As the English statutes were not regarded as imposing liability on a tenant at will for voluntary waste,31 so a fortiori they did not make him liable for permissive waste, and he has usually been held to be absolutely free from liability therefor.32

The exact extent of the obligation of the tenant in possession, involved either in the prohibition of permissive waste or in the requirement of "ordinary" repairs, does not clearly appear from the authorities. The character of the repairs most frequently referred to in the cases are such as are necessary to keep the building wind and water tight.33 Such a view of the

30. Torriano v. Young, 6 Car. & P. 8.

31. See Post, Sec. 290 (a) note 70.

32. Litt, Sec. 71; Co. 57 a; Shrewsbury's Case, 5 Coke, 13; Harnett v. Maitland, 16 Mees. & W. 257;- Means v. Cotton, 225, Mass. 213, 114 N. E. 361; Moore v. Townshend, 33 N. J. Law, 284; Coale v. Hanuibal & St. J. R. Co.

60 Mo. 227; Parrott v. Barney Deady, 405, Fed. Cas. No. 10,773 a, Overloading the building is voluntary, and not permissive, waste, and a tenant at will is liable therefor in trespass. Chalmers v. Smith, 152 Mass. 561, 11 L. R. A. 769. 26 N. E. 95.

33. Such is the view taken in Morris v. Cairncross, 14 Out. Law Rep. 544, and per Earl, C, in tenant's obligations in this regard seems to accord with the natural meaning of "permissive waste" as referring to waste from extraneous causes, the operation of which the tenant could have prevented by making repairs, but which, nevertheless, he permitted to operate. Occasionally, however, the courts refer to the obligation to make repairs as involving the making of repairs other than those necessary to render the premises wind and water tight, as well as those which are so necessary. There is authority to the effect that merely suffering a house to be uncovered is not itself waste, unless this results in rotting the timber,34 the result of which would be that the tenant could not be charged with the cost of repairs, if the landlord chose to make them, but the landlord could merely recover for damages to the interior caused by the tenant's failure to make them. Such a view has not, however, been asserted in any modern decision, it seems.35

In a recent case the view is indicated that a tenant might be held liable as for permissive waste in case, by reason of his failure to turn off the water supply in time of emergency, damage is caused to the premises.35a Such seems a reasonable view, though a liability might as well be asserted, it would seem, under the comparatively modern doctrine of negligence.

Suydam v. Jackson, 54 N. Y. 450, 13 Am. Rep. 611. See also Professor Kirchwey's article, 8 Columbia Law Rev. at p. 628.

"If a window in a dwelling should blow in, the tenant could not permit it to remain out and the storms to beat in and greatly injure the premises without liability for permissive waste; and if a shingle or board on the roof should blow off or become out of repair, the tenant could not permit the water, in time of rain, to flood the premises, and thus injure them, without a similar lia■ bility." Suydam v. Jackson, 54 N. Y. 450.

34. Knoll's Case, Hargrave's note to Co. Litt. 53 a. And so Lord Coke says (Co. Litt. 53 a) that waste may be done in houses by suffering them to be uncovered "whereby the spars, rafters or other timbers of the house are rotten."

35. It is not in accord with the Pennsylvania cases ante, 'this section, note 19.

35a. Means v. Cotton, 225 Mass. 213, 114 N. E. 361.

Sec. 286]

Rights of Enjoyment

Besides permissive waste in regard to buildings, a particular tenant is guilty of this form of waste, it is said, if he permits a wall or hank, built to protect the leased premises from submersion by water, to fall into a state of decay, with the result that the land is flooded.36 This, it appears, is but an application of the requirement that the premises be kept bv the tenant wind and water tight. If, however, the land is injured by a flood caused by the act of God, the tenant is not liable37

The authorities are generally to the effect that the tenant under a lease is bound to keep the fences on the land demised in repair.38 This obligation has been referred to as part of that to use the premises in a husbandlike manner,39 rather than as one not to commit permissive waste. This duty to keep the fences in repair, and thereby prevent injuries by trespassing cattle, bears, however, some analogy to the duty to keep the roof and walls in repair, and thereby prevent injuries by wind and water.40

A tenant is obviously not liable as for permissive waste in failing to make particular repairs, if the lessor expressly assumed the obligation of making such repairs. But he is not relieved from any such obli36. Co. Litt. 53 a; Anonymous, Moore, 53 a; Vin. Abr., Waste (D) pl. 33-35.

37. See Post, Sec. 288, note 56.

38. Whitfield v. Weedon, 2 Chitty, 685; Cheetham v. Hamp-son, 4 Term R. 319; Fenton v. Montgomery. 19 Mo. App. 156; Morgan v. Tims, 44 Tex. Civ. App. 308, 17 Tex. Ct. Rep. 111, 97 S. W. 832; Andrews v. Jones. 36 Tex. 149; Blood v. Spaulding, 5 7 Vt. 422; Hoyleman v. Kanawha & O. R. Co., 33 W. Va. 489. 10 S. E. 816; Windon v. Stewart, 43 W. Va. 711, 28 S. E. 776. But see Richards v Torbert, 3 Houst. (Del.) 172.

39. Whitfield v. Weedon, 2 Chitty. 685; Blood v. Spaulding, 57 Vt. 422.

40. In Byrkett v. Gardner, 35 Wash. 668, 77 Pac. 1048, it was held that a failure to comply with a clause of the !ease requiring the fences to be kept in repair was not waste within the statute authorizing a forfeiture for waste, for the reason that the latter term refers to acts which tend to the destruction of the tenement.

Real Property.

[Sec. 287 gation by reason of a covenant by the lessor allowing the tenant to make repairs to a limited amount, and to deduct their cost from the rent.41

Courts of equity will not, it has usually been decided, take jurisdiction of a proceeding to restrain permissive waste, or give compensation therefor.42 These decisions involved permissive waste by a life tenant, but a like rule, it seems probable, would be applied in the case of such waste by a tenant for years.