Rule granted.

Leighton V. Leighton

32 Maine, 399. - 1851.

Wells, J. - The plaintiff in his bill alleges, that the defendant, Leighton, has committed strip and waste upon his land, described in the bill, by cutting and hauling away the wood and timber growing on it; that he has commenced an action of trespass against the defendant, which is now pending, and that both of the defendants have expressed their determination and intention, and have made preparations to commit further strip and waste by putting on teams and taking off the wood and timber.

The defendants have demurred to the bill, and the question arises whether it can be maintained. The act done was a trespass, and those threatened to be done were of the same character.

This court has equity jurisdiction in those cases only in which it is conferred by statute, and it is expressly given in the case of waste, when there is not a plain and adequate remedy at law. Ch. 96, § 10. But the remedy given by an action of waste at the common law was confined to cases where there was a privity of estate. 2 Black. Com. 281. Our statute, chap. 129, § 1, gives the same action, to the person having the next immediate estate of inheritance, against tenants in dower, by the curtesy, tenant for life or years, in which he shall recover the place wasted, and the amount of damages done to the premises. The statute thus recognizes the privity of estate as the foundation of the action, and defines with accuracy its limits. The Legislature then gives the party injured a further remedy in equity.

Formerly, courts having general equity jurisdiction, confined the exercise of it in relation to waste, to such as was technically so called, but it was afterwards extended to trespasses where the mischief was irreparable, and operated as a permanent injury to the estate. Story's Eq. Jur., § 928; Thomas v. Oakley, 18 Vesey, 184. In Stevens v. Beekman, 1 Johns. Ch. 317, it was doubted whether this extension of the ordinary jurisdiction of the court would be productive of public convenience, and in Jerome v.Ross, 7 Johns. Ch. 345, while the jurisdiction was admitted to exist in that court, exercising full chancery powers, it was stated that it ought to be restrained to those cases where the property itself was of peculiar value, and could not well admit of due recompense, and would be destroyed by repeated acts of trespass. It is thus apparent, that courts of general chancery jurisdiction exercise it in relation to a certain class of trespasses, and the question arises whether it has been given to this court. The same question has arisen upon a smilar statute in Massachusetts, Attaquin v. Fish, 5 Metc. 140, and the rule laid down there as having been acted upon, in the construction of statutes conferring chancery jurisdiction upon the court, is, never to take cognizance of any subjects which are not expressly brought within it by statute, and not to extend jurisdiction to such subjects by implication, and certainly not when the implication is doubtful. And it was decided that the equitable powers given concerning waste extended to cases of technical waste only, and not to those trespasses which courts that have full chancery powers restrain by injunction.

Acting upon this rule, to which no objection is apparent, we must confine the jurisdiction to cases of technical waste. We cannot find in the statute any clear and satisfactory intention to confer a more enlarged power. Because courts of equity in the plenitude of their power have gone beyond legal waste, a term well defined and understood in the law, and have granted relief and injunctions in cases of trespasses committed and threatened to be committed, this court having but a limited jurisdiction, cannot feel justified in pursuing the same course.

Nor does there appear to be any pressing necessity for such action. A party in possession of his property has the legal right to protect and defend it. If his timber is cut down, he may take or replevy it, or recover damages in an action of trespass. And by statute, chap. 169, he may have a criminal process against any one who has threatened to commit an offense against his person or property, and if there is just cause to apprehend and fear the commission of such offense, the person against whom the complaint is made may be put under bonds, with sufficient sureties to keep the peace. And when a party is out of possession of real estate, and has commenced an action to recover it, and the person against whom the action is brought shall commit any act of waste, or shall threaten to do so, by the Act of July 10, 1846, chap. 188, the court in which such action is pending may issue an injunction to stay such waste.

The remedies afforded by the law to the plaintiff are so ample, that there is less regret of a want of jurisdiction by which his bill could be sustained. This cannot be viewed as a bill for discover', for it is not averred that the facts rest within the knowledge of the defendant alone, and are incapable of other proof. Woodman v. Freeman, 25 Maine, 546.

Bill dismissed with costs.1

Sawyer, J., in

Parrott V. Barney

2 Abbott (U. S.), 197. - 1870.

As to the waste upon the premises demised to the defendants, I think that, upon the facts found, the defendants are liable; although, as will hereafter appear, there was, in my judgment, no negligence on their part. There was, doubtless, fault on the part of those who delivered the explosive substance to defendants for carriage over their express route, without informing them of the dangerous character of the article, for which they may be liable to defendant. The rule seems to be established, that with respect to liability for waste, the tenant is in a position analogous to that of a common carrier, and without some special agreement to the contrary, responsible for all waste, however or by whomsoever committed, except it be occasioned by act of God, the public enemy, or the act of the reversioner himself. 4 Kent, Com. 77; Attersoi v. Stevens, 1 Taunt. 182; Cook v. Chamnplan Transportation Co., 1 Denio, 91; 2 Eden, Inj., 198, and notes. In White v. Wagner, 4 Harr. & J., this doctrine was carried out in an extreme case. The tenant is held responsible to the landlord, and left to his remedy over against the delinquent party. The liability does not depend on mere negligence, but it is imposed on the same grounds of public policy as those upon which the strict liabilities of common carriers are made to rest.2