the like, which is the act of Providence, it is no waste: but otherwise, if the house be burned by the carelessness or negligence of the lessee: though now, by the statute 6 Anne, c. 31, no action will lie against a tenant for an

colliery might be worked without it, though not so conveniently. 3 Atk. 13. With regard to a tenant for years, it is fully established he may take down useful and necessary erections for the benefit of his trade or manufacture and which enable him to carry it on with more advantage. Bac. Abr. Executor, H. 3. 3 Esp. II. 2 East, 88. It has been so held in the case of cider-mills. A tenant for years may also carry away ornamental marble chimney-pieces, wainscot fixed only by screws, and such like. But erections for the purposes of farming and agriculture do not come under the exception with respect to trade, and cannot be taken down again. See Elwes v. Maw, 3 East, 52. And where the tenant has covenanted to leave all buildings, etc., he cannot remove even erections for trade. I Taunt. 19. Where a tenant for years has a right to remove erections and fixtures during his lease, and omits doing it, he is a trespasser afterwards for going upon the land, but not a trespasser de bonis asportatis [For carrying away the goods]. 2 East, 88. A farmer who raises young fruit-trees on the demised land for filling up his lessor's orchards is not entitled to sell them, unless he is a nurseryman by trade. 4 Taunt. 316.—CHITTY.

In the time of lord Coke the general rule was, that whatever was once annexed to the freehold became part thereof, and could not afterwards be separated but by him who was entitled to the inheritance: to have taken it away would have been waste in any other person. Indeed, the law is thus laid down in all the old, and recognized to have been so in the more modern, cases. This rule, however, has been relaxed, especially in cases between landlord and tenant, and is made more favorable to the latter. When a man, for instance, rents a house, a mill, or a shop, and, for his own convenience, puts stoves in the house, or a packing-press, or elevators in the mill, or a crane and pulley, or other like thing, in the shop, the tenant may remove any of the articles thus put up for his own convenience or advantage. White v. Arndt, 1 Whart. 91. Raymond v. White, 7 Cowen, 319. However, even as between landlord and tenant, fixtures erected by the latter, and which he is entitled to remove, must be removed during the term: after the expiration of the term the tenant can neither remove them nor recover their value from the landlord. Shepard v. Spaulding, 4 Metcalf, 416. The leading English case on this subject is Elwes v. Maw, 3 East, 52. Lord Ellenborough's opinion has always been referred to with approbation, as settling the principles of the law in regard to fixtures. He says, Questions respecting the right to what are ordinarily called fixtures principally arise between three classes of persons. Ist. Between different descriptions of representatives of the same owner of the inheritance, viz., between his heir and executor. In this first case, i. e., as between heir and executor, the rule obtains with the most rigor in favor of the inheritance, and against the right to lisannex therefrom, and to consider as personal chattel, any thing which has been affixed thereto. 2dly. Between the executors of tenant for life or in tail and the remainderman or reversioner,-in which case the right to fixtures is considered more favorably for executors than in the preceding case between heir and executor. The third case, and that in which the greatest latitude and indulgence has always been allowed in favor of the claim to having any particular article considered as personal chattels as against the claim in respect to freehold or inheritance, is the case between landlord and tenant."

