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To recover damages.(b) Formerly an assize of nuisance only lay against the very wrong-doer himself who levied or did the nuisance, and did not lie against any person to whom he had alienated the tenements whereon the nuisance was situated. This was the immediate reason for making that equitable provision in statute Westm. 2, 13 Edw. I. c. 24, for granting a similar writ in casu consimili, where no former precedent was to be found. The statute enacts that "de cetero non recedant querentes a curia domini regis, pro eo quod tenementum transfertur de uno in alium;" and then gives the form of a new writ in this case; which only differs from the old one in this, that where the assize is brought against the very person only who levied the nuisance, it is said "quod A. the [wrong-doer] injuste levavit tale nocumentum;" but, where the lands are aliened to another person, the complaint is against both, "quod A. [the wrong-doer] 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, which is in the nature of a writ of right, and therefore subject to greater delays. (d) This is a writ commanding the defendant to permit the plaintiff to *222] abate, quod permittat prosternere, the nuisance complained of; and, unless he so permits, to summon him to appear in court, and show 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 assize 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 therefore 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.
*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) as it was a means 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
11 Both are now abolished, by the stat. 3 & 4 W. IV. c. 27.-STEWART.
12 It must not be inferred from this that the reversioner cannot maintain this action, for if the nuisance be calculated to affect his reversionary interest, he can maintain an action on the case for damages as well as the person in possession. See Beddingfield vs Onslow, 3 Lev. 209. Leader vs. Moxon, 3 Wils. 461. 3 Black. 924, S. C.-ARCH BOLD.
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 that 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 show 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,' without any encumbrance or charge on the premises, he may commit whatever waste his *own indiscretion may prompt him to, without being impeachable, or [*224 accountable for it to any one. And, though his heir is sure to be the sufferer, yet nemo est hæres 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 hæres natus and an hæres 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 house-bote, plough-bote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby do stroys 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 assize, 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 destruction 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 curtesy, who was answerable for waste at the common law,(c) or the lessee for life or years, *who was first made liable
by the statutes of Marlberge(d) and of Glocester,)(e) if the particular [*225
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 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. Yet a parson, vicar, archdeacon, prebendary, and the like, who are seised in right of their churches of any remainder or reversica,
1 A tenant in fee-tail has the same uncontrolled and unlimited power in committing waste as a tenant in fee-simple.-CHRISTIAN.
'No person is entitled to an action of waste against a tenant for life but he who has the immediate estate of inheritance in remainder or reversion, expectant upon the estate for life. If between the estate of the tenant for life who commits waste, and the subsequent estate of inheritance, there is interposed an estate of freehold to any person in esse, then, during the continuance of such interposed estate, the action of waste is suspended; and if the first tenant for life dies during the continuance of such interposed estate, the action is gone forever. Co. Litt. 218, b. 2 Saund. 252, note 7. See further, as to the persons who may maintain a writ or action for waste, id. ibid.-CHRISTIAN.
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 exhæredationem ipsius, as for other tenants in fee-simple; but ad exhæredationem ecclesiæ, in whose right the fee-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
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 judgment ob tained 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, *226] commanding the sheriff firmly *to inhibit the tenant "ne faciat vastum vel estrepementum pendente placito dicto indiscusso."(k) 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.(1) 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, 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 further remedial.(o) If a writ of estrepement, forbidding waste, be directed and delivered to the tenant himself, as it may be, and he afterwards proceeds to *227] commit waste, an action may be carried on upon the *foundation 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.(g) 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 n 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 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 remainder, against the tenant for life, tenant in dower, tenant by curtesy, or tenant 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 nolden 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 further waste.(t) But these tenants in common and joint-tenants are *not liable to the penalties of the statute of Glocester, which extends only to such [*228 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)3
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 show cause why he hath committed waste and destruction in the place named, ad exhæredationem, 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 in 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
And is now the only one, the writ of estrepement having been abolished. 3 & 4 W. IV. c. 27, s. 36.-STEWART.
