Waste. CHAP. IX. of waste (a). If a lessee suffers the house to be uncovered whereby the timber decays, or if he permits the walls to be decayed for want of plastering whereby the timber is rotted, it is waste (b). And even though the house was uncovered or ruinous at the commencement of the lease, the tenant is liable for waste if he pulls it down or suffers it to become more ruinous (c); but not if he merely permits it to be as it was and it does not in fact become more ruinous (d). If by the default of a tenant the sea is suffered to surround arable land, meadow or pasture, it is waste; but it is not so if this is occasioned by the violence of a tempest (e). It is waste in a tenant to dig up the surface of the land and carry it away, or to convert wood to arable or arable to wood land, or to convert meadow land to an orchard or hop · garden, or a hop garden to tillage (ƒ). But if pasture is converted to tillage for the improvement of the soil this is not waste; nor is it if the land has been sometimes pasture and sometimes tillage (g). So to let the land lie fallow whereby it becomes overrun with bushes, &c. is not waste (h). Where lands are demised and no mention is made in the lease of mines, &c. the lessee will be guilty of waste if he opens new mines in the lands, or if he digs for gravel, stones, &c. in pits not already opened (i). But it is otherwise where the lands are demised with all mines, &c., or the mines, &c. are opened at the time of (a) 2 Roll. 815, 816; Keilw. 38, 39; 1 Lev. 309, 311; 2 Cro. 182; Co. Litt. 53 a. (b) Vane v. Lord Barnard, 1 T. R. 54; et supra, n. (a). (c) 2 Roll. 818; Co. Litt. 53 a. (d) Com. Dig." Waste," D. 2; Owen, 93. (e) Co. Litt. 53 a; 2 Roll. 816; Moore, 62, 73. (f) 2 Roll. 815, 816; Moore, 101; Co. Litt. 53b; 2 Leon. 174; Owen, 67. (g) 2 Roll. 814. (h) Ibid.; Hutton v. Warren, 1 M. & W. 472. (i) 5 Co. 12; 2 Mod. 193; Moore, 101; Co. Litt. 53 b. the lease (k). And it is not waste for a parson to dig or CHAP. IX. open mines in his glebe (1). Waste may also be committed by cutting down trees. Thus if a lessee cuts down timber trees, such as oak, ash or elm trees, which are esteemed timber throughout the realm, he will be liable for waste (m). Beech, willow, hornbeam, &c. are in some parts of the country accounted timber, and in such parts they cannot be cut down by a tenant(n); and it is waste in the lessee to do any act to cause timber trees to decay (o). But it is not waste to cut down trees which are not timber either by the general law or by custom of the country, unless they are growing for the shelter of the house. And if the timber trees are dead they may be cut down, and so may the underwood. And it is to be observed that a tenant may cut down timber for necessary botes, as for house bote, hedge bote, &c. (p); but the tenant may not cut down timber for the purpose of making new fences or building new houses (9). It is also waste in a lessee to cut down fruit trees; but if they are thrown down by tempest he may afterwards root them up (r). If timber or fruit trees are excepted out of the demise the tenant is not punishable as for waste if he wrongfully takes them (s). In regard to other acts of waste it has been held that an outgoing tenant of garden ground is liable for waste if he ploughs up strawberry beds in full bearing, although when he entered he paid for them on a valuation to the (k) 5 Co. 12; 2 Mod. 193; Moore, 101; Co. Litt. 53b; Viner v. Vaughan, 2 Beav. 446. (1) Com. Dig." Waste," D. 4; Bac. Abr. "Waste," C. 1, 3. (m) Co. Litt. 53 a; 8 T. R. 145. (n) Moore, 812; 2 Roll. 819; Cro. Car. 531; 2 Cro. 126. (0) Dyer, 65 a; Co. Litt. 53 a; 2 Roll. 814. (p) Vide supra, p. 182. (q) 2 Roll. 822, 823. (r) 2 Roll. 817. (s) 8 East, 19; Bac. Abr." Waste," C. 2. Waste. Waste. CHAP. IX. person who occupied the premises before him (t). And if a lessee destroys the stock of a dove cot, warren, park, fish pond, pool, &c., or suffers it to be diminished, he is guilty of waste. And so also if he stops up the holes of a dove cot, or throws down the pales of a park or the banks of a fish pond, it is waste (u). Remedies for waste. By the common law, a writ of waste might issue against a tenant in dower, a tenant by the curtesy, or a guardian in chivalry or socage (r), but not against a lessee for life or years (y). By the Statute of Marlbridge (z), it was enacted, that fermors, during their terms, shall not make waste of houses, woods, or anything belonging to the tenements which they have to ferm, without special license had by writing of covenant making mention that they may do it; which thing, if they do, and thereof