The privilege of removing fixtures does not hold in general between the owner of the soil and third persons having a vested interest. The owner may, of course, at any time disannex fixtures from the freehold, and by that act make them personalty, but not as against creditors who had acquired a lien upon it as realty. Gray v. Holdship, 17 S. & R. 413. Morgan v. Arthurs, 3 Watts, 140. So between vendor and vendee a steamengine with its fixtures, used to drive a bark-mill, and pounders to break hides in a tannery, pass by a sale of the freehold. Oves v. Ogilsby, 7 Watts, 106. Despatch Line v. Bellamy Manufacturing Co., 12 N. Hamp. 205. Indeed, there are some things used with, and necessary to the enjoyment of, the freehold, which form a part of it, though not annexed to it, such as keys; and on the same principle it has been held in many cases that machinery which is a constituent part of a manufactory, for the purpose of which the building has been adapted, without which it would cease to be such manufactory, is part of the freehold though it be not actually fastened to it. Whether fast or loose, all the machinery of a manufactory which is necessary to constitute it, and without which it would not be a manufactory at all, must be regarded as realty and a part of the freehold. Voorhis v. Freeman, 2 W. & S. 116. Pyle v. Pennock, 2 W. & S. 390. Butler v. Page, 7 Metcalf, 40. Rice v. Adams, 4 Harrington, 332. The old and stricter rule, which looks to annexation as the criterion in such cases, has been adhered to in many other cases. Cresson v. Stout, 17 Johns. 116. Vanderpoel v. Allen, 10 Barbour, S. C. 157. Taffe v. Warwick, 3 Blackf. III. Bush v. Baxter, 3 Missouri, 207.-SHARSWOOD.

"A more liberal rule is now applied, and actual damage must be shown in order

accident of this kind. (28) Waste may also be committed in ponds, dovehouses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner, when he comes to the inheritance. (n) Timber also is part of the inheritance. (o) Such are oak, ash, and elm in all places; and in some particular countries, by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste. (p) (29) But *282] underwood the tenant may cut down at any seasonable time that he pleases; (7) and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions. (r) The conversion of land from one species to another is waste. To convert wood, meadow, or pasture into arable; to turn arable, meadow, or pasture into woodland; or to turn arable or woodland into meadow or pasture, are all of them waste. (s) (30) For, as Sir Edward

Coke observes, (t) it not only changes the course of husbandry, but the

(n) Co. Litt. 53.

(0) 4 Rep. 62.

(p) Co. Litt. 53.

(q) 2 Roll. Abr. 817.

(r) Co. Litt. 41.
(8) Hob. 296.
(t) 1 Inst. 53.

that the action may lie; and although even now a material and permanent change in the character of the building, and the uses to which it might be put, will not be permitted, yet any slight or immaterial change, as the cutting of a door, or the opening of two rooms into one, will be permissible whenever it is possible for the premises to be restored to their original condition at the end of the term, and in no case will the erection of new buildings be waste." Tiedeman on Real Prop. 77, enl. ed. p. 62 (1892), and cases there cited. See also Brown v. Dinsmoor, 3 N. H. 108 (1834).

(28) With a proviso, however, that the act shall not defeat any agreement between landlord and tenant. See the statute. But if a lessee covenants to pay rent, and to repair with an express exception of casualties by fire, he may be obliged to pay rent during the whole term, though the premises are burnt down by accident and never rebuilt by the lessor. I T. R. 310. Nor can he be relieved by a court of equity, (Anst. 687,) unless perhaps the landlord has received the value of his premises by insuring. Amb. 621. And if he covenants to repair generally, without any express exceptions, and the premises are burnt down, he is bound to rebuild them. 6 T. R. 650.—CHITTY.

(29) But the tenant has the right to the fruit and mast growing upon it, and the loppings for fuel, and the benefit of the shade for his cattle. Accordingly, all fruit which may be plucked, or bushes or trees, not timber, which may be cut or blown down, will belong to the tenant; but timber trees, which may be cut or blown down, will immediately become the property of the owner of the first estate of inheritance in the land. But if the tenant should be a tenant without impeachment of waste (sine impetitione vasti) timber cut down by him in a business-like manner will become his own property when actually severed, but not before, for the words "without impeachment of waste,' imply a release of all demands in respect of any waste which may be committed. If, however, the words should be merely without being impeached for waste, the property in the trees when cut would still remain in the landlord, and the action only would be discharged which he might otherwise have maintained against the tenant for the waste committed by the act of felling the timber. Williams on Pers. Prop. 4 ed. p. 18 (1872), *p. 18, 19.

