be evaded, will give to courts of equity a jurisdiction over such cases, often beyond, and even contrary to, the rules of law : (Garth v. Cotton, 3 Atk. 755 :) thus, trustees to preserve contingent remainders will be prohibited from joining with the tenant for life in the destruction of that estate, for the purpose of bringing forward a remainder, and thereby enabling him to gain a property in timber, so as to defeat contingent remainder-men; and wherever there is an executory devise over, after an estate for life subject to impeachment of waste, equity will not permit timber to be cut. (Stansfield v. Habergham, 10 Ves. 278; Oxenden v. Lord Compton, 2 Ves. jun. 71.) So though the property of timber severed during the estate of a strict tenant for life vests in the first owner of the inheritance; (see ante, note to p. 281;) yet, where a party having the reversion in fee, is, by settlement, made tenant for life, if he, in fraud of that settlement, cuts timber, equity will take care that the property shall be restored to, and carried throughout all the uses of, the settlement. (Powlett v. Duchess of Bolton, 3 Ves. 377; Williams v. Duke of Bolton, 1 Cox, 73.) |