§ 1226. The tenant is bound to treat the premises demised to him in such a manner that no injury may accrue to them other than that which is necessary, and incidental to their use. He is, therefore, bound to cultivate the soil properly, to preserve the timber, and to make proper repairs, although there be no express agreement to that effect; and a breach of such implied covenant renders him liable for waste.1
§ 1227. It is a general principle that the law will not consider that to be waste which is not in any way prejudicial to the inheritance, although the presumption is that any change in the nature of the thing is waste.2 So, also, all waste which results from inevitable accident or overwhelming necessity is excusable; as if a house be prostrated by tempest or be burnt by lightning, or trees be blasted and thrown down by violent winds. In such cases he is only bound to take proper precautions to prevent injuries, and to repair them when made.3 But, although an injury occasioned by inevitable accident be not ordinarily considered waste, yet, if the opportunity or occasion of such accident were afforded by the neglect or default of the tenant, it will be treated as waste.4 Thus, if the premises be left in so ruinous a condition that they are thrown down in a heavy wind, under circumstances in which, if they had been kept in proper repair, they would have been uninjured, the tenant is liable for waste. So, also, if, from neglect in properly closing the blinds, the glass is broken by hail, or if, through want of properly repairing lightning rods when the tenant is bound so to do, the house be burnt, the tenant is liable therefor as waste. So, also, if, after injury by inevitable accident, the tenant omit to repair, it is waste.1
1 Co. Litt. 53, a, b.
2 Pynchon v. Stearns, 11 Met. 304; Bacon, Abr. Waste, C. 1.
3 Bacon, Abr. Waste, E.; Com. Dig. Waste, E. 5.
4 Bacon, Abr. Waste, E. 1, 2; Anon., Moore, 62; Co. Litt. 53, a, Com. Dig. Waste, E. 5.
§ 1228. Waste is either voluntary or permissive; the one being an offence of commission, and the other of omission.2 Waste may be incurred in respect of, - 1st. The Soil; 2d. The Buildings; 3d. The Trees and Fences; 4th. The Livestock.3
§ 1229. And, first, as to the Soil. It is voluntary waste to dig and carry away the soil; or to open mines, gravel, or pits;4 or materially to change the quality of the soil, or the nature of its produce; as by turning pasture-land into arable land, or garden ground into tillage, or ploughing up strawberry beds, or sowing grain in hop grounds.5 It is not waste, however, to dig in mines or pits which are already open;6 or to dig pits for the purpose of draining;7 or to take clay or marl for the purpose of repairing the buildings or improving the land.8
§ 1230. It is permissive waste to the soil to suffer it to fall into decay, or to be overflowed through negligence in allowing the embankments to fall into decay. But, if the overflowing be caused by tempest, the tenant will only be liable to repair it.9 So, also, the tenant is bound to keep the soil in a proper state of cultivation, to till it in a husband-like manner, to observe the ordinary mode of cultivation and the usage and custom of the neighborhood, or he will be liable for waste.1
1 Co. Litt. 53, a.
2 Com. Dig. Waste, D. 1 to D. 5; Co. Litt. 53 b.
3 Com. Dig. Waste, D. 2 to D. 5.
4 Co. Litt. 53, 6; Nowell v. Donning, 2 Roll. Abr. 816, 1. 15; Saunders's Case, 5 Rep. 12; Manwood's Case, Moore, 101; Moyle v. Mayle, Owen, 67; Astry v. Ballard, 2 Mod. 193; Com. Dig. Waste, D. 4.
5 Tresham v. Lamme, 2 Roll. Abr. 814,1. 50; Harrow School v. Al-derton, 2 B. & P. 86; Watherell v. Howells, 1 Camp. 227.
6 Saunders's Case, 5 Rep. 12.
7 Altbam's Case, 2 Roll. Abr. 820,1. 23.
8 Co. Litt. 53; Moyle v. Mayle, Owen, 67.
9 Co. Litt. 53, a, 63; Roll. Abr. 816,1. 32; Anon., Moore, 62; Griffith's Case, Ib. 69; Anon., Ib. 73; Com. Dig. Waste, D. 4.
