In cases in which an injunction is granted, an accounting may be ordered in the same proceeding as to waste already committed,261 and it may, it seems, be ordered in some cases where the circumstances render an injunction unavailable.262 And the person committing waste may be compelled to restore the things wasted, when this is possible.2*3

256. The right to the proceeds of waste.

When the tenant has committed waste by severing from the land something that is a part of the inheritance, as a structure or timber on the land, the thing so severed generally belongs to the owner of the first estate of inheritance, as it does when severed by accident, as by a windstorm.264

261 Jesus College v. Bloom, 3 Atk. 262; Winship v. Pitts, 3 Paige (N. Y.) 259; Fleming v. Collins, 2 Del. Ch. 230; Ackerman v. Hartley, 8 N. J. Eq. 476; Armstrong v. Wilson, 60 Ill. 226; Williamson v. Jones, 43 W. Va. 562. So, under the Code system. Disher ▼. Disher, 45 Neb. 100.

262 Bewes, Waste, 351; Seagram v. Knight, 2 Ch. App. 628. See Crockett v. Crockett, 2 Ohio St. 180. An accounting for waste may also be ordered as incident to a discovery. Whitfield v. Brevit, 2 P. Wms. 240.

263 Klie v. Van Broock, 56 N. J. Eq. 18; Vane v. Lord Barnard, 2 Vern. 738, 1 Gray's Cas. 572; Rolt v. Lord Somerville, 2 Eq. Cas. Abr. 759, 1 Gray's Cas. 577.

264 Bewes, Waste, 193; Bowles' Case, 11 Coke, 79, 1 Gray's Cas. 564; Herlakenden's Case, 4 Coke, 62a; Mooers v. Wait, 3 Wend. (N. Y.) 104, Finch's Cas. 466, 20 Am. Dec. 667; Bewick v. Whitfield, 3 P. Wms. 267, 1 Gray's Cas. 574; Lushington v. Boldero, 15 Beav. 1, 1 Gray's Cas. 584, Finch's Cas. 468; White v. Cutler, 17 Pick. (Mass.) 248, Finch's Cas. 447; Bulkley v. Dolbeare, 7 Conn. 232; Richardson v. York, 14 Me. 216; Johnson v. Johnson, 18 N. H. 594, Finch's Cas. 445; Lane v. Thompson, 43 N. H. 320; Williamson v. Jones, 43 W. Va. 562.

The exceptions to this general rule, established in the English courts of equity, apply in the case of timber cut on land which is settled for life and in remainder, and have little application in this country. They exist in the case of cutting by collusion between the life tenant and a remainderman, to the injury of one whose es

265

A tenant is entitled to the proceeds of such wood as may be rightfully severed by him, whether he makes the severance, or it is the result of a windstorm or other action of the elements;268 and the same principle applies to the proceeds of other acts which do not involve waste. So, in the case of a tenancy without impeachment of waste, the proceeds of trees or minerals severed from the land, either by the elements or by a stranger, belong to the tenant, as if they were severed by him;207 and he is also, upon the vesting of his estate in possession, entitled to the proceeds of a severance made during the possession of previous tenants for life, unimpeachable of waste, under the same settlement.268

§ 257. Waste by cotenant.

While, at common law, there was no right of action in favor of one tenant in common against a cotenant for waste

tate of inheritance vests subsequently, in which case the latter is protected, and also when the cutting is by order of court, or the court ratifies the cutting, in which cases the proceeds are settled so as to follow the land itself, the life tenant thus receiving the income. See Garth v. Cotton, 1 Ves. 546, 1 White & T. Lead. Cas. Eq. 961; Hony. wood v. Honywood, L. R. 18 Eq. 306, 1 Gray's Cas. 598; Gent v. Harrison, Johns. 517, 1 Gray's Cas. 589; Lushington v. Boldero, 15 Beav. 1, 1 Gray's Cas. 584, Finch's Cas. 468.