The action or writ of waste is now very seldom brought, and has given way to a much more expeditious and easy remedy, by an action on the case in the nature of waste. The plaintiff derives the same benefit from it as from an action of waste in the tenuit, where the term is expired and he has got possession of his estate, and consequently can only recover damages for the waste; and though the plaintiff cannot in an action on the case recover the place wasted, where the tenant is still in possession, as he may do in an action of waste in the tenet, yet this latter action was found by experience to be so imperfect and defective a mode of recovering seisin of the place wasted that the plaintiff obtained little or no advantage from it; and therefore, where the demise was by deed, care was taken to give the lessor power of re-entry in case the lessee committed any waste or destruction; and an action on the case was then found to be much better adapted for the recovery of mere damages than an action of waste in the tenuit. It has also this further advantage over an action of waste, that it may be brought by him in the reversion or remainder for life or years, as well as in fee or in tail; and the plaintiff is entitled to costs in this action, which he cannot have in an action of waste. However, this action on the case prevailed at first with some difficulty. 3 Lev. 130. 4 Burr. 2141. But now it is become the usual action as well for permissive as voluntary waste. Some recent decisions have made it doubtful whether an action on the case for permissive waste can be maintained against any tenant for years. See 1 New Rep. 290. 4 Taunt. 764. 7 Taunt. 302. 1 Moore, 100, Š. C. See also 1 Saund. 323, a., n. (i.) Where the lessee even covenants not to do waste, the lessor has his election to bring either an action on the case, or of covenant against the lessee, for waste done by him during the term. 2 Black. Rep. 1111. See, further, 2 Saund. 252, and 1 Chitty on Pl. 4th ed. 132, 133.-CHITTY.
'See 2 Bos. & Pul. 86. But the doctrine that the smallness of the damages given by the jury shall defeat the action does not extend to other actions See 1 Dowl. Rep. 209. 2 East, 154.-CHITTY.
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 dicit, (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 confession of the defendant; but he shall only, as in defaults upon other actions, make inquiry of the quantum of *damages. (y) *229] 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.(z) But it is no defence to say that a stranger did the waste, for against him the plaintiff hath no remedy; though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act. (a)
When the waste and damages are thus ascertained, either by confession, verdict, or inquiry of the sheriff, judgment is given in pursuance of the statute of Glocester, c. 5, that the plaintiff shall recover the place wasted,' for which he has immediately a writ of seisin, provided the particular estate be still subsisting, (for, if it be expired, there can be no forfeiture of the land,) and also that the plaintiff shall recover treble the damages assessed by the jury, which he must obtain in the same manner as all other damages, in actions personal and mixed, are obtained, whether the particular estate be expired, or still in being.
(*) Poph. 24.
(v) Cro. Eliz. 18, 290.
(*) Co. Litt. 53.
(4) Law of Nisi Prius, 112.
Action on the case doth not lie for permissive waste. 5 Rep. 13. Hale MSS. The case cited by lord Hale is that of the countess of Salop, who brought an action on the case against her tenant at will for negligently keeping his fire so that the house was burned; and the whole court held that neither action on the case nor any other action lay, because at common law, and before the statute of Glocester, action did not lie for waste against tenant for life or years, or any other tenant coming in by agreement of parties, and tenant at will is not within the statute. But if tenant at will stipulates with his lessor to be responsible for fire by negligence or for other permissive waste, without doubt an action will lie on such express agreement. The same observation holds with respect to tenants for life or years before the statute of Glocester; for though the law did not make them liable to any action, yet it did not restrain them from making themselves liable by agreement. At the common law lessees were not answerable to landlords for accidental or negligent burning; for as to fires by accident, it is expressed in Fleta that fortuna ignis vel hujusmodi eventus inopinati omnes tenentes excusant; and lady Shrewsbury's case is a direct authority to prove that tenants are equally excusable for fires by negligence. Fleta, lib. i. c. 12. Then came the statute of Glocester, which, by making tenants for life and years liable to waste without exception, consequently rendered them answerable for destruction by fire; but now, by the 6 Anne, c. 31, the ancient law is restored, for the statute of Anne exempts all persons from actions for accidental fire in any house, except in the case of special agreements between landlord and tenant. See 14 Geo. III. c. 78, s. 86. It was doubted under this statute whether a covenant to repair generally extends to the case of fire, and so becomes an agreement within the statute; and therefore, where it is intended that the tenant shall not be liable, it has been usual in the covenant for repairing expressly to except accidents by fire. See Harg. Co. Litt. 57, a.-CHRISTIAN.
But it is now settled that a general unqualified covenant to repair subjects the tenant to the expense of rebuilding. 6 T. R. 650. The tenant at all events continues liable to pay rent. 3 Anst. 687. 3 Dowl. 233. 1 T. R. 310. 4 Taunt. 45. 18 Ves. Jr. 115.-CHITTY. The verdict for the plaintiff in a writ of waste ought to find the place wasted. 2 Bingh. R. 262.-CHITTY.
But this writ of waste has also been abolished, by 3 & 4 W. IV. c. 27, s. 36; and there now only remain therefore the two remedies already referred to: the first, to restrain waste by obtaining an injunction in a court of equity; and the second, to obtain damages for the waste after it has been committed, by an action on the case in a court of law, which action lies not only against the tenant, but against any stranger by whom an act waste has been committed.-STEWART.