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Wrongs to

an owner

interest (t), as by killing (u), beating (x), or chasing (y) animals, or defacing a work of art. Where the possession is changed the trespass is an asportation (from the old form of pleading, cepit et asportavit for inanimate chattels, abduxit for animals), and may amount to the offence of theft. Other trespasses to goods may be criminal offences under the head of malicious injury to property. The current but doubtful doctrine of the civil trespass being "merged in the felony " when the trespass is felonious has been considered in an earlier chapter (z). Authority, so far as known to the present writer, does not clearly show whether it is in strictness a trespass merely to lay hands on another's chattel without either dispossession (a) or actual damage. By the analogy of trespass to land it seems that it must be so. There is no doubt that the least actual damage would be enough (b). And cases are conceivable in which the power of treating a mere unauthorized touching as a trespass might be salutary and necessary, as where valuable objects are exhibited in places either public or open to a large class of persons. In the old precedents trespass to goods hardly occurs except in conjunction with trespass to land (c).

III.-Injuries to Reversion.

A person in possession of property may do wrong by not in pos- refusing to deliver possession to a person entitled, or by

session.

(t) Blackst. iii. 153.

(u) Wright v. Ramscot, 1 Saund. 83, 1 Wms. Saund. 108 (trespass for killing a mastiff).

(x) Dand v. Sexton, 3 T. R. 37 (trespass vi et armis for beating the plaintiff's dog).

(y) A form of writ is given for chasing the plaintiff's sheep with dogs, F. N. B. 90 L.; so for

shearing the plaintiff's sheep, ib. 87 G.

(2) P. 180, above.

(a) See Gaylard v. Morris (1849) 3 Ex. 695, 18 L. J. Ex. 297.

(b) "Scratching the panel of a carriage would be a trespass,' Alderson B. in Fouldes v. Willoughby, 8 M. & W. 549.

(c) See F. N. B. 86-88, passim.

otherwise assuming to deal with the property as owner or adversely to the true owner, or by dealing with it under colour of his real possessory title but in excess of his rights, or, where the nature of the object admits of it, by acts amounting to destruction or total change of character, such as breaking up land by opening mines, burning wood, grinding corn, or spinning cotton into yarn, which acts however are only the extreme exercise of assumed dominion. The law started from entirely distinct conceptions of the mere detaining of property from the person entitled, and the spoiling or altering it to the prejudice of one in reversion or remainder, or a general owner (d). For the former case the common law provided its most ancient remedies-the writ of right (and later the various assizes and the writ of entry) for land, and the parallel writ of detinue (parallel as being merely a variation of the writ of debt, which was precisely similar in form to the writ of right) for goods; to this must be added, in special, but once frequent and important cases, replevin (e). For the latter the writ of waste (as extended by the Statutes of Marlbridge and Gloucester) was available as to land; later this was supplanted by an action on the case (f) "in the

(d) As to the term "reversionary interest" applied to goods, cp. Dicey on Parties, 345. In one way "reversioner" would be more correct than "owner or "general owner," for the person entitled to sue in trover or prosecute for theft is not necessarily dominus, and the dominus of the chattel may be disqualified from so suing or prosecuting.

(e) It seems useless to say more of replevin here. The curious reader consult Mennie v. Blake may (1856) 6 E. & B. 842, 25 L. J. Q. B. 399. For the earliest form

of writ of entry see Close Rolls, vol. i. p. 32. Blackstone is wrong in stating it to have been older than the assizes.

(f) When the tenancy was at will, trespass would lie, Litt. s. 71; "the taking upon him power to cut timber or prostrate houses concerneth so much the freehold and inheritance as it doth amount in law to a determination of his will,” Co. Litt. 57 a just as a bailee who "breaks bulk" is held to repudiate the bailment and become a mere trespasser.

Waste.

nature of waste," and in modern times the power and remedies of courts of equity have been found still more effectual (g). The process of devising a practical remedy for owners of chattels was more circuitous; they were helped by an action on the case which became a distinct species under the name of trover, derived from the usual though not necessary form of pleading, which alleged that the defendant found the plaintiff's goods and converted them to his own use (h). The original notion of conversion in personal chattels answers closely to that of waste in tenements; but it was soon extended so as to cover the whole ground of detinue (i), and largely overlap trespass; a mere trespasser whose acts would have amounted to conversion if done by a lawful possessor not being allowed to take exception to the true owner" waiving the trespass,' and professing to assume in the defendant's favour that his possession had a lawful origin.

IV.-Waste.

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Waste is any unauthorized act of a tenant for a freehold estate not of inheritance, or for any lesser interest, which tends to the destruction of the tenement, or otherwise to

(g) For the history and old law, see Co. Litt. 53, 54, Blackst. ii. 281; iii. 225; notes to Greene v. Cole, 2 Wms. Saund. 644; and Woodhouse v. Walker (1880) 5 Q. B. D. 404. The action of waste proper could be brought only "by him that hath the immediate estate of inheritance," Co. Litt. 53a.