In England, while timber wrongfully cut by the tenant belongs to the inheritance, other wood cut by him under such circumstances that the cutting is waste belongs, at least at law, to the tenant himself. Honywood v. Honywood, L. R. 18 Eq. 306, 1 Gray's Cas. $98.

265 Clement v. Wheeler, 25 N. H. 361; Keeler v. Eastman, 11 Vt. 293; Proffitt v. Henderson, 29 Mo. 325; Crockett v. Crockett, 2 Ohio St. 180.

266 Bateman v. Hotchkin, 31 Beav. 486, 1 Gray's Cas. 574, note; Herlakenden's Case, 4 Coke, 63a; Bowles' Case, 11 Coke, 79b, 1 Gray's Cas. 564.

267 Bowles' Case, 11 Coke, 79b, 1 Gray's Cas. 564; Bewes, Waste, 151; Anonymous, Mosely, 237; In re Barrington, 33 Ch. Div. 523. 268 Gent v. Harrison, Johns. 517, 1 Gray's Cas. 589; Lowndes v. Norton, 6 Ch. Div. 139.

committed by the latter, this right was given by an early statute.209 There are in some states in this country some what similar statutes giving a right of action to a tenant in common or joint tenant against his cotenant on account of waste committed by the latter.270 In some states there is such a right of action, it seems, independently of statute.2"1 The cutting of timber may thus give a right of action to a cotenant if carried on to such an extent as to diminish the value of the property, and if not within the limits of its reasonable use and enjoyment. 272 Since, however, each tenant is entitled to the possession and enjoyment of the common property, acts of one tenant cannot, it seems, be regarded as waste, unless they amount in effect to an ouster of the other, or a destruction of the common property.2

278

An injunction may issue to restrain waste by a cotenant when otherwise irreparable injury might result, but generally, as a cotenant is entitled to the possession and use of the land, an injunction will not issue.274

269 St. Westminster II. (13 Edw. I., A. D. 1285) c. 22. See Co. Litt. 200a, 200b; 2 Cruise, Dig. tit. 18, c. 1, § 65; Id. tit. 20, § 9; Wil kinson v. Haygarth, 12 Q. B. 837, 6 Gray's Cas. 646.

270 McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 49 Am. Rep. 687, Finch's Cas. 396; Murray v. Haverty, 70 Ill. 318; Maxwell v. Maxwell, 31 Me. 184, 50 Am. Dec. 657; Benedict v. Torrent, 83 Mich. 181, 21 Am. St. Rep. 589; Cosgriff v. Dewey, 164 N. Y. 1; Childs v. Kansas City, St. J. & C. B. R. Co. (Mo.) 17 S. W. 954; Cecil v. Clark 47 W. Va. 402; Morrison v. Morrison, 122 N. C. 598. See 1 Stimson's Am. St. Law, § 1377.

271 Dodge v. Davis, 85 Iowa, 77; Childa v. Kansas City, St. J. & C. B. R. Co., 117 Mo. 414.

272 Martyn v. Knowllys, 8 Term R. 145, 6 Gray's Cas. 645; Maxwell v. Maxwell, 31 Me. 184, 50 Am. Dec. 657; Benedict v. Torrent, 83 Mich. 181, 21 Am. St. Rep. 589; Elwell v. Burnside, 44 Barb. (N. Y.) 447; Johnson's Adm'r v. Johnson, 2 Hill Eq. (S. C.) 277, 29 Am. Dec. 72, Finch's Cas. 398.

273 Co. Litt. 322; McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 49 Am. Rep. 687, Finch's Cas. 396. See Jacobs v. Seward, L. R. 5 H. L. 464.

274 Hole v. Thomas, 7 Ves. 589; Russell v. Merchants' Bank of

VII. BOUNDARIES.

Equity may appoint a commission to determine the boundary line between adjoining owners, if there is some ground other than the uncertainty of the boundary for the interposition of equity. By statute, likewise, in some states, an owner may take proceedings to have his boundary determined.

