The particular tenant is ordinarily guilty of waste if he removes buildings or other structures, or parts thereof, which were annexed to the land at the time of the inception of his estate.76 It is said by Coke that "if glass windows (though glazed by the tenant himself,) be broken down or carried away, it is waste, for the glass is part of his house. And so it is of wainscot, benches, doors, windows, furnaces and the like, annexed or fixed to the house, either by him in the reversion or the tenant."77 This statement must, however, be accepted subject to the rights of the tenant, under the modern law of fixtures, to remove articles annexed by him.78

Generally speaking, it seems, a tenant holding under a lease has no right to destroy a building on the premises even for the sake of erecting a more valuable one in its stead, nor to make considerable alterations in a building without the landlord's consent, even though these increase its value. It is stated by an old authority that the substitution of a larger for a

74. Loomis v. Wilbur, 5 Mason, 13; Fed. Cas. No. 8,498; Miller v. Shields, 55 Ind. 71. See King v. Miller, 99 N. C. 583, 6 S. E. 660; Thomas v. Thomas, 166 N. C. 627, 82 S. E. 1032.

75. Doe d. Foley v. Wilson, 11 East. 56; Agate v. Lowenbein, 57 N. Y. 604.

76. Co. Litt. 53a; United States v. Bostwick, 94 U. Si 53, 24 L. Ed. C5; Bass v. Metropolitan West Side El. R. Co., 53 U. S. App. 542, 27 C. C. A. 147, 82 Fed. 857; Palmer v. Young, 108 111. App. 252; Cornish v. Strutton, 8 B. Man.

(Ky.) 586; Abel v. Weresten, 143 Ky. 513, 136 S. W. 867; Chalmers v. Smith, 152 Mass. 561, 11 L. R. A. 769, 26 N. E. 95; Anstays v. Anderson, 194 Mich. 681, 160 N. W. 475; Champ Spring Co. v. B. Roth Tool Co, 103 Mo. App. 344, 12 L. R. A. 187, 77 S. W. 344; Erbes v. Smith, 35 Mont. 139, 88 Pac. 5C8; Davenport v. Magoon, 13 Ore. 3, 57 Am. Rep. 1, 4 Pac. 299; McCullough v. Irvine's Ex'rs, 13 Pa. 438; Dooly v. Striagham, 4 Utah 107, 7 Pac. 405.

77. Co. Litt. 53 a.

78. Ante, Sec. 272.

79. 2 Rolle, Abr., Waste, p. 815, pli. 18.

80. See Cole v. Green, 1 Lev. 308; City of London v. Greyme, Cro. Jac. 181; Young v. Spencer, 10 Barn. & C. 145; Brooke v. Kav-anagh, L. R. 23 Ir. 97.

81. See Pynchon v. Stearns, 52 Mass. (11 Metc.) 304, 45 Am. Dec. 207; Mel s v. Pabst Brew. Co.. 104 Wis. 7, 46 L. R. A. 478, 79 N.

W. 738; Doherty v. Allman. 3 App. Cas. 709.

82. See Malms v. Pabst Brew. Co., 104 Wis. 7, 46 L. R. A. 478, 79 N. W. 738, per Winslow, J.; Hamburger & Dreyling v. Sette-gast, 62 Tex. Civ. App. 446, 131 S. W. 639.

83. Cole v. Greer, 1 Lev. 308.

84. 2 Rolle, Abr., 815, pl. 19.

Better one,85 and a like ruling has been made in England86 Likewise it has been decided in this country that waste may consist in the removal of partitions,87 in the opening of a doorway in an outer wall,88 or the erection of a chimney ,89 without reference to the question whether such alterations actually decrease the value of the premises.

