A tenant for lifehath a freehold.
Estate during widowhood.
(a) Stat. 6 Anne, c. 18, s. 5.
(b) Litt. s. 57.
(c) Watk. Desc. 108 (113, 4th ed.); 2 Black. Com. 104.
(d) Bract, lib. 2, c. 9, fol. 2G b; lib. 4, tr. 3, c. 9, par. 3, fol. 263 a; Fleta, lib. 3, c. 12, s. 6; lib. 5, c. 5, s. 15.
(e) Co. Litt. 42 a; 2 Black; Com. 121.
Every tenant for life, unless restrained by covenant or agreement, has the common right of all tenants to cut wood for fuel to burn in the house, for the making and repairing of all instruments of husbandry, and for repairing the house, and the hedges and fences (l), and also the right to cut underwood and lop pollards in due course (m). But he is not allowed to cut timber, or to commit any other kind of waste (n); either by voluntary destruction of any part of the premises, which is called voluntary waste, or by permitting the buildings to go to ruin, which is called permissive waste (o). Of late, however, doubts have been thrown on the liability of a tenant for life for waste which is merely permissive; and the Courts of Equity have refused to interfere in such cases (p). But there appears to be no sufficient ground for doubting the tenant's liability in a court of law (q). So a tenant for life cannot plough up ancient meadow land (r); and he is not allowed to dig for gravel, brick, or stone, except in such pits as were open and usually dug when he came in (s); nor can he open new mines for coal or other minerals, nor cut turf for sale on bog lands; for all such acts would be acts of voluntary waste. But to continue the working of existing mines, or to cut turf for sale in bogs already used for that purpose, is not waste; and the tenant may accordingly carry on such mines and cut turf in such bogs for his own profit (t). By an old statute (u) the committing of any act of waste was a cause of forfeiture of the thing or place wasted, in case a writ of waste was issued against the tenant for life. But this writ is now abolished (u); and a tenant for life is now liable only to damages in an action at law or suit in equity (w) for waste already done, or to be restrained by an injunction obtained by a suit in equity from cutting the timber or committing any other act of waste, which he may be known to contemplate. And where an action at law has been brought a writ of injunction may now be obtained, from the court of law in which the action has been brought, against the repetition or continuance of the injury (x). If any of the timber is in such an advanced state that it would take injury by standing, the Court of Chancery will allow it to be cut, on the money being secured for the benefit of the persons entitled on the expiration of the life estate; and the Court will allow the interest of the money to be paid to the tenant during his life (y). And the act to facilitate leases and sales of settled estates (z) now empowers the Court of Chancery, if it think proper, to authorize a sale of any timber, not being ornamental timber, growing on any settled estates. If, however, the estate is given to the tenant by a written instrument (a) expressly declaring his estate to be without impeachment of waste, he is allowed to cut timber in a husbandlike manner for his own benefit, to open mines, and commit other acts of waste with impunity (b); but so that he does not pull down or deface the family mansion, or fell timber planted or left staiiding for ornament, or commit other injuries of the like nature; all of which are termed equitable waste; for the Court of Chancery, administering equity, will restrain such proceedings (c).
(f) Co. Litt. 132 a; 2 Black. Com. 121.
(g) 1 Black. Com. 132.
(h) Co. Litt. 3 b, n. (7), 132 b, n. (1); 1 Black. Com. 132; stat. 31 Geo. III. c. 32, s. 17; 10 Geo. IV. c. 7, ss. 28 - 37; 2 & 3 Will. IV. c. 115, s. 4. See also Anstey's Guide to the Laws affecting Roman Catholics, pp. 24 - 27; 23 & 24 Vict. c. 134, s. 7; Re Metcalfe's Trust.i, '1 De (lex, Jones & Smith, J 22.
(i) Co. Litt. 132 b.
(j) 4 Black. Com. 319, 380;
Watk. n. 123 to Gilb. Ten.
(k) By Stat. 33 & 34 Vict. c. 23.
(l) Co. Litt. 41 b; 2 Black. Com. 35, 122.
(m) Phillips v. Smith, 14 M. & W. 589. As to thinnings of young timber, see Pidgeley v. Rowling, 2 Coll. 275; Bagot v. Bagot, 32 Beav. 509, 518; Earl Cowley v. Wellesley, M. R., Law Rep., 1 Eq. 656; 35 Beavan, 635.
(n) Co. Litt. 53 a; Whitfield v. Bewit, 2 P. Wms. 241; 2 Black. Com. 122, 281; 3 Black. Com. 224.
Writ of waste abolished.
(0) Co. Litt. £8 a.
(p) Porrys v. Blagrave, 4 De Gex, M. & G. 448, 458; Warren V. Rudall, 1 John. & Hem. 1.
(q) Yellowly v. Goner, 11 Ex. 274, 293.
(r) Simmons v. Norton, 7 Bing. 648. See Duke of St. Albans v. Skijmith, 8 Beav. 354.
(s) Co. Litt. 53 b; Viner v.
Vaughan, 2 Beav. 466.
(t) Co. Litt. 54 b; Coppinger v. Gubbins, 3 Jones & Lat. 397.
(u) The Statute of Gloucester, G Edw. I. c. 5; 2 Black. Com. 283; Co. Litt. 218 b, n. (2).
(v) By stat. 3 & 4 Will. IV. c. 27, s. 36.
(w) Stat. 21 & 22 Vict. c. 27, ss. 2, 3.
Without impeachment of waste.
(x) Stat. 17 & 18 Vict. c. 125, s. 79.
(y) Tooker v. Annesley, 5 Sim. 235; Waldo v. Waldo, 7 Sim. 261; 12 Sim. 107; Tollemaehe v. Tollemaehe, 1 Hare, 456; Consett v. Bell, 1 You. & Coll. New Cases, 569; Gent v. Harrison, Johnson, 5I7.
(z) Stat. 19 & 20 Vict. c. 120, s. 11.
(a ) Duwman's case, 9 Hep. 10 b.
(b) Lewis Bowle's case, II Rep. 82 b; 2 Black.Com.288; Burges v. Lamb, l6 Vea. L85; Cholmeley v. Pazton,8 Bine. 211; I0 Barn.
& Cress. 564; Davies v. Wescomb, 2 Sim. 425; Woolf v. Hill, 2 Swanst. 149; Waldo v. Waldo, 12 Sim. 107.
(c) 1 Fonb. Eq. 33, n.; Marquis of Downshire v. Lady Sandys, 6 Ves. 107; Burges v. Lamb, 16 Ves. 183; Day v. Merry, 16 Ves. 375 a; Wellesley v. Wellesley, 6 Sim. 497; Duke of Leeds v. Earl Amherst ,2' Phil. 117; Morris v. Morris, 15 Sim. 505; 3 De Gcx & Jones, 323 Mickletmait v. Micklethrvait, I De Gex& Jones, 504.