§ 1231. Second, as to Buildings. It is voluntary waste to buildings to pull them down, to unroof them,2 or to alter the house to the lessor's prejudice; as, if he convert a hall into a stable,3 or throw two rooms into one,4 or take away such things as are fastened and fixed to the freehold, or such buildings as are let into the ground, whether they were erected by the tenant or not.6 The tenant may, however, by proving that such changes were beneficial to the lessor, contradict the presumption of waste.6
§1232. The tenant may, however, lawfully remove the following things wherever he himself has erected them: 1st. Mere personal things not fixed to the freehold; 2d. Buildings not let into the ground, but standing on stocks or rollers;7 3d. Things merely ornamental, although fixed to the freehold,8 as hangings,9 pier-glasses,10 wainscots fixed with screws only,11 beds fastened to the ceiling or wall with ropes or nails,12 marble chimney-pieces;13 4th. Things put up slightly for domestic use, and capable of removal without material injury to the estate, and without loss of their essential value and character, such as cabinets,1 bells,2 blinds,3 stoves,4 grates,5 and gas fixtures;6 5th. Fixtures erected for the purposes of trade or manufactures solely,7 unless there is a covenant to the contrary, such as a baker's oven,8 a dyer's9 or soap-boiler's vats,10 a varnish house,11 cider-mills,12 and furnaces.13
1 Powley v. Walker, 5 T. R. 373; Brown v. Crump, 1 Marsh. 567; 6 Taunt. 300; Legh v. Hewitt, 4 East, 154; Webb v. Plummer, 2 B. & Ald. 746; Horsefall v. Mather, Holt, N. P. 7; White v. Nicholson, 4 M. & G. 98.
2 Co. Litt. 53, a; Com. Dig. Waste, D. 2. See Parker v. Goddard, 39 Me. 144.
3 Greene v. Cole, 2 Saund. 252; 1 Lev. 309.
4 2 Roll. Abr. 815, 1. 37; Com. Dig. Waste, D. 2.
5 Elwes v. Maw, 3 East, 38; Poole's Case, 1 Salk. 368; Wyndham v. Way, 4 Taunt. 316; Com. Dig. Waste, D. 2. See Doak v. Wiswell, 38 Me. 570; Wadleigh v. Janvrin, 41 N. H. 503.
6 Com. Dig. Waste, D. 2; Bacon, Abr. Waste, C. 1.
7 Cutting v. Tufmal, Bull. N. P. 34; Wansbrough v. Maton, 4 Ad. & El. 884; The King v. Inhabitants of Otley, 1 B. & Ad. 161; Amos on Fixtures, 3, 4, 5, note a. See Landon v. Platt, 34 Conn. 517.
8 Buckland v. Butterfield, 4 Moore, 440.
9 Beck v. Rebow, 1 P. Wms. 95; Elwes v. Maw, 3 East, 38. 10 Beck v. Rebow, 1 P. Wms. 95.
11 Ex parte Quincy, 1 Atk. 477. 12 Ibid.
13 Ibid. Lawton v. Salmon, 1 H. Bl. 259, note; Elwes v. Maw, 3 East, 38; Leach v. Thomas, 7 C. &P. 328; Grymes v. Boweren, 6 Bing. 439.
§ 1233. Permissive waste to buildings consists in omitting to keep them in tenantable repair; as by suffering the timbers to rot through neglect properly to protect them, or the ground-sill to decay from neglect to secure a moat or ditch,14 or the walls to fall into decay for want of plastering.15
§ 1234. Trees and Fences. Timber is part of the inheritance. It is waste to cut it down or to lop it, so as to occasion its decay. The age at which trees become timber is twenty years. The species of trees which constitutes timber depends, however, in a measure on local custom. So, also, to cut down trees, not being timber, but growing in defence of the house, is waste. So, also, it is waste to cut down fruit-trees in an orchard or garden.1
1 Amos on Fixtures, 278, n.
2 Ibid. As to a factory bell, see Alvord Carriage Man. Co. v. Gleason, 36 Conn. 86.
3 Colegrave v. Dias Santos, 2 B. & C. 77; Greene v. First Parish, 10 Pick. 504.
4 Rex v. Inhabitants of St. Dunstan, 4 B. & C. 686; Greene v. First Parish, 10 Pick. 504; Gray v. Holdship, 17 Serg. & R. 415; Tuttle v. Robinson, 33 N. H. 104.
