WASTE.
Legal Term: WASTE.
Definition: down without waste, is a question of fact for the jury under the direction of the court. 7 Johns. R. 227. The tenant may cut down trees for the reparation of the houses, fences, hedges, stiles, gates, and the like, Co. Litt. 53, b, and for mixing and repairing all instruments of husbandry, as ploughs, carts, harrows, rakes, forks, &,c. Woods Inst. 344. The tenant may, when he is unrestrained by the terms of his lease, out down timber, if there be not enough dead timber. Com. Dig Waste, D 5, F. N. B. 59 M. Where the tenant, by the conditions of his lease, is entitled to cut down timber, he is restrained nevertheless from cutting down ornamental trees, or those planted for shelter, 6 Ves. 419, or to exclude objects from sight. 16 Ves. 375.
9. Windfalls are the property of the landlord, for whatever is severed by inevitable necessity, as by a tempest, or by a trespasser, and by wrong, belongs to him who has the inheritance. 3 P. Wms. 268, 11 Rep. 81, Bac. Abr. Waste, D 2.
10. Waste is frequently committed on cultivated fields, orchards, gardens, meadows, and the like. It is proper here to remark that there is an implied covenant or agreement on the part of the lessee to use a farm in a husbandman-like manner, and not to exhaust the soil by neglectful or improper tillage. 5 T. R. 373. See 6 Ves. 328. It is therefore waste to convert arable to woodland and the contrary, or meadow to arable, or meadow to orchard. Co. Lit. 53, b. Cutting down fruit trees, 2 Roll. Abr. 817, l. 30, although planted by the tenant himself, is waste, and it was held to be waste for an outgoing tenant of garden ground to plough up strawherry beds which be had bought of a former tenant when he entered. i Camp. 227.
11. It is a general rule that when lands are leased on which there are open mines of metal or coal or pits of gravel, lime, clay, brick, earth, stone, and the like, the tenant may dig out of such mines, or pits. Com. Dig. Waste, D 4. But he cannot open any new mines or pits without being guilty of waste Co. Lit. 53 b, and carrying away the soil, is waste. Com. Dig. Waste, D 4.
12. - ,2. Permissive waste. Permissive waste in houses is punishable where the tenant is expressly bound to repair, or where he is so bound on an implied covenant. See 2 Esp. R. 590, 1 Esp. Rep. 277, Bac. Abr. Covenant, F. It is waste if the tenant suffer a house leased to him to remain uncovered so long that the rafters or other timbers of the house become rotten, unless the house was uncovered when the tenant took possession. Com. Dig. Waste, D 2.
13. - ,3. Of remedies for waste. The ancient writ of waste has been superseded. It is usual to bring case in the nature of waste instead of the action of waste, as well for permissive as voluntary waste.
14. Some 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. 392, S. C. 1 Moore, 100, 1 Saund. 323, a, n. i. Even where the lessee 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 Bl. Rep. 1111, 2 Saund. 252, c. n. In an action on the case in the nature of waste, the plaintiff recovers only damages for the waste.
15. The latter action has this advantage over an action of waste, that it may be brought by him in 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., 2 Saund. 252, n. See, on the subject in general, Woodf. Landl. &, T. 217, ch. 9, s. 1, Bac. Abr. Waste, Vin. Abr. Waste, Com. Dig. Waste, Supp. to Ves. jr. 50, 325, 441, 1 Vern. R. 23, n., 2 Saund. 252, a, n. 7, 259, n. 11, Arch. Civ. Pl. 495, 2 Sell. Pr. 234, 3 Bl. Com. 180, note by Chitty, Anier. Dig. Waste, Whart. Dig. Waste, Bouv. Inst. Index, h. t.
As to remedies against waste by injunction, see 1 Vern. R. 23, n., 5 P. Wms. 268, n. F, 1 Eq. Cas. Ab. 400, 6 Ves. 787, 107, 419, 8 Ves. 70, 16 Ves. 375, 2 Swanst. 251, 3 Madd. 498, Jacobs R. 70, Drew. on Inj. part 2, c. 1, p. 134. As between tenants in common, 5 Taunt. 24, 19 Ves. 159, 16 Ves. 132, 3 Bro. C. C. 622, 2 Dick. 667, Bouv. Inst. Index, h. t., and the article Injunction. As to remedy by writ of estrepement to prevent waste, see Estrepement, Woodf Landl. &, T. 447, 2 Yeates, 281, 4 Smiths Laws of Penn. 89, 3 Bl. Com. 226. As to remedies in cases of fraud in committing waste, see Hov. Fr. ch. 7, p. 226 to 238.
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