The word "waste" is not an arbitrary term to be applied inflexibly without regard to the quantity or quality of the estate, the nature and species of the property, or the relation to it of the person charged to have committed the wrong. As was said by Roane, J., in Findlay v. Smith, 6 Munf. 134, "in considering what is waste in this country, it is to be remarked that the common law by which it is regulated adapts itself in this as in other cases to the varied situations and circumstances of the country. . . . The law on this subject must be applied with reasonable regard to circumstances.' * * *
In view of the character of the property, and of plaintiff's implied assent to its sole occupation by defendant for mining purposes, we regard the right of the latter to the proceeds of its operations as partaking of the nature of an usufruct; the appropriation of the net returns as a legitimate participation of the profits, and its acts of mining as not impairing or consuming the estate to any greater extent than must be presumed to have been intended to be allowable by each of the parties in interest. * * *
And here it may be added, applying the rule of Hi/in v. Peck, it would seem each tenant in common of a mine is at least entitled to take out his share of the ore. That neither of the tenants can " look into the ground " may be a reason why a court of equity should order an account to be taken, but ought not to operate a prohibition upon the working of the mine by anybody.
2. Ought the court below to have enjoined defendant from proceeding with its mining? "In case of joint tenants in common, with respect to whose acts of waste the common law has provided no remedy, courts of equity will interfere when it appears that waste has been committed or threatened by one tenant in common, who has become possessed of the whole premises." Taylor's Landlord and Tenant, 694. This general proposition may be conceded to be correctly stated, but the very question here is - has waste been committed ? At the common law the tenant had no redress for acts of admitted waste committed by his co-tenant. But the latter might be restrained in equity from felling ornamental trees, or from doing other things amounting to wanton and destructive waste, which were called "equitable waste," because allowable at law. By our statute, however, a tenant may recover damages of his co-tenant in every case of waste. Holding as we do that the acts of defendant were not, under the circumstances, wanton or destructive, or any waste, it follows plaintiffs were not entitled to an injunction.
O'Neall, J., in
2 Hill's Equity (S. C), 277. - 835.
I think there is no doubt that the late Dr. Garden is liable to account for waste, both as tenant for life of the whole, and as tenant in common of the remainder in fee. This is not an application to stay waste, but for an account of whatever may have been committed. In general, it may be admitted that one tenant in common cannot have an injunction against his co-tenant. But even between them, under special circumstances, the court might grant an injunction. As where the waste was destructive to the estate and not within the usual and legitimate enjoyment. Hole v. Thomas, 7 Ves. 589; Twort v. Twort, 16 Ves. 128. And, as in the case of Hawley v. Clowes, 2 J. C. R. 122, where the tenant in common in possession was cutting down the timber and threatening to persevere. This last case carries the proposition further than I should be willing to sanction; it ought, I think, to be shown that the cutting down the timber was not necessary to the enjoyment of the estate, and would greatly prejudice the interest of the co-tenant. But without dwelling further on a view of this part of the case not necessary to the decision of the point now in dispute, I will proceed to state the grounds upon which the defendant is liable to an account for waste. In several cases in this State it has been held that a tenant in common may use the estate to the extent of his interest in it; and in the case of Kerr and wife et al. v. Robertson, it was held (by my brethren), that for woodland cut down and cultivated by one tenant in common, he was not liable to account to his co-tenant for rent, but that the remedy of the latter would be for waste. In Backler v. Farrow, ante 111 (at the last term in Columbia), it was held that co-tenants who had cut down and worn out a portion of the land much beyond their shares, were liable in equity to account for the waste, and the commissioner having reported a sum certain as to the value of the waste committed, the defendants were ordered to pay it. These cases sufficiently show the right of the plaintiffs to come here against the representatives of their intestate's co-tenant for an account for the waste by him committed. * * * Where a tenant in common, by cutting down and clearing woodland, beyond his interest, has greatly injured the interest of his co-tenant, he would be liable for waste. And so if the tenant for life cuts down more woodland than is necessary for the enjoyment of his estate, and has injured the remainder, he would be guilty of waste, and liable to the account. It is the ultimate injury done to the rights of the plaintiffs, as co-tenants or in remainder, which gives them the right to complain. For if the clearing of the land had improved its value to the co-tenant or remainderman, it could not be pretended that still the co-tenant, or tenant for life, would be liable for waste.1
1 There seems to have been no statutory provision on this subject in South Carolina. - Ed.
4 New York, 110. - 1850.
Pratt, J. - There is no doubt but that an action on the case will lie for an injury of the character complained of in this case. It forms no objection to this action that the circumstances of the case are novel, and that no case precisely similar in all respects has previously arisen. The action is based upon very general principles, and is designed to afford relief in all cases where one man is injured by the wrongful act of another, where no other remedy is provided. This injury may result from some breach of positive law, or some violation of a right or duty growing out of the relations existing between the parties. 1 Cow. Treat. 3.