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 .
12. Yearworth v. Pierce, Aleyn, 31; Toller, Ex'rs, 150; 1 Williams, Ex'rs (9th Ed.) 643. See Sawyer v. Twiss, 26 N. H. 345.
13. See French v. Freeman, 43 Vt. 93; Collier v. Jenks, 19 R. I. 137, 61 Am. St. Rep. 741, 32 Atl. 208.' In Haslem v. Lockwood, 37 Conn. 500, it was decided that manure dropped on a highway belonged to the person who first gathered it into heaps, as against a' person who thereafter appropriated it.
14. Fay v. Muzzey, 13 Gray (Mass.) 53. And see Sawyer v. Twiss, 26 N. H. 345. Manure not made from crops on the land is, however, personalty going to the executor. Id.
15. Sawyer v. Twiss, 26 N. H. 345.
16. French v. Freeman, 43 Vt. 94. See Collier v. Jenks, 19 R. I. 137, 61 Am. St. Rep. 741, 32 Atl. 208.
17. Strong y. Doyle, 110 Mass. 92.
Waste is divided into two classes, "voluntary waste," which usually consists of affirmative acts on the part of the tenant in possession, causing damage to the premises, and "permissive waste," which involves acts of omission rather than commission on the part of such tenant. Permissive waste will be hereafter considered.18
The question of what constitutes waste is determined primarily by the consideration whether the act results in injury to the reversioner or remainderman.19 But acts on the part of the tenant, involving, unauthorized alterations of the premises, have also quite frequently been regarded as waste, even though their effect is to increase, or at least not to diminish, the value of the property.20 Acts thus constituting technical waste, though calculated to increase the value of the premises, are known as "meliorating waste." That the tenant intends subsequently to restore the premises to their former condition does not prevent his act of alteration from constituting waste, or affect his liability by reason thereof.20a
17a. Post Sec.Sec. 335-347.
17b. Waste by a cotenant obviously is not within the terms of this statement. See, as to such waste, post Sec. 292;
18. Post Sec. 286.
19. Doe d. Grubb v. Burlington, 5 Barn. & Adol. 507; Pynchon v. Stearns, 52 Mass. (11 Mete.)
304, 45 Am. Dec. 207; King v. Miller, 99 N. C. 583, 6 S. E. 660; Proffitt v. Henderson, 29 Mo. 325; McGregor v. Brown, 10 N. Y. (6 Seld.) 114. But see Livingston v. Reynolds, 26 Wend. (N. Y ) 115. 20. See, post, at notes 78-89. 20a. Agate v. Lowaibeim, 57 N. Y. 604; Hamburger & DreyA merely trifling damage has, from early times, been regarded as insufficient to support an action as for waste, the judgment being entered for defendant in case the jury finds for the plaintiff in merely nominal damages.21
In determining whether particular nets constitute waste, the condition and usages of the particular locality are to be considered, a thing thus possibly constituting waste in one locality which is not waste in another.22 It is said, indeed, that no act is waste which is sanctioned by a prevailing local usage, unless such usage is excluded by the instrument of demise.23 The general tendency of the American courts has been to restrict the application of the English law of waste, in order to adapt it to the conditions of a new and growing country, and to stimulate the development of the land by the tenant in possession.24 Even though an act or series of acts on the part of the tenant results in injury to the reversion, he is not guilty of waste if there was merely a reasonable and proper user of the tenement, having regard to the class to which it belongs.25
The question whether waste has been committed is, in an action at law, usually regarded as one for the jury under the instructions of the court, depending, as it does to a great extent, on matters of fact, such as ling v. Settegast, 62 Tex. Civ. App. 446, 131 S. W. 639.
21. Co. Litt. 54a; Harrow School v. Alderton, 2 Bos. & P. 86; Doe d. Grubb v. Barlington, 5 Barn. & Adol. 507; Doherty v. Allman, 3 App. Cas. 733; Shep-pard v. Sheppard, 3 N. C. 382.
22. Pynchon v. Stearns, 52 Mass. (11 Metc.) 304, 45 Am. Dec. 207; Drown v. Smith, 22 Me. 141; King v. Miller, 99 N. C. 583, 6 S. E. 660.
23. Per Lindley, L. J., in DashWood v Magniac  3 Ch. 306 24. 4 Kent. omm. 76; Drown v. Smith, 52 Me. 141; pynchon v. Stearns, 11 Mete. (Mass.) 304, 45 Am. Dec. 207; Proffit v. Henderson, 29 Mo. 325; Chase v. Hazle-ton. 7 N. H. 171; Gaines v. Green Pond Min. Co., 33 N. J. Eq. 603; Clemence v. Steere, 1 R. I. 273, 53 Am. Dec. 621; Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733.
25. Saner v. Bilton, 7 Ch. Div. 815.
[Sec. 280 the custom of the neighborhood, the character of the premises, the reasonableness of the use made thereof, the actual commission vel non of the acts charged, and whether the premises have been damaged by such acts.26 certain acts, however, may be so clearly injurious to the premises and beyond the power of the tenant to commit as to constitute waste as matter of law. and the court would no doubt in any such case control the verdict of the jury in that regard.27
In several states the view has been adopted that a failure on the part of a life tenant to pay taxes, as he is under an obligation to do,28 with a resulting sale, or possibility of sale, of the land for taxes,29 constitutes waste on his part. The expediency of extending the term to a mere default in the performance of a pecuniary obligation, not affecting in any way the physical condition of the land, may be doubted.