at least one case in this country that manure made from crops grown on the land goes to the heir as real property, and not to the personal representative as personalty;' .166 and it has also been decided that manure made on a farm, and piled thereon in heaps, is not subject to execution as a chattel.167

Even if otherwise regarded as part of the land, manure becomes personalty if sold by the landowner separately from the land,168 or if reserved upon a conveyance of the land.169

VI. RIGHTS OF USER-WASTE.

A tenant in possession of land cannot, as against one having a future estate or interest, appropriate or injure any part of what is regarded as a permanent part of the land. Such illegal action by the tenant is waste, for which he is generally liable in damages, and which may be restrained by injunction.

Waste usually consists of injury to the mineral deposits, to the timber or other permanent growths, or to structures on the ground.

Equitable waste is such as is taken cognizance of in equity, but not at law.

"Permissive" waste, as distinguished from "voluntary" waste, consists of a mere failure to protect the structures on the land from decay or injury by the elements.

A tenant in common or joint tenant is liable, usually by force of statute, for any unreasonable use of the land or of parts thereof, to the injury of his cotenant.

decided that manure dropped on a highway belonged to the person who first gathered it into heaps, as against a person who thereafter appropriated it.

168 Fay v. Muzzey, 13 Gray (Mass.) 53, Finch's Cas. 339, 1 Gray's Cas. 654. And see Sawyer v. Twiss, 26 N. H. 345, 1 Gray's Cas. 651. Manure not made from crops on the land is, however, personalty going to the executor. Id.

167 Sawyer v. Twiss, 26 N. H. 345, 1 Gray's Cas. 651.

168 French v. Freeman, 43 Vt. 94.

137.

109 Strong v. Doyle, 110 Mass. 92.

See Collier v. Jenks, 19 R. L.

246. Rights as determined by the quantum of estate.

170

In

A tenant in fee simple may make any use whatever of the land, provided he do not violate the rights, either naturally existing or imposed by contract, in favor of his neighbors,1 even though he destroy buildings, improvements, or timber on the land, or in other ways decrease the value thereof. case, however, the fee-simple estate is liable to be divested by the taking effect of an executory limitation, a court of equity will interpose, on the application of the owner of the execu tory interest, to restrain unreasonable destruction or "waste" of the inheritance by the tenant in possession, this being known as "equitable waste," because thus recognized in equity only.'

171

A tenant in fee tail has the same right to use the land, even to its injury, as has a tenant in fee simple; and since he always has, in any case, the power to destroy executory interests by a conveyance in fee simple, a court of equity will not, in favor of the owner of an executory interest, restrain destruction by the tenant in tail.172 Tenant in special tail after possibility of issue extinct, though he is, in other respects, in the position of a tenant for life merely, may commit ordinary waste, but willful acts of destruction by him will be restrained, as being equitable waste.178

A tenant for life or for years has the right to use and enjoy the premises in the condition in which he receives them, and to take therefrom the profits of the land, whether periodical or continuous, but cannot generally do any acts upon the premises which involve a diminution in their value, to

170 See post, Part IV.

171 Turner v. Wright, 2 De Gex, F. & J. 234, 1 Gray's Cas. 593, Finch's Cas. 391; Farabow v. Green, 108 N. C. 339. Contra, Matthews v. Hudson, 81 Ga. 120, 12 Am. St. Rep. 305.

172 Attorney General v. Duke of Marlborough, 3 Madd. 498.

178 Co. Litt. 27b; Bowles' Case, 11 Coke, 79b, 1 Gray's Cas. 564; Attorney General v. Duke of Marlborough, 3 Madd. 498.

the injury of the reversioner or remainderman. Such acts of injury to the subsequent interests-to the "inheritance," as it is expressed-constitute "waste."

$247. General considerations as to waste.

174

In

The question of what constitutes waste is, at the present day, determined primarily, at least, by the consideration whether the act results in injury to the inheritance.1 former times, some acts were regarded as waste merely because they changed the appearance of the land, and so im-paired the evidence of title thereto, but, with the adoption of improved methods of identifying land, this can no longer be regarded as waste.175 It was, in part at least, on this principle, that any change in the character of the land, as of meadow into arable land, or arable land into wood, was formerly regarded as constituting waste,178 but at the present day such a change would not be waste, at least in this country, unless it constitute an actual injury to the inheritance."

177

A merely trifling damage has from early times been regarded as insufficient to support an action as for waste, the judgment being entered for defendant in case the jury finds for the plaintiff in merely nominal damages.178

174 Pynchon v. Stearns, 11 Metc. (Mass.) 304, 45 Am. Dec. 207, 1 Gray's Cas. 601, Finch's Cas. 451; King v. Miller, 99 N. C. 583; Proffitt v. Henderson, 29 Mo. 325; McGregor v. Brown, 10 N. Y. 114. But see Livingston v. Reynolds, 26 Wend. (N. Y.) 115.

175 Doherty v. Allman, 3 App. Cas. 709, 725; Pynchon v. Stearns, 11 Metc. (Mass.) 304, 45 Am. Dec. 207, 1 Gray's Cas. 601; Melms v. Pabst Brewing Co., 104 Wis. 7.