An oral agreement between adjoining owners, settling a disputed boundary line, is valid, at least if followed by possession in accordance therewith.

In many states continued recognition by adjoining owners of a certain line as the boundary line between their lands is conclusive upon both.

258. Judicial determination.

The questions most frequently arising in connection with the subject of the boundaries of land involve their ascertainment with reference to a description in a particular conveyance; that is, the determination of the exact limits of the tract conveyed. These questions will be discussed in a subsequent part of the work in connection with conveyances of land.275 The question whether the government or the littoral or riparian proprietor is the owner of land under water is frequently discussed as a matter of boundary, but it has seemed preferable to treat it separately as a question whether the ownership of the submerged land is a right incident to the ownership of the littoral or riparian land.276

There is, apart from statute, no proceeding at law by which one owner of land can obtain an adjudication as to the proper location of a boundary line, as between him and the adjoin

Lake City, 47 Minn. 286, 28 Am. St. Rep. 368; Obert v. Obert, 5 N. J. Eq. 397; Mott v. Underwood, 148 N. Y. 463, 51 Am. St. Rep. 711; McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 49 Am. Rep. 687, Finch's Cas. 396.

275 See post, §§ 387-393.

76 See post, §§ 264-267,

ing owner, though he has a remedy by trespass or ejectment for disregard of the proper line by the latter. 277

A court of equity will, in some cases, issue a commission for the determination of a boundary line, but this will not be done unless there is some ground for equitable interference other than the uncertainty of the boundary.278 Such equitable ground for the issuance of a commission exists when the effect will be to avoid a multiplicity of suits,279 and also when one of the parties is in the relation of tenant to the one seeking relief, and therefore under an obligation to preserve the boundary between the land of his landlord and any land adjacent thereto which he may own.

280

In many of the states, jurisdiction is expressly given by statute to particular courts to ascertain and establish boundary lines which are uncertain or in dispute, by means of officials to be named, frequently called "processioners," who, after investigating the question of the boundary, report thereon to the court, which may or may not approve their finding.281

277 2 Leake, 10; Sedgwick & W. Trial of Title to Land, § 865.

278 3 Pomeroy, Eq. Jur. § 1384; Wake v. Conyers, 1 Eden, 331, 2 White & T. Lead. Cas. Eq. 850; Miller v. Warmington, 1 Jac. & W. 492; Wetherbee v. Dunn, 36 Cal. 249; Perry v. Pratt, 31 Conn. 433; Doggett v. Hart. 5 Fla. 215, 58 Am. Dec. 464; De Veney v. Gallagher, 20 N. J. Eq. 33; Norris' Appeal, 64 Pa. St. 275; Hough v. Martin, 22 N. C. 379, 34 Am. Dec. 403; Wolfe v. Scarborough, 2 Ohio St. 361; Stuart's Heirs v. Coalter, 4 Rand. (Va.) 74, 15 Am. Dec. 731, note; Cresap v. Kemble, 26 W. Va. 603.

279 Wake v. Conyers, 1 Eden, 331, 2 White & T. Lead. Cas. Eq. 850; Bute v. Glamorganshire Canal Co., 1 Phillip, 681; Culver v. Rodgers, 33 Ohio St. 537; De Veney v. Gallagher, 20 N. J. Eq. 33; Boyd v. Dowie, 65 Barb. (N. Y.) 237.

280 Attorney General v. Fullerton, 2 Ves. & B. 264; Spike v. Harding, 7 Ch. Div. 871.

281 See 4 Am. & Eng. Enc. Law (2d Ed.) 842; Perry v. Pratt, 31 Conn. 433; Love v. Morrill, 19 Or. 545; Gates v. Brooks, 59 Iowa, E10; Washington Co. v. Matteson, 11 R. I. 550; Atkins v. Huston,