This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
93. Whitfield v. Bewit, 2 P. Wms. 240.
94. Blake v. Peters, 1 De Gex, J. & S. 345; Morris v. Morris, 3 De Gex & J. 323; Lansdowne v. Lansdowne, 1 Madd. 116.
95. See Lansdowne v. Lans-down, 1 Madd. 116.
96. Vane v. Barnard, 2 Vern. 738; Rolt v. Somerville, 2 Eq. Cas.
An action on the case for waste, as distinguished from an action of waste, may be brought, it is said, by one having a reversion or remainder for life or for years as well as by one having a fee.1 And there is
Abr. 759; Klie v. Van Broock, 56 N. J. Eq. 18, 37 Atl. 469. See En-gle v. Thorn, 10 N. Y. Super. Ct. (3 Duer) 15,
97. Co. Litt. 53a. And see authorities cited in note (7) to Greene v. Cole, 2 Wms. Saund. 252a, and in Ames. Cas. in Equity Jurisdiction, 467.
98. 2 Co. Inst. 305; Note to Greene v. Cole 2 Wins. Saund. at p. 252a; Comyn, Land'l & Ten. 489; Bacon v. Smith, 1 Q. B. 345; Crawford v. Brigg, 12 Ont. 8.
99. Co. Litt. 53b; 2 Inst. 301. "At common law, the assignee of the tenant by the curtesy cannot be sued in waste. The action ought to have been brought against the tenant himself by the heir; and the books state that thereby he shall recover the lands against the assignee, for the priv ity which is between the heir and tenant by the curtesy. Walker's Case, 3 Coke, 23. So, if tenant in dower, or tenant by the curtesy, grant over their estate, yet the privity of action remains between the heir and them, and he shall have an action of waste against them for waste committed after the assignment; but if the heir grant over the reversion, then the privity of action is destroyed, an1 the grantee cannot have any action of waste, but only against the assignee, for between them is privity in estate, and between them and the tenant in dower, or the tenant by the curtesy, is no privity at all." Bates v. Schraeder, 13 Johns. (N. Y.) 260.
1. Note (7) to Greene v. Cole, 2 Wms. Saund. 252; Dickenson v. Mayor, 48 Md. 583, 30 Am. Rep 492; Dennett v. Dennett, 43 N. H. 499; Dozier v. Gregory. 46 N. C. (1 Jones Law) 100. This view is open to the objection that one may recover damages without any certainty that he will suffer by at least one decision to the effect that it will lie in favor of the reversioner in spite of an intervening estate of freehold.2 Nor, by the weight of authority, is there any necessity that privity exist at the time of bringing the action.3 But an action for damages cannot be brought by one who has a mere possibility of an estate,4 a contingent remainder, for instance5 or an executory devise.6 There are, in a number of states, statutory provisions expressly giving a right of action to particular classes of persons. Thus it is sometimes provided that the waste. For instance, a life tenant, after recovery by him, may die before the termination of the previous estate, in which case the subsequent reversioner or remainderman is the only sufferer by reason of the waste. See Mayo v. Feaster, 2 McCord Eq. (S. Car. 137.
2. Short v. Piper, 4 Har. (Dal.) 181.
3. Dickinson v. Baltimore, 48 Md. 583, 30 Am. Rep. 492; Chase v. Hazelton, 7 N. H. 171; Robinson v. Wheeler, 25 N. Y. 252; Hoolihan v. Hoolihan, 193 N. Y. 197, 85 N. E. 1103; Dupree v. Dupree, 4 Tones Law (49 N. Car.) 387, 69 Am. Dec. 757; Contra, Foot v. Dickinson, 2 Metc. (Mass.) 611; And see Bacon v. Smith, 1 Q. B. 345.
4. Pavkovich v. Southern Pac. R. R. Co., 150 Cal. 39, 87 Pac. 1097; Peterson v. Clark, 15 Johns. (N. Y.) 205; Minneapolis Trust Co. v. Verhulst, 74 111. App. 350; Dawson v. Tremaine, 93 Mich. 320 53 N. W 1044.