be convict, they shall yield full damage and shall be punished by amercement grievously. This enactment has been held to extend to permissive as well as to voluntary waste (a), and the term fermors includes all persons who hold lands for life or years by deed or without it (b). The statute of Glo'ster (c) provided "that a man from henceforth shall have a writ of waste in Chancery against him that holdeth by the law of England or otherwise for term of life or for term of years, or a woman that holdeth in dower; and he which shall be attainted of waste shall lose the thing that he hath wasted, and, moreover, shall recompense thrice so much as the waste shall be (t) Wetherell v. Howells, 1 Camp. 227. (u) 2 Inst. 304; 2 Leon. 222; 4 Leon. 240; Owen, 66, 67; Com. Dig. "Waste," D. 3; Bac. Abr." Waste," C. 4. (x) F. N. B. 59; Co. Litt. 54 a; 2 Inst. 135, 145, 300. (y) 5 Co. 13b; Com. Dig." Waste,” A. 2. (z) 52 Hen. 3, c. 23, s. 2. (a) Hammond v. Webb, 10 Mod. 281. (b) 2 Inst. 145. (c) 6 Edw. 1, c. 5. for waste. taxed at." The writ of waste is now nearly obsolete, CHAP. IX. the usual remedies for waste being by ejectment for Remedies forfeiture (d), or by an action on the case in the nature of waste, to recover damages for an injury to the reversion (e). An action on the case may be maintained whether the tenant is under covenant to repair or not (f); but not for permissive waste only (g). And if the tenant is under a covenant to deliver up the premises at the end of his term in the same good condition in which they were put by J. M., his merely not having done so is not the subject of an action on the case in the nature of waste (h). Where, however, an assignee of a lessee was not bound by covenant to perform the covenants in the lease, it was held that the lessee might maintain an action on the case against him (i). The party suing must have the remainder or reversion (k), and the party committing or permitting waste will be liable for the injury to the reversion, whether he be tenant for life, for term of years, from year to year, or the assignee of such tenant (1). And if a tenant holds over after the determination of his tenancy, and is guilty of waste during the time he is in possession, an action on the case may be maintained against him (m). At common law tenants were not answerable to their Insurance. landlords for the destruction of the demised premises by (d) Vide supra, p. 250. (e) Doe d. Darlington, Earl of, v. Bond, 5 B. &. C. 855; Young v. Spencer, 10 B. & C. 145. (f) Kinlyside v. Thornton, 2 W. Bl. 1111; Herne v. Ben bow, 4 Taunt. 764. (g) Gibson v. Wells, 1 N. R. 290 (h) Jones v. Hill, 7 Taunt. 392. (i) Burnett v. Lynch, 5 B. & C. 602. (k) Co. Litt. 54; 2 Saund. 252 a, b, note 7. (1) Ibid., et Saunders v. Norwood, Cro. Eliz. 683; 2 Inst. 302, 305. (m) Burchell v. Hornsby, 1 Camp. 360. Insurance. CHAP. IX. fire, but they became so under the Statute of Glo'ster, whereby tenants for life or years were made liable for waste. This liability continued until by the statutes of Anne (n) it was enacted, "that no action, suit, or process whatsoever, shall be had, maintained, or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby." But a tenant may be liable for the consequences of a fire under a special contract or agreement, for the statute of Anne provides "that nothing in that act contained shall extend to defeat or make void any contract or agreement between landlord and tenant.” Where there is a covenant on the part of a lessee to insure from loss or damage by fire, the lessee will be liable for a breach of such covenant if he permits the premises to remain uninsured, although no fire or damage happens (o). And where a lease contained a covenant by the tenant to keep the premises in repair, and a covenant to insure them for a specific sum against fire; it was held, that on the premises being burnt down, the tenant's liability under the covenant to repair was not limited to the amount to which they ought to have been insured under the covenant to insure (p). It must be observed that the breach of a covenant to insure is difficult to establish by proof, unless the covenant is to insure in some particular office, or is accompanied by a covenant to produce the policy when called for (q). In regard to the insurance, it is to be observed, that it is necessary that the insured should have an interest in the property protected (r), and, in case of loss, he (n) 6 Anne, c. 31; 10 Anne, c. 14; M'Kenzie v. M‘Leod, 4 M. & Scott, 249. (0) Doe d. Pitt v. Shewin, 3 Camp. 134. (p) Digby v. Atkinson, 4 Camp. 275. (9) Doe d. Bridger v. Whitehead, 8 A. & E. 571. |