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 .
A tenant in fee simple may make- any use whatever of the land, provided he does not violate the rights, either naturally existing or imposed by grant or contract, in favor of his neighbors,30 even though he destroys buildings, improvements, or timber on the land, or in other ways decreases the value thereof. In case, however, the fee simple estate is liable to be divested by the taking effect of an executory limitation, a court of equity will interpose, on the application of the owner of the executory interest, to restrain unreasonable destruction or "waste" of the inheritance by the tenant in possession, this being known as "equitable waste," because thus recognized in equity only.30a
26. Agate v. Lowenbein, 57 N. Y. 604; Hasty v. Wheeler. 12 Me. 434; Webster v. Webste-, 33 N. H. 18, 66 Am. Dec. 705; Jackson v. Tibbits, 3 Wend. (N. Y.) 341; Young v. Spencer, 10 Barn. & 3. 145. Rutherford v. Wilson, 95 Ark. 246, 37 L. R .A. (N. S.) 763, 129 S. W. 534. See post, note Sec. 283, note 67.
27. See McGregor v. Brown, 19 N. Y. (6 Seld.) 114, as explained in Agate v. Lowenbein, 57 N. Y. 604.
28. Ante Sec. 33, notes 66, 67.
29. Magness v. Harris, 80 Ark, 583, 98 S. W. 362; Clark v. Mid-dlesworth, 82 Ind. 240; Stetson V. Day, 51 Me. 434; Abernethy v. Orton, 42 Ore. 437, 95 Am. St. Rep. 774; Woolston v. Pullen, 88 N. J. Eq. 35, 102 Atl. 461; Phelau v. Boylan, 25 Wis. 679.
30. See Post, Part IV.
A tenant in fee tail has the same right to use the land, even to its injury, as has a tenant in fee simple; and in so far as he has the power to destroy executory interests by a conveyance in fee simple, a court of equity will not, in favor of the owner of an executory interest, restrain destruction by the tenant in tail.31 Tenant in special tail after possibility of issue extinct, though he is, in other respects, in the position of a tenant for life merely, may commit ordinary waste, but willful acts of destruction by him will be restrained, as being equitable waste.32
A tenant for life or years, while he has the right to utilize the premises in the condition in which he receives them, and to take therefrom the ordinary profits of the land, cannot ordinarily do any acts upon the land which involve a diminution in their value, to the detriment of the reversioner or remainderman. Such acts of injury "to the inheritance," as it is frequently expressed, constitute waste, and it is almost exclusively in connection with these classes of tenancies that the law of waste has been developed.
A tenant at will who commits acts injurious to the inheritance is regarded as thereby terminating the lessens the value of the land.37 The conversion of meadow and pasture land into a cemetery has been enjoined on the theory that it would constitute waste,38 and there is one decision to the effect that depositing large quantities of refuse materia] on the premises, so as to raise the surface thereof several feet, and so alter the nature of the land demised, constituted waste.39
30a. Turner v. Wrigh;, 2 De Gex, F. & J. 234; Farabow v. Green, 108 N. C. 339, 12 S. E. 1003; Landers v. Landers, 151 Ky 206, 151 S. W. 386; Contra, Matthews v. Hudson, 81 Ga. 120, 12 Am. St. Rep. 305, 7 S. E 286 . In Gannon v. Peterson, 193 111. 372, 55 L. R. A. 701, 62 N. E. 210, it is said that equity will not intervene unless the contingency on which the limitation over is to take effect is reasonably certain to happen.
31. Attorney General v. Duke of Marlborough, 3 Madd. 498.
32. Co. Litt. 27b; Bowies' Case 11 Coke, 79b; Attorney General v. Duke of Marlborough, 3 Madd. 498; Abraham v. Bubb, 2 Free-maa 53, 2 Show. 69.
[Sec. 281 tenancy, and he is held liable, not as for waste, but as for trespass, as would be a stranger under like circumstances. 32a