The only analogy at all unfavorable to this view of the case is that of tenant in tail, with the reversion in the crown, and tenant in tail under an act of Parliament which precludes the barring of the entail. Such tenants in tail are considered dispunishable of waste; this being an incident of tenancy in tail, probably arising from the power which generally subsists of barring the entail, and it not having been thought fit to make an exception in respect of those rare cases in which the power of barring the entail is withheld. But in the Marlborough Case, 3 Madd. 498, although the court would not interfere on the mere ground that the tenant in tail was prohibited by statute from barring the entail; yet, having regard to the enactment "that Blenheim House should in all times descend and be enjoyed with the honors and dignities of the family." It was held that the court ought to interfere not only to prevent the destruction of the house, but also to protect the timber essential to the shelter and ornament of the house. 3 Madd. 549.
There is an analogy which entirely accords with the distinction made by the vice-chancellor in this decree between legal and equitable waste, viz., the case of "tenant in tail after possibility of issue extinct," who is dispunishable of legal waste in respect of the estate of inheritance which was once in him, but may be restrained by injunction from committing equitable waste, this being an abuse of his legal power.
For these reasons I think that the decree of the vice-chancellor, as he pronounced it, should in all respects be affirmed, and that the appeal must be dismissed with costs.1
1 In Matthews v. Hudson, 81 Ga. 120 (1888) it was held that Hudson took a fee, determinable upon his dying without a child or children, and the other children of the testatrix were intended to take by executory devise in that event. It
4. Other Cases in Which General Owner May Be Responsible as for Waste.
McKinstry, J., in
64 California, 134. - 1883.
The material questions presented are:
Does the excavation and removal of cinnabar from a quicksilver mine, or the cutting of timber trees used in working the mine, by one tenant constitute waste for which his co-tenants may recover treble damages under section 732 of the Code of Civil Procedure?
Does such excavation and cutting and conversion constitute waste which should be enjoined?
Are the plaintiffs entitled to an accounting?
1. Section 732 reads: " If a guardian, tenant for life or years, joint tenant or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be a judgment for treble the damages."
In Elwell v. Burnside, 44 Barb. 447, it was said: " By the common law one tenant in common could not be guilty of committing waste; that is, the same acts which if committed by a tenant for life or years would constitute waste, would not be waste when committed by a tenant in common. He was not liable to his co-tenant in an action for waste, for the injury done to their common estate. As he is now, however, liable by statute1 (referring to a statute similar to the section of the code above recited), to respond to his co-tenant in this form of action, for those acts which constituted waste when committed by a tenant for life or years, we must resort to the common law to ascertain whether the acts complained of in this case would be waste, had they been committed by a tenant for life or years."
In the case now before us the quicksilver mine had already been opened when plaintiffs and defendant became tenants in common. If, therefore, it be conceded that under the provision of our code a appears from the bill that Hudson had sold off large parcels to his co-defendants and that they were committing acts of irreparable waste on the land, stripping off the timber " which was one of the greatest elements of value of the land." The Court say: " It is conceded that if Hudson took a fee of any sort he is exempt from the supervision of chancery in respect to waste, and such undoubtedly is the law. We think he took ,a qualified fee." - Ed. 1See .V V. Code Civ. §§Proc, 1656-1658, for the N. Y. statute. - Ed.
tenant in common is subject to the action in like circumstances as is a tenant for life or years, the plaintiffs cannot recover damages as for waste. "As to all tenants for life, the rule has always been that the working of open mines is not waste." And a tenant for life may open new pits or galleries without committing waste. Neel v. Neel, 19 Pa. St. 328. A tenant for years is not guilty of waste in taking ore from the mine, the sole subject of the demise, during his term. That is what he pays rent for.
It may be argued that, as between lessor and lessee for years, their contract contemplates the extraction of mineral, and in case of a life estate, the grantor or donor must intend that his grantee or donee shall receive some benefit from his estate. But, is it not also true from the very nature of mining property in this state, valuable only because of the mineral it is supposed to contain, that each of the co-tenants may use it in the only way it can be used? The co-tenants out of possession may at any time enter into an equal enjoyment of their possessions; their neglect to do so may be regarded as an assent to the sole occupation of the other. This is but another application of the principle announced in Pico v. Colum-bet, 12 Cal. 414. True the co-tenant will not be held to assent to the commission of waste by the sole occupant, but the question returns, What acts done by him are waste?
It cannot be doubted that on the part of a mere trespasser it is a wrong in the nature of waste to remove any ore from a mine. The cases cited by appellants fully sustain this proposition. But it is not a just inference that as between tenants in common the rule is the same. Section 732 of the Code of Civil Procedure does not relate to trespasses committed by those who have no interest in the property. Nor does it define " waste " or declare what acts committed by a guardian, tenant for life or years, or joint tenant or tenant in common, as the case may be, shall be waste. For the appropriate meaning of the word, as applicable to acts clone by these several classes of persons, we are relegated to the principles of the common law, and to various considerations of policy arising out of different conditions which the common law recognizes and approves.