176 Co. Litt. 53a; Darcey v. Askwith, Hob. 234; Simmons v. Nor ton, 7 Bing. 640.

177 Pynchon v. Stearns, 11 Metc. (Mass.) 304, 45 Am. Dec. 207, 1 Gray's Cas. 601, Finch's Cas. 451; Clemence v. Steere, 1 R. I. 272, 53 Am. Dec. 621. See Bewes, Waste, 18, 135. And compare Chapel ▼. Hull, 60 Mich. 167, where it was held that plowing up all the meadow land on a farm was waste.

178 Co. Litt. 54a; Harrow School v. Alderton, 2 Bos. & P. 86, !

In determining whether particular acts constitute waste, the condition and usages of the particular locality are to be considered; a thing thus constituting waste in one locality which is not waste in another.179 The general tendency of the American courts has been to restrict the application of the English law of waste, in order to adapt it to the conditions of a new and growing country, and to stimulate the development of the land by the tenant in possession.180

248. Earth and minerals.

A particular tenant, such as a tenant for life or years, has no right to take clay, gravel, soil, and the like, unless such material was one of the recognized profits of the land before the commencement of his tenancy.181 Nor can he open new quarries, mines, or oil or gas wells, unless he is expressly given such right.182 Quarries, mines, or wells, however,

Gray's Cas. 581; Doe d. Grubb v. Burlington, 5 Barn. & Adol. 507; Doherty v. Allman, 3 App. Cas. 733; Sheppard v. Sheppard, 3 N. C. 580.

179 Pynchon v. Stearns, 11 Metc. (Mass.) 304, 45 Am. Dec. 207, 1 Gray's Cas. 601; Drown v. Smith, 52 Me. 141; King v. Miller, 99 N. C. 583.

180 4 Kent, Comm. 76; Gaines v. Green Pond Iron Min. Co., 33 N. J. Eq. 603, 1 Gray's Cas. 611; Pynchon v. Stearns, 11 Metc. (Mass.) 304, 45 Am. Dec. 207, 1 Gray's Cas. 601, Finch's Cas. 451; Clemence v. Steere, 1 R. I. 621, 53 Am. Dec. 621; King v. Miller, 99 N. C. 583; Drown v. Smith, 52 Me. 141; Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733; Chase v. Hazleton, 7 N. H. 171; Proffitt v. Henderson, 29 Mo. 325.

181 Co. Litt. 53b; United States v. Bostwick, 94 U. S. 53; Smith v. City of Roine, 19 Ga. 89, 63 Am. Dec. 298; University v. Tucker, 31 W. Va. 621; Coates v. Cheever, 1 Cow. (N. Y.) 460; Reed's Ex'rs v. Reed, 16 N. J. Eq. 248. The tenant may, however, take clay or gravel for the repair of the house, on the same principle on which he may take wood for that purpose, under the law of estovers. Co. Litt. 53b.

182 Co. Litt. 53b; Astry v. Ballard, 2 Mod. 193, 1 Gray's Cas. 572; Saunders' Case, 5 Coke, 12a; Stoughton v. Leigh, 1 Taunt. 410, (561)

which were opened before the commencement of the tenancy in question, may be worked by the tenant, it being considered that the previous owner, by such opening, made the minerals a part of the regular profits of the land.183 On the same principle, in case the previous owner in fee made a lease of nines, or authorized his executors to do so, a subsequent life tenant is entitled to the rent or royalty therefrom as income.184 The mine or quarry cannot, however, it seems, be worked by the tenant for general purposes, as for sale, if, previous to his tenancy, it was worked merely for some other and restricted purpose, as for the repair of particular buildings. 185

If the work in a mine was discontinued before the beginning of the tenancy, and the discontinuance was such as apparently to show an intention on the part of the previous owner to devote the land to other uses, the succeeding tenant cannot work it, though he may do so if the discontinuance was owing to lack of sale for the minerals, to want of cap

Gray's Cas. 729; Owings v. Emery, 6 Gill (Md.) 260; Harlow ▼ Lake Superior Iron Co., 36 Mich. 105; Williamson v. Jones, 43 W. Va. 562; Bewes, Waste, 103 et seq. That, however, a tenant in dower may open mines, see In re Seager's Estate, 92 Mich. 186, Finch's Cas. 454.

188 Co. Litt. 54b; Astry v. Ballard, 2 Mod. 193, 1 Gray's Cas. 572; Gaines v. Green Pond Iren Min. Co., 33 N. J. Eq. 603, 1 Gray's Cas. 611; McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 49 Am. Rep. 686; Findlay v. Smith, Munf. (Va.) 134, 8 am. Dec. 733; Lynn's Appeal, 31 Pa. St. 44, 72 Am. Dec. 721; Moore v. Rollins, 45 Me. 493. An open mine may be worked even to exhaustion. Say. ers v. Hoskinson, 110 Pa. St. 473; Irwin v. vode, 24 Pa. St. 162; Koen v. Bartlett, 41 W. Va. 559, 56 Am. St. Rep. 294.

184 Priddy v. Griffith, 150 Ill. 560; Hendrix v. McBeth, b. Ind. 473; Eley's Appeal, 103 Pa. St. 300; Clift v. Clift, 87 Tenn. 17; nen v. Bartlett, 41 W. Va. 559, 56 Am. St. Rep. 884; Raynoldɛ Henn 55 Fed. 783.

185 Elias v. Snowdon State Quarries Co., 4 App. Cas. 454. Sce Ward v. Carp River Iron Co., 47 Mich. 65. But see Neel v. Neel 19 Pa. St. 323.