5 Rex v. Inhabitants of St. Dunstan, 4 B. & C. 686.
6 Lawrence v. Kemp, 1 Duer, 363; Shaw v. Lenke, 1 Daly, 487 (1865).
7 Cresson v. Stout, 17 Johns. 116; Gale v. Ward, 14 Mass. 352; Raymond v. White, 7 Cow. 319; Lemar v. Miles, 4 Watts, 330; Reynolds v. Shuler, 5 Cow. 323. For a discussion of the subject of Fixtures, see Hellawell v. Eastwood, 6 Exch. 295; Wiltshear v. Cottrell, 1 El. & B. 674; 18 Eng. Law & Eq. 147; Doak v. Wiswell, 38 Me. 570; Wadleigh v. Janvrin, 41 N. H. 503; Burnside v. Twitchell, 43 N. H. 390; Capen v. Peckham, 35 Conn. 88; Longbottom v. Berry, Law R. 5 Q. B. 123; Climie v. Wood, Law R. 3 Exch. 257; 4 Id. 328; Bliss v. Whitney, 9 Allen, 114; Weston v. Weston, 102 Mass. 515.
8 Year-Book, 20 Henry Vtt 13 6; Winn v. Ingilby, 5 B. & Ald. 625.
9 Year-Book, 20 Henry VII. 13 b.
10 Poole's Case, 1 Salk. 368.
11 Penton v. Robart, 2 East, 88.
12 Lawton v. Lawton, 3 Atk. 14; s. c. 1 H. Bl. 259, n. a; Lord Dudley v. Lord Warde, Ambl. 113; Bacon, Abr. Waste, C. 86.
14 Com. Dig. Waste, D. 2; Sticklehorne v. Hatchman, Owen, 43. 15 Co. Litt. 53, a; 2 Roll. Abr. 815, 1. 31, 1. 42.
§ 1235. The old common law holds in especial protection every tree in the kingdom, delights in its beauty, and is jealous of its injury. To the lessee it gives the benefit of its cool shadow, wherewith to refresh himself, and to shelter his cattle from the burning heat. The fruit also which grows on its branches is bestowed upon him, but he is forbidden to cut or lop a limb, for any purpose, unless it be justified by strong necessity, and required for immediate use. The tenant is therefore allowed to cut timber trees wherewith to repair his house and fences, although he covenanted to repair at his own cost.2 But he is restricted to that which is necessary to keep the identical premises only in repair which were originally let, and is not allowed to cut trees to repair any new erections or additions made by him. So, also, he cannot cut wood for repairs occasioned by his own negligence.3 The timber cut for repairs must be specifically used for that purpose, and cannot be sold, though the proceeds be used for repair;4 unless the cutting down and sale were originally for the purpose of repairs, and the sale was an economical mode of making them, and the most for the benefit of all concerned.6 And a lessee for years may cut down dead wood and such trees as are neither timber trees, nor fruit-trees growing in an orchard or garden, nor trees growing in defence of the house.6
§ 1236. Live-Stock. It is waste to take or destroy so much live-stock as to unstock the dove-cot, warren, or park, so that less is left when the tenant leaves the premises than there was at the time of the demise. So, also, to fill up the pigeon-holes, so that the pigeons cannot build, is waste.1
1 Co. Litt. 53, a, b; 3 Roll. Abr. 817; Bacon, Abr. Waste, C. 2; Com. Dig. Waste, D. 3. See Padelford v. Padelford, 7 Pick. 152, in which all the cases are collected and discussed.
2 Anon., Moore, 22; Com. Dig. Waste, D. 5.
3 Co. Litt. 53, 6; Bacon, Abr. Waste, C. 2; Com. Dig. Waste, D. 5.
4 Co. Litt. 53, 6; Doe dem. Foley v. Wilson, 11 East, 56.
5 Loomis v. Wilbur, 5 Mason, 13.
6 Padelford v. Padelford, 7 Pick. 152; Co. Litt. 536; Bacon, Abr. Waste, C. 2; Com. Dig. Waste, D. 5.