(h) Blackst. iii. 152, cf. the judgment of Martin B. in Burroughes v. Bayne (1860) H. & N. 296, 29 L. J. Ex. 185, 188; and as to the forms of pleading, Bro. Ab. Accion sur le Case, 103, 109, 113,

and see Littleton's remark in 33 H. VI., 27, pl. 12, an action of detinue where a finding by the defendant was alleged, that "this declaration per inventionem is a new found Haliday"; the case is translated by Mr. R. S. Wright in Pollock and Wright on Possession, 174.

(i) Martin B. 1. c. whose phrase "in very ancient times" is a little misleading, for trover, as a settled common form, seems to date only from the 16th century; Reeves Hist. Eng. L. iv. 526.

the injury of the inheritance. Such injury need not consist in loss of market value; an alteration not otherwise mischievous may be waste in that it throws doubt on the identification of the property, and thereby impairs the evidence of title. It is said that every conversion of land from one species to another-as ploughing up woodland, or turning arable into pasture land-is waste, and it has even been said that building a new house is waste (k). But modern authority does not bear this out; "in order to prove waste you must prove an injury to the inheritance" either "in the sense of value" or "in the sense of destroying identity" (7). And in the United States, especially the Western States, many acts are held to be only in a natural and reasonable way of using and improving the land-clearing wild woods for example— which in England, or even in the Eastern States, would be manifest waste (m). As to permissive waste, i.e., suffering the tenement to lose its value or go to ruin for want of necessary repair, a tenant for life or years is liable therefor if an express duty to repair is imposed upon him by the instrument creating his estate; otherwise it is doubtful (n). It seems that it can in no case be waste to use a tenement in an apparently reasonable and proper manner, "having regard to its character and to the purposes for which it was intended to be used" (0), whatever the actual

(k)"If the tenant build a new house, it is waste; and if he suffer it to be wasted, it is a new waste." Co. Litt. 53a.

(1) Jones v. Chappell (1875) 20 Eq. 539, 540-2 (Jessel M. R.).

(m) Cooley on Torts, 333.

(n) Woodhouse v. Walker (1880) 5 Q. B. D. 404, 407, 49 L. J. Q. B. 609. An equitable tenant for life is not liable for permissive waste:

Powys v. Blagrave (1854) 4 D. M.
G. 448; Re Hotchkys, Freke v.
Calmady (1886) 32 Ch. D. 408, 55
L. J. Ch. 546.

(0) Manchester Bonded Warehouse Co. v. Carr (1880) 5 C. P. D. 507, 512, 49 L. J. C. P. 809; following Saner v. Bilton (1878) 7 Ch. D. 815, 821, 47 L. J. Ch. 267; cp. Job v. Potton (1875) 20 Eq. 84, 44 L. J. Ch. 262.

Modern

law of waste: tenants for life.

consequences of such user may be. Where a particular course of user has been carried on for a considerable course of time, with the apparent knowledge and assent of the owner of the inheritance, the Court will make all reasonable presumptions in favour of referring acts so done to a lawful origin (p).

In modern practice, questions of waste arise either between a tenant for life (g) and those in remainder, or between landlord and tenant. In the former case, the unauthorized cutting of timber is the most usual ground of complaint; in the latter, the forms of misuse or neglect are as various as the uses, agricultural, commercial, or manufacturing, for which the tenement may be let and occupied. With regard to timber, it is to be observed that there are "timber estates" on which wood is grown for the purpose of periodical cutting and sale, so that cutting the timber is the mode of cultivation" (r). On such land cutting the timber is equivalent to taking a crop off arable land, and if done in the usual course is not waste. A tenant for life whose estate is expressed to be without impeachment of waste may freely take timber and minerals for use, but, unless with further specific authority, he must not remove timber planted for ornament (save so far as the cutting of part is required for the preservation of the rest) (s), open a mine in a garden or

66

(p) Elias v. Snowdon Slate Quarries Co. (1879) 4 App. Ca. 454, 465, 48 L. J. Ch. 811.

(9) In the United States, where tenancy in dower is still common, there are many modern decisions on questions of waste arising out of such tenancies. See Cooley on Torts 333, or Scribner on Dower (2nd ed. 1883) i. 212-214; ii. 795 sq7.

(r) As to the general law concerning timber, and its possible variation by local custom, see the judgment of Jessel M. R., Honywood v. Honywood (1874) 18 Eq. 306, 309, 43 L. J. Ch. 652.

(s) See Baker v. Sebright (1879) 13 Ch. D. 179, 49 L. J. Ch. 65; but it seems that a remainderman coming in time would be entitled

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