In England the lease or other instrument creating an estate for life or years quite frequently provides that the tenant shall be "without impeachment of waste," or uses equivalent language, and the effect of such a provision is that the tenant can, at law, commit waste to the same extent as a tenant in fee simple, as by cutting timber or digging minerals for the purpose of sale.221 A tenant without impeachment of waste will, however, be restrained from unreasonable destruction of the property, to the injury of those entitled to the inheritance; that is, from equitable waste.222

254. Permissive waste.

What is known as "permissive waste" is injury to the inheritance, not by the voluntary act of the tenant, but by his failure to take measures to prevent such injury from the elcments, as when he fails to keep the building wind and water tight,228 or allows part of the premises to be submerged by

738; Rolt v. Somerville, 2 Eq. Cas. Abr. 759, 1 Gray's Cas 577; Marker v. Marker, 9 Hare, 1, 17; Downshire v. Sandys, 6 Ves. 110; Stevens v. Rose, 69 Mich. 259, Finch's Cas. 442; Clement v. Wheeler, 25 N. H. 361; 1 Bewes, Waste, 167.

221 Bewes, Waste, 145; Bowles' Case, 11 Coke, 79, 1 Gray's Cas 564.

222 Vane v. Barnard, 2 Vern. 738, 1 Gray's Cas. 572. See ante, note 220.

223 Co. Litt. 53a; Auworth v. Johnson, 5 Car. & P. 239; Suydam v. Jackson, 54 N. Y. 450; Moore v. Townshend, 33 N. J. Law, 281, 1 Gray's Cas. 605, Finch's Cas. 427. See Sherrill v. Connor, 107 N. C. 630. A breach of the obligation to keep fences in repair, which in some cases (Whitfield v. Weedon, 2 Chit. 685; Cheetham v. Hampson, 4 Term R. 319; Fenton v. Montgomery, 19 Mo. App. 156; Blood v. Spaulding, 57 Vt. 422; Andrews v. Jones, 36 Tex. 149) is regarded as impliedly assumed by the tenant, might perhaps be regarded as permissive waste. But see Richards v. Torbert, 3 Houst (Del.) 172.

water, to their injury, 224 or even when, by negligence in keeping or guarding a fire on the premises, the building is destroyed.225 It is not, however, permissive waste to leave the building without a roof, if that was its condition at the be ginning of the tenancy,226 nor is the tenant bound to make extraordinary repairs, involving the substitution of new structures, or parts thereof, for old. 227

The liability of a particular tenant on account of permissive waste is in England a matter of some doubt, but it appears probable that a tenant for years or from year to year is so liable at law,228 though otherwise as to a tenant for life, especially if he holds under a lease.229 And a court of equity will not interfere to restrain permissive waste, or to give compensation therefor.230 In this country it has been held that a tenant for years is liable for permissive waste,281 and likewise a life tenant.232 A tenant at will has never

224 Co. Litt. 53a; Anonymous, Moore, 62.

225 Lothrop v. Thayer, 138 Mass. 466, Finch's Cas. 437; Co. Litt. 53a; 1 Taylor, Landl. & Ten. § 349; 4 Kent, Comm. 81.

226 Co. Litt. 53a.

227 Ferguson v.

2 Esp. 590, 1 Gray's Cas. 583, Finch's

423; Long v. Fitzsimmons, 1 Watts & S. (Pa.) 530; Suydam v. Jackson, 54 N. Y. 450.

2 Esp. 590, 1 Gray's Cas. 583,

228 Co. Litt. 53; Ferguson v. Finch's Cas. 423; Leach v. Thomas, 7 Car. & P. 327; Harnett v. Maitland, 16 Mees. & W. 257; Davies v. Davies, 38 Ch. Div. 499; Yellowly v. Gower, 11 Exch. 274. See Bewes, Waste, 215.

229 In re Cartwright, 41 Ch. Div. 532, Finch's Cas. 423; Patterson v. Central Canada Loan & Sav. Co., 29 Ont. 134; Barnes v. Dowling, 44 Law T. (N. S.) 809; Bewes, Waste, 220.

