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 .
At common law, it is said, an action could be brought on account of waste against tenants in dower or by curtesy, and against guardian in chivalry, but not against lessees for life or years, this distinction being based on the ground that, while the interests of the former were created by act of the law, in the case of the latter the lessor could have provided in the lease
Md. 479. 57 Am. Rep. 343. 5 Atl. 427.
62. Turner v. Wright, 2 De Gex, F & J. 234; Landers v. Landers, 151 Ky. 206, 151 S. W. 386 Farabow v. Green, 108 N. C. 339, 12 S. E. 1003.
63. Williams v. Day, 2 Ch. Cas. 32; Abraham v. Bubb, 2 Freem. Ch. 53.
64. Ante Sec. 285, note 5.
65. Vane v. Barnard, 2 Vern. 738; Rolt v. Somorville, 2 Eq. Cas. Abr. 759; .Marker v. Marker, 9 Hare 1, 17; Downshire v. Sandys, 6 Ves. 110; Crowe v. Wilson, 65 Md. 479, 59 Am. Rep. 343, 5 Atl. 427; Stevens v. Rose, 69 Mich. 259, 37 N. W. 205; Derham v. Hovey, 195 Mich. 243, 161 N, W. 883; Clement v. Wheeler, 25 N. H. 361.
A tenant at will was never regarded as within the scope of these statutes, and if such a tenant commits acts injurious to the inheritance, which, in the case of other tenants, would constitute waste, he is considered to have committed not waste but a trespass, which terminates the tenancy, and renders him liable to an action for damages as in the case of any wrongdoer.70
66: Co. Litt. 54; 2 Co. Inst. 299, 305; Moore v. Townshend, 33. N. J. Law, 284. This is, however, questioned, as regards tenants for life, in 2 Pollock & Maitland, Hist. Eng. Law, p. 9, and also in a learned article on "Liability for waste" by Professor George W. Kirchwey, in 8 Columbia Law Rev. 425.
67. 52 Hen. 3, c. 23, Sec. 2 (A. D. 1267).
68. 'Termors (firmarii) do comprehend all-such as hold by lease for life or lives or for years, by deed or without deed." 2 Inst. 145. But see Professor Kirch-wey's remarks to the effect that the expression referred to tenants under a lease for years, S Columbia Law Rev. at p. 432.
69. 6 Edw. 1, c. 5 (A. D.) 1278.
70. Litt. Sec. 71; Co. -Litt. 57 a; Countess of Shrewsbury's Case, 5 Coke, 13; Chalmers v. Smith, 152 Mass. 561, 11 L. R. A. 769, 26 N E. 95; Phillips v. Covert, 7 Johns. (N. Y.) 1; Parrott v. Barney. Deady, 405, Fed. Cas. No. 10,773 a; Perry v. Carr, 44 N. H. 718, 82 Am. Dec. 191. But sea Young v. Young, 36 Me. 133.
The proper, form of action against a tenant at will for waste caused by direct acts of commission is trespass, and not trespass on the case. Salop v. Crompton, Cro. Eliz. 777; Goodright v. VivThe action of waste, as it existed at common law, and under these English statutes, was gradually superseded by an action on the case to recover damages for the waste,71 and the old action of waste now no longer exists in England.72 To what extent the Statutes of Marlbridge and Gloucester are in force in this country is a matter of considerable uncertainty73 but even where they are not in force, and though there is no local statute on the subject, an action of trespass on the case, or its equivalent code action, would seem to lie for the recovery of damages on account of acts of voluntary waste committed by a tenant for life or years.74 In a considerable number of the states there is an express statutory provision for the recovery of damages for waste committed by a tenant for life or years, and, in two or three states for waste committed by any tenant of land. In some states, the statute provides that the person committing waste shall be liable in treble damages, while in some the statute provides that he "may" be made liable in such damages tan, 8 East. 190; Perry v. Carr. 44 N. H. 118, 82 Am. Dec. 191; Chalmers v. Smith, 152 Mass. 561, 11 L. R. A. 769, 26 N. E. 95; Files v. Magoon, 41 Me. 104, is contra.
71. See 2 Wms. Saund. 252, note (7) to Greene v. Cole.
72. See 3 & 4 Wm. 4, C. 27. Sec. 36 (A. D. 1833).
73. To the effect that these statutes are not in force, see Moore v. Ellsworth, 3 Conn. 483; Smith v. Pollansbee, 13 Me. 273; Parker v. Chambliss, 12 Ga. 235; Woodward v. Gates, 38 Ga. 205, 95 Am. Dec. 385; Moss Point Lumber Co. v. Board of-Supervisors of Harrison County, 89 Miss. 448, 42 So. 290. That they are in force in part or in whole. see Dozier v. Gregory, 46 N. C. (1 Jones Law) 100; Sackett v. Sackett, 8 Pick. (Mass.) 309. See, also, Alexander's British Statutes in force in Maryland, pp. 46, 83.
74. See 4 Kent, Comm. 81; Randall v. Cleaveland 6 Conn. 328; Dozier v. Gregory, 46 N. C. (1 Jones Law) 100; Yocum v. Zahner, 162 Pa. 468, 29 Atl. 778; Thackeray v. Eldigan, 44 Atl. 689, 21 R. I. 481; Moss Point Lumber Co. v. 3oard of Harrison County Super's, 89 Miss. 448, 42 So. 290, 873; Moses v. Old Dominion Iron & Nail Co., 75 Va. 95; McGlamery v. Jackson, 67 W. Va. 417, 21 Ann. Cas. 239, 68 S. E. 105.
[Sec. 290 and occasionally there is a provision for a judgment for double damages.75
The right to recover damages for waste is not affected by the fact that the lease contains an express covenant not to commit waste, or to yield up the premise's in good condition at the end of the term. The landlord has the option of suing on the covenant, or of bringing an action on the case, or other action, directly for the waste.76
- (b) Injunction against waste. A court of equity may interpose by injunction to prevent the commission of waste.77 Occasionally the grant of an injunction against waste upon application therefor seems to have been regarded as a matter of course,78 while in other cases it has been refused on the ground that the injury was not irreparable,79 or that there was an adequate remedy at law.80
75. 1 Stimson's Am. St. Law Sec.Sec. 1332,1343.
76. Kinlyside v. Thornton, 2 Wm. BL 1111; City of London v. Hedger, 18 Ves. Jr. 355; Marker v. Kenrick, 13 C. B. 188; Moore v. Townshend, 33 N. J. L. 284; Moses v. Old Dominion Iron & Nail Works Co, 75 Va. 95; Par-rott v. Barney; 2 Abb. 197, Fed. Cas. No. 10.773.