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 .
In the absence of pro visions to a contrary effect, a tenant is not liable for injuries caused by act of God, as when buildings or trees are thrown down by the wind,54a a house is destroyed by lightning,55 or the unusual violence of the sea breaks down protective walls and submerges the land.56 nor is he liable for waste done by public enemies, this being vis major, against which he is without remedy.57 He is not ordinarily liable for an accident which could not have been foreseen by him, or the occurrence of which was not caused by his negligence.58 Accordthe tenant was regarded as liable for the act of a third person, a steamboat company, in negligently setting fire to the building But a directly cortrary view was adopted in Rogers v. Atlantic Gulf & Pacific Co., 213 N. Y. 246. 107 N. E. 667. In Maggort v. Hansbarger, 8 Leigh (Va.) 532, it appears to be assumed that the tenant was not liable in case the fire was started by accident or by some unknown person, and this accords with the st?tement made by Coke in 2 Inst, at p. 303 that it was adjudged in 9 Edw. 2 that if thieves burn the hou;e of tenant for life without evil keeping of lessee for life's fire, the lessee shall not be punished for it in action of waste.
54. Lord Coke says: "Two joint tenants for years, or for life, one of them doth waste, this is the waste of them both, but treble damages shall be recovered against him that did the waste only." 2 Inst. 302. And to this effect, see Cruise's Dig. tit. 18, ch. 1, Sec. 62, and notes to Greene v. Cole, 2 Wms. Saund. (Ed. 1871) p. 658, by Sir E. V. Williams. But Clemson v. Trammell, 34 111. App. 414, is adverse to the liability of one joint lessee for waste committed by the other.
54a. Co. Litt. 53 a; 2 Co. Inst. 303; Vin. Abr., Waste (1); Abbot of Sherbourne's Case. Y. B. 12 Hen. 4, 5.
55. 2 Co. Inst. 303; Vin. Abr., Waste (1).
56. Vin. Abr.. Waste (1); Keighley's Case, 10 Coke, 139 b; Y. B. 17 Edw. 3, 65.
57. 2 Co. Inst. 303.
58. Saner v. Bilton, 7 Ch. Div. 815; Parrott v. Barney, 1 Sawy. 423, 2 Abb. 197, Fed. Cas. No. 10,
[Sec. 289 ingly he is usually not liable for the destruction of buildings on the premises by fire which accidentally starts or spreads,59 though he is liable if this is the result of his negligence.60
Sec.289. Equitable waste. The doctrine of "equitable waste," by which waste of a character which is not recognized at law as illegal, is relieved against in equity by an injunction to prevent it, and, when possible, by compelling the restoration of the thing wasted, has been very fully developed in England. In this country there are but few decisions in which waste has been considered as of such a character as to be cognizable in equity, and not at law, and the extent to which there is such a thing as equitable waste, as distinct from legal waste, appears doubtful.61
773; John Morris Co. v. South-worth, 154 111. 118, 39 N. E. 1099; Machen v. Hooper, 73 Md. 342, 21 Atl. 67.
59. United States v. Bostwick, 94 U. S. 53, 24 L. Ed. 65; Nave v. Berry, 22 Ala. 383; Junction Min. Co. v. Springfield Junction Coal Co. 222 111. 600, 78 N. E. 902; Wains-cott v. Silvers, 13 Ind. 497; Bently v. Ballard, 162 Ky. 622, 172 S. W. 1079; Lothrop v. Thayer, 138 Mass. 466, 52 Am. Rep. 286: Levey v. Dyess, 51 Miss. 501; Rogers v. Atlantic Gulf & Pacific Co. 213 N. Y. 246, 107 N. E. 667; Warner v. Hitchins, 5 Barb. (N. Y.) 666; Earle v. Arbogast, 180 Pa. 409, 36 Atl. 923; Sampson v. Grogan, 21 R. I. 174, 44 L. R. A. 711, 42 Atl. 712; Maggort v. Hana-barger, 8 Leigh (Va.) 532; Armstrong v. Maybee, 17 Wash. 24, 61 Am. St. Rep. 898, 48 Pac. 837; Wolfe v. McGuire, 28 Ont. 45.
60. Duer v. Allen, 96 Iowa, 36, 64 N. W. 682; Stevens v. Pant-lind, 95 Mich. 145, 54 N. W. 716; Robinson v. Wheeler. 25 N. Y. 252; Moore v. Parker, 91 N. C. 275; See Anderson v. Miller, 96 Tenn. 35, 54 Am. Rep. 812, 33 S. W. 615.
61. Relief has occasionally been given in this country in an action at law on account of acts which are in England regarded as equitable and not legal waste. Stevens v. Rose, 69 Mich. 259, 37 N. W. 205; Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004. While the law of legal waste is not applicable, it has been held, to injuries by a tenant for ninety-nine years, renewable forever, the tenant having, in such case, the absolute control of the property, equity will intervene if the destruction of the inheritance is such as to affect the security for the rent. Crowe v. Wilson, 65
Rights of Enjoyment.
One instance of "equitable waste" has previously been referred to, being- that of waste committed by a tenant in fee simple whose estate is subject to be defeated by an executory limitation, a court of equity interposing in such a case to prevent acts of willful destruction, or other acts calculated to unduly prejudice the future tenant, although these acts are within his legal powers as tenant in fee simple.62 Likewise, a tenant in fee tail after possibility of issue extinct will be restrained from committing- acts unduly destructive to the reversion.63 A tenant for life, although expressly "without impeachment of waste,"'64 will be restrained in equity from an unconscientious, malicious, or unreasonable exercise of his legal power to commit waste, thus disappointing the presumed intention of the creator of the estate that the property should pass to the next in succession in its integrity, as originally settled or devised.65