230 Powys v. Blagrave, 4 De Gex, M. & G. 448; In re Hotchkys, 32 Ch. Div. 418.

231 Moore v. Townshend, 83 N. J. Law, 284, 1 Gray's Cas. 605, Finch's Cas. 427; Long v. Fitzsimmons, 1 Watts & S. (Pa.) 530; Suydam v. Jackson, 54 N. Y. 450.

232 Stevens v. Rose, 69 Mich. 259, Finch's Cas. 442; Miller v. Shields, 65 Ind. 71; Wilson v. Edmonds, 24 N. H. 517, 545; Schulting v. Schulting, 41 N. J. Eq. 130. See Moore v. Townshend. 33 N. J. Law, 284, 1 Gray's Cas. 605, Finch's Cas. 427; Harvey v. Harvey, 41 Vt. 878. Contra, Richards v. Torbert, 8 Houst. (Del.) 172.

been regarded as liable for permissive waste, the statutes in regard to waste not applying in terms to such tenants.283 A tenant is liable for waste done by a stranger, on the theory that he could have prevented it,284 but not for that resulting from the act of God, public enemies, or the law.285 Whether, under the Statute of Gloucester, a tenant for life or years was liable in case of injury by accidental fire, as for permissive waste, is a matter on which there is a difference of opinion,236 but at the present day such a liability, if it ever

288 Litt. § 71; Co. Litt. 57a; Countess of Shrewsbury's Case, 5 Coke, 13, 1 Gray's Cas. 563; Harnett v. Maitland, 16 Mees. & W. 257; Moore v. Townshend, 33 N. J. Law, 284, 1 Gray's Cas. 605, Finch's Cas. 427; Coale v. Hannibal & St. J. R. Co., 60 Mo. 227. On this principle, it has even been held that the burning of the premises through the negligence of a tenant at will, in not guarding a fire used for heating the premises, is not ground for recovery by the landlord, it being merely permissive waste. Lothrop v. Thayer, 138 Mass. 466, Finch's Cas. 437.

284 Co. Litt. 54a; Wood v. Griffin, 46 N. H. 230, 237; Powell v. Dayton, S. & G. R. R. Co., 16 Or. 33, 8 Am. St. Rep. 251; Austin v. Hudson River R. Co., 25 N. Y. 334; Cook v. Champlain Transp. Co., 1 Denio (N. Y.) 91, 1 Gray's Cas. 559, note; Fay v. Brewer, 3 Pick. (Mass.) 203; Parrott v. Barney, 2 Abb. (U. S.) 197, Fed. Cas. No. 10,773, Finch's Cas. 465; Attersoll v. Stevens, 1 Taunt. 198; White v. Wagner, 4 Har. & J. (Md.) 373, 7 Am. Dec. 674; Moore v. Townshend, 33 N. J. Law, 284, Finch's Cas. 427, 1 Gray's Cas. 605.

285 Co. Litt. 53a; Abbot of Shirbourne's Case, Y. B. 12 Hen. IV. 5, 1 Gray's Cas. 557; Saner v. Bilton, 7 Ch. Div. 815; United States v. Bostwick, 94 U. S. 53; Sheer v. Fisher, 27 Ill. App. 464; Earle v. Arbogast, 180 Pa. St. 409; Machen v. Hooper, 73 Md. 342.

236 Lord Coke says, without any citation of authority, that "burning of the house by negligence or mischance is waste" (Co. Litt. 53b), and Mr. Hargrave, in his notes to Co. Litt. 57a, states that, under the Statute of Gloucester, an accidental burning was waste, and that the tenant was relieved from liability in this regard only by the Statutes of Anne, c. 31 (A. D. 1707), and 14 Geo. III. c. 78, § 86 (A. D. 1774), which in terms exempted from liability persons on whose premises a fire accidentally began from liability for dam

existed, is repudiated by the courts.237 For negligence resulting in injury to the premises, whether by fire or otherwise, the tenant is liable.238

There are some decisions in this country to the effect that a particular tenant who is under an obligation to pay taxes is guilty of waste if he allows the land to be sold for taxes,2 -a rather singular extension, it would seem, of the law of

waste.

