48 Clemence v. Steere, 1 R. I. 272.
49 Keepers, etc., of Harrow School v. Alderton, 2 Bos. & P. 86.
50 Pynchon v. Stearns, 11 Metc. (Mass.) 304; Clemence v. Steere, 1 R. I 272; Alexander v. Fisher, 7 Ala. 514. Cf. Chase v. Hazelton, 7 N. H. 171.
We have seen that the tenant may take a reasonable amount of wood for estovers,51 and the right may extend further as to the "clearing" of woodland for purposes of cultivation.52 Whether this or any other cutting of timber is waste depends in each case on the customs of the locality and the condition of the estate.53 A. tenant for life cannot cut timber to sell,54 except in cases where that has been the way of enjoying the land.55
Same - Mines and Quarries.
Whether or not it is waste to take minerals, stone, clay, or gravel depends on the previous use of the premises. If such has been the manner of enjoying the profits of the estate, the tenant may continue it;56 but he must not open new mines or quarries.57 Nor can the one entitled to the next estate work the mines and
51 Ante, p. 61. Padelford v. Padelford, 7 Pick. (Mass.) 152; Calvert v. Rice, 91 Ky. 533, 16 S. W. 351; Gardiner v. Derring, 1 Paige (N. Y.) 573; Smith v. Jewett, 40 N. H. 530; Miles v. Miles, 32 N. H. 147.
52 Drown v. Smith, 52 Me. 141; Ward v. Sheppard, 2 Hayw, (Tenn.) 461; Owen v. Hyde, 6 Yerg. (Tenn.) 334; Disher v. Disher, 45 Neb. 100, 63 N. W. 368; Davis v. Clark, 40 Mo. App. 515. But cf. Chase v. Hazelton, 7 N. H. 171. And can sell the wood so cut. Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 527; Keeler v. Eastman, 11 Vt. 293; Crockett v. Crockett, 2 Ohio St. 180; Davis v. Gilliam, 5 Ired. Eq. (N. C.) 308.
53 Mccullough v. Irvine's Ex'rs, 13 Pa. St. 438; Keeler v. Eastman, 11 Vt. 293. Cf. Parkins v. Coxe, 2 Hayw. (N. C.) 339; Carr v. Carr, 4 Dev. & B. (N. C.) 179.
54 Johnson v. Johnson, 18 N. H. 594; Davis v. Gilliam, 5 Ired. Eq. (N. C.) 308; Miller v. Shields, 55 Ind. 71; Parkins v. Coxe, Mart. & H. (N. C.) 517; Clemence v. Steere, 1 R. I. 272; Kidd v. Dennison, 6 Barb. (N. Y.) 9.
55 Clemence v. Steere, 1 R. I. 272; Ballentine v. Poyner, Mart. & H. (N. C.) 268; Den v. Kinney, 5 N. J. Law, 552. And cf. Carr v. Carr, 4 Dev. & B. (N. C.) 179. See, also, the exception in note 44.
56 Astry v. Ballard, 2 Mod. 193; Neel v. Neel, 19 Pa. St. 323; Sayers v. Hoskinson, 110 Pa. St. 473, 1 Atl. 308. Cf. Russell v. Bank, 47 Minn. 286, 50 N. W. 22S; Billings v. Taylor, 10 Pick. (Mass.) 460; Reed's Ex'rs v. Reed, 16 N. J. Eq. 248; Lynn's Appeal, 31 Pa. St. 44. And see Irwin v. Covode, 24 Pa. St 162. The life tenant is allowed new shafts into old veins. Crouch v. Puryear, 1 Rand. (Va.) 258; Clavering v. Clavering, 2 P. Wms. 388.
57 Gaines v. Mining Co., 32 N. J. Eq. 86; Owings v. Emery, 6 Gill. (Ma.) 260. Cf. Coates v. Cheever, 1 Cow. (N. Y.) 460; Williamson v. Jones, 39 W. Va. 231, 19 S. E. 436; Childs v. Railway Co., 117 Mo. 414, 23 S. W. 373.
§ 37) quarries on the land during the continuation of the life tenant's interest without the consent of the latter.58
Formerly there was a very strict rule that almost any alteration in a building would be waste;59 but this is now relaxed, and the general test is applied as in other cases, - the question being, has the value of the reversion been impaired?60 It would, of course, be waste for the tenant to remove things which he had made real fixtures by annexation.61 But waste in respect to buildings may be committed by suffering them to become ruinous for want of repair.62 This is almost the only case in which permissive waste occurs. As already stated,63 wood may be cut to keep the buildings and fences in repair; but the duty to repair exists when there is no wood.64 However, the tenant is not bound to put in repair buildings which are ruinous when he takes the premises.65 The tenant is liable for negligent, but not for accidental, fires.66
Same - Liability for Waste by Strangers, etc.
The tenant is liable for waste committed by strangers,67 but not for injury resulting from act of God or the law or the public enemy 68
58 See Kier v. Peterson, 41 Pa. St. 357.
59 This was on the ground that such change tended to destroy evidences of identity. Huntley v. Russell, 13 Q. B. Div. 572, 588. It made no difference that such changes increased the value of the building. City of London v. Greyme, Cro Jac. 181. Cf. Douglass v. Wiggins, 1 Johns. Ch. 435.
60 Agate v. Lowenbein, 57 N. Y. 604; Doe v. Earl of Burlington. 5 Barn. & Adol 507; Young v. Spencer, 10 Barn. & C. 145; Hasty v. Wheeler, 12 Me. 434.
61 Mccullough v. Irvine, 13 Pa. St. 438; Dozier v. Gregory, 1 Jones (N. C.) 100. Cf. Clemence v. Steere, 1 R. I. 272.
62 Abbot of Sherbourne's Case, Y. B. 12 Hen. IV. 5. Cf. Dozier v. Gregory, 1 Jones (N. C.) 100. 63 Ante, p. 61. 64 Co. Litt. 53a.
65 Wilson v. Edmonds, 24 N. H. 517; Clemence v. Steere, 1 R. L 272.
66 Anon., Fitzh. Abr. "Waste," pl 30; Cornish v. Strutton, 8 B. Mon. (Ky.) 586.
67 Fay v. Brewer, 3 Pick. (Mass.) 203; Cook v. Transportation Co., 1 Denio (N. Y.) 91; Austin v. Railway Co., 25 N. Y. 334. Cf. Beers v. Beers, 21 Mich. 464.
68Co. Lltt 53a, 54a; 1 Washb. Real Prop. (5th Ed.) 156; Pollard v. Shaaffer,
Same - Remedies for Waste.
When waste has been committed, compensation may be recovered for the injury done; or, if it is threatened, it may be restrained by injunction.69 When trees, ore, etc., have been wrongfully severed, they belong to the reversioner or remainder-man as personal property, and he can maintain appropriate actions therefor.70 There were formerly many technical rules arising out of the common-law actions for waste, but the matter is now largely changed by statute.71 By and against whom actions for waste lie is also a subject of statutory regulation.72 By the statute of Gloucester73 a penalty of treble damages and forfeiture of the place wasted was imposed, and forfeiture and double or treble damages are imposed by statute in many states.74