The obligation of a tenant to refrain from the Substantial alteration of a building may be modified, it seems, by the fact that his lease has a great length of time to run, so that he may be regarded to a considerable extent as the absolute owner, while the value of the reversion is comparatively slight.90 And occasionally, perhaps, the necessity of some alterations in order to make the premises reasonably fit for the business for which they were leased may justify the making of them91 The removal of a valueless building by a life tenant, not holding under a lease, has been decided not to be an act of waste, where the removal was necessary, owing to changing conditions, for the profit able use of the property,92 but it appears from the same case that a different view would he taken in the case of a tenant holding under a lease, at least if it had but a few years to run.

85. Davenport v. Magoon, 13 Or. 3, 4 Pac. 299, 57 Am. Rep. 1. In Dooly v. Stringham, 4 Utah, 107, 7 Pac. 405, a widow having a life estate was enjoined from tearing down a building, though she intended to build a better one.

86. Smyth v. Carter, 18 Beav. 78. And see Brooke v. Kavanagh, L. R. 23 Ir. 97; West Ham Central Charity Board v. East London Waterwork Co. [1900] 1 Ch. 624. But compare the remarks on Smyth v. Carter, 18 Beav. 78, su-pra, in Doherty v. Allman, 3 App.

Cas. 709.

87. Agate v. Lowenbein, 57 N. Y. 605.

88. Klie v. Von Broock, 56 N J. Eq. 18, 37 Atl. 469; Hamburger & Dreylng v. Settegast, 62 Tex. Civ. App. 446, 131 S. W. 639. And so when windows were changed into doors connected with passage ways to other buildings. Peer v. Wadsworth, 67 N. J. Eq. 191, 58 Atl. 379.

89. Brock v. Dole, 66 Wis. 142, 28 N. W. 334.

90. See Doherty v .Allman, 3 App. Cas. 709, where the House of Lords refused an injunction to restrain a tenant under a lease for 999 years from converting store buildings to dwelling houses, the neighborhood having changed so as to do away with any demand for store buildings. In Crowe v. Wilson, 65 Md. 479, 57 Am. Rap. 343, 5 Atl. 427, it was decided that a tenant under a lease of land renewable forever could make any alterations in the buildings provided the security for rent was not impaired. And see Klie v. Van Broock, 56 N. J. Eq. 18, 29, 37 Atl. 469, for dicta to the same effect.

Sec. 284]

Rights of Enjoyment.

- Erection of building or other structure. The construction of a building on the leased land, in a place where there was none before, is not waste, it seems, unless this results in an injury to the reversion,93 or unless, apparently, it involves an alteration of the character of the land, as when the tenant of agricultural land covers it with buildings so as to render it useless for agricultural purposes.94 It has been asserted that a tenant under a lease may erect fences on the land as he may please.95

- Improper user of building. A tenant is, apart from express stipulations, not liable for injury to buildings resulting from a reasonable use of them for the purpose for which they were intended. "No user an oral permission to commit particular acts of waste is invalid on the ground that this would involve the transfer of an interest in land without writing, in violation of the statute of frauds.8 In spite of these statements, however, it appears somewhat questionable whether, at the present day, apart from a statute expressly so providing, an oral permission by the landlord to the tenant to do acts which would otherwise constitute waste is insufficient to protect the tenant in doing such acts. An oral license to cut trees, for instance,9 or to take minerals from the land10 is ordinarily regarded as perfectly valid until revoked, and it is not perceived why a rule should be applied as between landlord and tenant, or remainderman and life tenant, different from that applied between strangers. In a few jurisdictions there are statutory provisions requiring a license to commit acts which would otherwise constitute waste to be in writing.

91. See Doherty v. Allman, 3 App. Cas. 709, and Melms v. Pabst. Brew. Co., 104 Wis. 7, 46 L. R. A. 478, 79 N. W. 738; Klie v. Van Broock, 56 N. J. Eq. 29, 37 Atl. 469.

92. Melms v. Pabst Brew. Co., 104 Wis. 7, 46 L. R. A. 478, 79 N. W. 73S; And see Sherrill v. Connor, 107 N. C. 630, 12 S. E. 588.