255. Remedies for waste.

At common law, an action could be brought on account of waste against tenants in dower or by curtesy, and against guardians in chivalry, but not against lessees for life or years; this distinction being based on the ground that, while the interests of the former were created by act of the law, in the case of the latter the lessor could have provided in the lease

age caused thereby, and seem rather directed at cases of fire spreading from one tenant to another. Mr. Hargrave's view is adopted in 4 Kent, Comm. 82. On the other hand, the words of Lord Coke have been, in connection with the context, construed as stating a liability only in case of negligence. Blackburne, C. J., in White v. McCann, 1 Ir. C. L. 205, 217, quoted, apparently with approval, in Bewes, Waste, 250. The cases before the passage of the English statutes mentioned, in which a liability on the part of the tenant was asserted, appear usually to have charged negligence on the part of the tenant. Salop v. Crompton, Cro. Eliz. 777; Hicks v. Downing, 1 Ld. Raym. 99.

237 Sampson v. Grogan, 21 R. I. 174, 178; Wainscot v. Silvers, 13 Ind. 497; Levey v. Dyess, 51 Miss. 501; Warner v. Hitchins, 5 Barb. (N. Y.) 666; Earle v. Arbogast, 180 Pa. St. 409; Wolfe v. McGuire, 28 Ont. 45; United States v. Bostwick, 94 U. S. 53; Nave v. Berry, 22 Ala. 383; Maggort v. Hansbarger, 8 Leigh (Va.) 536.

238 Warder v. Henry, 117 Mo. 530; Duer v. Allen, 96 Iowa, 36; Wilcox v. Cate, 65 Vt. 478; Robinson v. Wheeler, 25 N. Y. 252.

239 Cannon v. Barry, 59 Miss. 289, Finch's Cas. 433; Stetson v. Day, 51 Me. 434; Phelan v. Boylan, 25 Wis. 679; McMillan's Lessee v. Robbins, 5 Ohio, 28 (statute).

(573)

against waste.240 Owing, however, to the frequent commission of waste by lessees, the Statute of Marlbridge 241 was passed, by which it was provided that "fermors, during their terms, shall not make waste, sale, nor exile of houses, woods, and men, nor of anything belonging to the tenements that they have to ferm," and that, if they so do, they shall yield full damage.242 Subsequently, the Statute of Gloucester 243 gave a writ of waste "against him that holdeth by law of England, or otherwise for term of life, or for term of years, or a woman in dower," and provided that the person guilty of waste should forfeit the land, and pay "thrice so much as the waste shall be taxed at."

A tenant at will was never regarded as within the scope of these statutes, and consequently, if such a tenant commits acts injurious to the inheritance, which, in the case of other tenants, would constitute waste, he is considered to have committed, not waste, but a trespass, which terminates the tenancy, and renders him liable to an action for damages as in the case of any wrongdoer.244

The action of waste, as it existed in certain cases at common law, and generally under these statutes, was gradually superseded by an action on the case to recover damages for

240 Co. Litt. 54; 2 Co. Inst. 299, 305; Moore v. Townshend, 33 N. J. Law, 284, Finch's Cas. 427, 1 Gray's Cas. 605.

241 52 Hen. III. c. 23, § 2 (A. D. 1267).

242 "Fermors (firmarii) do comprehend all such as hold by lease for life or lives or for years, by deed or without deed." 8 Inst. 145, note 1.

248 6 Edw. I. c. 5 (A. D. 1278).

244 Litt. 8 71; Co. Litt. 57a; Countess of Shrewsbury's Case, 8 Coke, 13, 1 Gray's Cas. 563; Phillips v. Covert, 7 Johns. (N. Y.) 1, Finch's Cas. 463; Chalmers v. Smith, 152 Mass. 561; Perry v. Carr, 44 N. H. 118. The proper form of action against the tenant at will is consequently trespass, and not trespass on the case. Salop v. Crompton, Cro. Eliz. 777; Goodright v. Vivian, 8 East, 190; Chalmers v. Smith, supra.