c. Equitable waste.

Vane V. Lord Barnard

2 Vernon Chancery (Eng.;, 738. - 1716.

The defendant on the marriage of the plaintiff, his eldest son, with the daughter of Morgan Randyll, and 10,000 portion, settled inter alia Raby Castle on himself for life, without impeachment of waste, remainder to his son for life, and to his first and other sons in tail male.

The defendant, Lord Barnard, having taken some displeasure against his son, got two hundred workmen together, and of a sudden, in a few days, stript the castle of the lead, iron, glass-doors, and boards, etc., to the value of 3,000.

The court upon filing the bill, granted an injunction to stay committing of waste, in pulling down the castle; and now, upon the hearing of the cause, decreed, not only the injunction to continue, but that the castle should be repaired, and put into the same condition it was in, in August, 1714; and for that purpose a commission was to issue to ascertain what ought to be repaired, and a master to see it done at the expense and charge of the defendant, the Lord Barnard; and decreed the plaintiff his costs.

Stevens V. Rose

69 Michigan, 259. - 1888.

Long, J. - * * * It is claimed by the defendant that whether the defendant had a right or not to remove the building, as an ordinary tenant, during his tenancy, he had such right under his life lease; that the clause, " to have and to hold, to use and control as he thinks proper, during his natural life," removes all restrictions, so far as any of the acts indicated by the record are concerned; that the words, "to have and to hold," gave him certain legal rights in the land that were well known and well guarded, and by which he had his fire-wood, necessary timber for repairs, the full use of all the arable and pasture land, and his administrator was entitled to the usual growing crops if the tenant should die leaving any unharvested crops growing upon the place; that the mere tenant for life, under the words, " to have and to hold," having all these privileges, the addition of the words, "to use and control as he thinks proper," imply the widest authority, removing all limitations to the defendant's use of the leased premises, and have them, and everything upon them, so far as the lease governing the case, in his possession, with all the rights and authority of the owner of the land; and if there be any limitation or restriction that even a court of equity would control, in a lease without impeachment for waste, such restrictions are removed by the language employed here, and that such language is at least of equal force and significance as the words, " without impeachment of waste."

On the other hand, it is contended by counsel for plaintiff that the practice of leasing without impeachment of waste has not obtained in the United States, and, that being the case, the words used must very clearly import that the tenancy is to be without impeachment of waste, before a court will so construe them.

The action of waste under the old English practice was a remedy given for injury to lands, houses, woods, etc., by a tenant thereof for life or years, to the injury or prejudice of the heir, or of him in the reversion or remainder. It was either voluntary or permissive - the one by actual design; the other arising from mere negligence and want of sufficient care. The action was partly founded upon the common law, and partly founded upon the statute of Gloucester, and was a mixed action; real so far as it recovered the realty injured; and personal so far as it covered the damages for the injury. Originally, and under the old practice, the action was brought for both of these specific purposes, and, if waste was proved on the trial, the plaintiff recovered, not only the premises injured but also the damages he had sustained by reason of the injury.

The action for this double purpose, having fallen into disuse, was finally abolished in England by the statute of 3 and 4 William IV., c. 27. In this country, although adopted in some of the States, it has been but little used; having been, in practice, virtually superseded by the action on the case in the nature of waste for the recovery of damages merely, or by bill in equity. In our own State this action on the case is authorized by chapter 271, How. Stat., above cited. These provisions of our statute on this subject are in accordance with the legal practice which has been adopted, and long since fully established, in England and in this country.

Tenants for life, not made impeachable for waste by the person granting the estate, are liable for both commissive and permissive waste. The real intention, however, of the clause, " without impeachment for waste," is to enable the tenant to do many things, such as cutting wood, opening new mines, etc., which would otherwise at the common law amount to waste; but these words do not operate as a license to the tenant to destroy the estate, or to commit malicious waste, such as cutting down fruit-bearing trees, or trees which serve for shade or ornament. If he is tenant " without impeachment for waste," he has the same right to cut timber, work mines, etc., for his own use, as the owner of the inheritance; but those words do not justify him in demolishing the buildings, or doing that which operates as destructive or malicious waste. Wood, Landl. and Ten. p. 711, § 426; Leeds v. Anherst, 14 Sim. 357; Aston v. Aston, 1 Ves. Sr. 265; Fane v. Lord Barnard, 2 Vern. 738. The words are not to be treated as importing a license to destroy or injure the estate, but to do all reasonable acts, consistent with the preservation of the estate, which otherwise might in law be waste.

If, then, these words in the lease, "to have and to hold, to use and control as he thinks proper, for his benefit during his natural life," be construed as leasing without impeachment of waste, as defendant's counsel claim they must be, the defendant would have no right to tear down and carry away the buildings erected on the premises, under the circumstances of this case. The life tenant, even under a lease without impeachment for waste, owes a duty to the reversioner or remainderman to preserve in a reasonable manner the buildings, and all fruit and ornamental trees, on the estate; and he has no right to commit any malicious waste, or to destroy such buildings or trees. While there is no doubt he has a right to cut and take timber for his own use, the same as the owner of the inheritance, yet in this case it was contended by plaintiff, and evidence was offered tending to prove the fact, that these fourteen oak trees were left for ornament and shade; and the jury found, under questions put by defendant's counsel, that they were fit for other purposes than fire wood, and were not necessary to the defendant for such purpose, and thus, in effect, found that they were saved and kept for the purposes of ornament and shade. There was an abundance of timber only two miles distant from the dwelling of defendant, which was conveyed to him under the same lease, and from this he had a right to cut his fire-wood, and he had a right, also, to cut such other timber as he pleased, if the lease is one without impeachment of waste. These words were inserted in the lease for the purpose, clearly, of giving the tenant some greater rights than an ordinary life tenant. They are words seldom employed in leases, and they must be construed most strongly against the grantor.