In Trustees of Proprietors of Kingston v. Lehigh Valley Coal Co., 241 Pa. 469, 88 Atl. 763, it was held that the fact that the reversioner would, by reason of the lease being for nine hundred and ninety nine years, not be entitled to possession for centuries, did not prevent the recovery of damages by him for the improper removal of coal.
5. Brashear v. Macey, 3 J. J. Marsh. (Ky.) 93; Hunt v. Hall, 27 Me. 363; Cannon v. Barry, 59 Miss. 289; Taylor v. Adams, 93 Mo. App. 277; Latham v. Roanoke R. & Lumber co., 139 N. C. 9, 111 Am. St. Rep. 764, 51 S. E. 780; Briggs v. Briggs, (R I.) 95 Atl. 505; Pearson v. Yongue, 25 S. C. 162.
But it has been held that as incident to an injunction, the contingent remainderman may obtain an accounting for past waste, the proceeds being impounded and invested by the court to await the vesting of the remainder. Watson v. Wolff-Goldman Realty Co. 95 Ark. 18. Ann. Cas. 1912A, 540, 128 S. W. 581. See dictum contra in Ohio Oil Co. v. Daughetee, 240 111. 361, 88 N. E. 813.
6. Gordon v. Lowthe. 75 N. C. 193; Sager v. Galloway, 113 Pa 500, 6 Atl. 209.
An heir may bring an action for waste done in the time of his ancestor as well as for that done in his own time. In some states a right of action is given in terms to one having a reversion for life or years only, whilo, not infrequently, it is declared that the presence of an intervening estate shall not affect the right to sue A number of statutes give a right of action to the person "injured" or to the person "aggrieved."7
To sustain an application for an injunction to prevent waste it is not necessary that the applicant be the immediate reversioner, but any person substantially interested in reversion or remainder may make the application, though there is an estate intervening between his estate or interest and that of the tenant against whom the injunction is sought.8 Accordingly a reversioner may obtain an injunction against his ten ant's lessee, a subtenant,9 Nor need the applicant for an injunction have an estate in fee simple, and an injunction may issue to protect not only one having an estate for life or for years10 but also the interest of a contingent remainderman11 of an executory devisee12
7. 1 Stimson's Am. St. Law, Sec. 1353.
8 Perrot v. Perroi. 3 Atk. 94; Anon. Moore, 554 pl. 748; Dennett v. Dennett, 43 N. H. 499; Palmer v. Young, 108 111. App. 252.
9. Farrant v. Lovel, 3 Atk. 723.
10. Mollineux v. Powell, 3 P. Wms. 268n; Davies v. Leo, 6 Ves. 784; Kane v. Vanderburgh, 1 Johns. Ch. (N. Y.) 11; Williams v. Peabody, 8 Hun (X. Y.) 271; Smith v. Daniel, 2 McCord, Ch. (S. C.) 387.
So trustees to preserve contingent remainders, as having an estate pur outer vie, may have an injunction to restrain waste. Garth v. Cotton, 1 Ves. 546, 555;
Lands owne v. Landsdowne, 1 Madd. 116, 137; Birch-Wolfe v. Birch, L. R. 9 Eq. 683.
11. Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, Ann. (as. 1912A, 540, 128 S. W. 531; Brasn-ear v. Macey, 3 J. J. Marsh. (Ky.) 93; Ohio Oil Co. v. Daughtee. 240 111. 361, 36 L. R. A. (N. S.) 1108, 88 N. E. 818; Cannon v. Barry, F9 Miss 289; Latham v. Roanoke R & Lumber Co., 139 N. C. 7. Ill Am. St. Rep. 764, 51 S. E. 780.
12. Turner v. Wright, 2 De G. F. & J. 234; Gordon v. Lowther, 75 N. C. 193; Sager v. Galloway, 113 Pa. 500, 6 Atl. 209.
An injunction has likewise issued to protect the interest of one an inchoate right of dower13 and even the interest of an infant en ventre sa mere.14
- (d) Forfeiture. The statute of Gloucester provided that the tenant should lose the thing that he has wasted,15 and there are in several of the states statutory provisions for the forfeiture of his estate by a. tenant committing waste, in some cases only when the waste was done maliciously or when it equals in amount the value of the residue of the tenant's estate.16 The courts are usually, it seems, indisposed to enforce a forfeiture for this, as for any other cause.17