93. Winship v. Pitts, 3 Paige (N. Y.) 259, 24 Am. Dec. 218; Pyn-ehon v. Stearns, 52 Mass. (11 Metc.) 304, 45 Am. Dec. 207; Hubble v. Cole, 85 Va. 87, 7 S. E. 242; Jones v. Chappell, L. R. 20 Eq. 539- Meux v. Cobley [1892] 2 Ch.

262. See Viner's Abr., Waste, p 439, pl. 22.

94. In Brooke v. Mernagh, L. R. 23 Ir. 86, and Brooke v. Kav-anagh, L. R. 23 Ir. 97, where the tenant had erected dwellings on the leased premises, an agricultural holding, in order to aid the

"plan of campaign" which was. in the eyes of the law, an illegal conspiracy, an injunction issued to restrain any futher erections and to compel the removal of the dwellings already erected.

95. Donason v. Walker, 87 111. 231.

Real Property.

Sec. 284 of a tenement" it has been said, "which is reasonable and proper, having regard to the class to which it belongs, is waste."96 Accordingly the particular tenant is not liable for the breaking down of a building owing to its insufficiency to support a reasonable weight of goods placed in it by him, he having no reason to suspect its weakness.97 But he is liable for injuries caused by placing an unreasonable and extraordinary weight in the building,98 as he is for injuries caused by other improper use thereof,99 or by any sort of negligence on the part of himself or his servants.1 The burden is on a landlord of showing that any injury to the premises was by his tenant's fault, and unless this is shown the tenant is free from liability,2 except, by the authorities generally, when the injury is caused by a direct act of commission on the part of a stranger.3

The use of the premises as a hospital for infectious diseases has been regarded as possibly involving the commission of waste thereon,3a This is presumably based on the theory that the introduction of the germs of disease involves a physical alteration of the premises

96. Saner v. Bilton, 7 Ch. Div. 815. And to the same effect, see Haas v. Brown, 21 Misc. (N. Y.) 434, 47 N. Y. Supp. 606.

97. Saner v. Bilton. 7 Ch. Div. 815; Machen v. Hooper, 73 Md. 342, 21 Atl. 67; Sheer v. Fisher, 27 111. App. 464. See Jennings v. Bond, 14 Ind. App. 282, 42 N. E. 957.

98. Manchester Bonded Warehouse v. Carr, 5 C. P Div. 507; Brooks v. Clifton, 22 Ark. 54; Chalmers v. Smith, 152 Mass. 561, 11 L. R. A. 169, 26 N. E. 95; Southern Oil Works v. Bickford, 14 Le. (Tenn.) 651; Moses v. Old Dominion Iron & Nail Works Co., 75 Va. 95.

99. Powell v. Dayton, S. & G. R. Co., 16 Ore. 33, 8 Am. St. Rep. 251, 16 Pac. 863; Anderson v. Miller, 96 Tenn. 35, 31 L R. A. 604, 54 Am. St. Rep. 812, 33 S. W.


1. Mason v. Stiles, 21 Mo. 374, 64 Am. Dec. 242 (explosion caused by negligence of servant); Duer v. Allen, 96 Iowa, 36, 64 N. W. 682 (fire); Zigler v. McClellan, 15 Ore. 499, 16 Pac. 179 (fire); Wilcox v. Cate, 65 Vt. 478, 26 Atl. 1105 (explosion).

2. John Morris Co. v. South-worth, 154 111. 118, 39 N. E. 1099; Finch v. Shackleford, 12 Ky. Law Rep. 322; Lynn's Appeal, 31 Pa. 44, 72 Am. Dec. 721. See, also, cases cited Post Sec. 288. But in Manchester Bonded Warehouse Co. v. Carr, 5 C. P. Div. 507, it is decided that if the building is destroyed as a result of the acts of the lessee or his undertenants, he must, to exonerate himself, show that he was not at fault.

3. Post Sec. 287.

It is somewhat difficult to regard such a use as constituting waste merely by reason of the odium which attaches thereby to the premises, with the consequent possible decrease in rental value.

Rights of Enjoyment.