"In the United States, whether cutting of any kind of trees in any particular case is waste, seems to depend upon the question whether the act is such as a prudent farmer would do with his own land having regard to the land as an inheritance, and whether the doing it would diminish the value of the land as an estate." Wash. on Real Prop. vol. I, 108 (1887). See also Tiedeman on Real Prop. 74, enl. ed. p. 58 (1892).

In the case of wild and uncultivated lands, the tenant would have the right to clear the land of trees, whatever they may be, if such clearing was necessary for the purpose of cultivating it; and the timber cut by the tenant in clearing, belongs to him, which he may sell for his own profit. But in no case is the tenant allowed to cut timber for sale, unless this is the customary mode of using the land. Tiedeman on Real Prop. 74, enl. ed. p. 59 (1892), and cases there cited. Johnson v. Johnson, 18 N. H. 594, 596 (1847). (30) The rule in this country is that no such change will be waste unless it results in a permanent injury to the inheritance; but it will be waste if the tenant permits the arable or meadow land to be overgrown with brushwood, or if he exhausts the land by unwise tillage. See Tiedeman on Real Prop. enlarged Am. ed. ¿ 72 (1892).

evidence of the estate; when such a close, which is conveyed and described as pasture, is found to be arable, and e converso. (30) And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value. (u) To open the land to search for mines of metal, coal, etc. is waste; (31) for that is a detriment to the inheritance: (v) (32) but if the pits or mines were open before, it is no

(u) 1 Lev. 309.

(30) [Conversely.]

(v) 5 Rep. 12.

(31) Washb. on Real Prop. 5 ed. 150 (1887). Tiedeman on Real Prop. 2 ed. 60, ? 75 (1892).

(32) It is in order to prevent irremediable injury to the inheritance that the court of chancery will grant injunctions against waste and allow affidavits to be read in support of such injunctions. The defendant might possibly be able to pay for the mischief done if it could ultimately be proved that his act was tortious; but if any thing is about to be abstracted which cannot be restored in specie, no man ought to be liable to have that taken away which cannot be replaced merely because he may possibly recover (what others may deem) an equivalent in money. Berkeley v. Brymer, 9 Ves. 356. But, although lord Nottingham (in Tonson v. Walker, 3 Swanst. 679) intimated that a probability of right might authorize an application for an injunction against waste, this was only an obiter dictum [Incidental opinion]. It is a general rule that, in order to sustain a motion in restraint of waste, the party making the application must set forth and verify an express and positive title in himself, (or in those whose interests he has to support:) a hypothetical or disputed title will not do. Davis v. Leo, 6 Ves. 787. Whitelegg v. Blacklegg, I Brown, 57. A plaintiff who, after failing in ejectment, comes to equity to restrain waste, stating that the defendant claims by adverse title, it has been stated, states himself out of court. Pillsworth v. Hopton, 6 Ves. 51. This dictum may perhaps admit occasional qualification, (see Norway v. Rowe, 19 Ves. 154. Kinder v. Jones, 17 Ves. 110. Hodgson v. Dean, 2 Sim. & Stu. 224;) but, clearly, where the title is disputed as between a devisee and the heir-at law, neither an injunction to stay waste nor a receiver will be granted on the application of either party. Jones v. Jones, 3 Meriv. 174. Smith v. Collyer, 8 Ves. 90. It is not, however, to be understood that a plaintiff who, though he has no legal title, has concluded a contract authorizing him to call upon the court to clothe his possession with the legal title, cannot sustain a motion in restraint of waste, provided the defendant's answer admits such contract. Norway v. Rowe, 19 Ves. 155.

In general cases, for the purpose of dissolving an injunction granted ex parte [From hearing one side], the established practice is to give credit to the answer when it comes in if it denies all the circumstances upon which the equity of the plaintiff 's application rests, and not to allow affidavits to be read in contradiction to such answer. Clapham v. White, 8 Ves. 36. But an exception to this rule is made in cases of alleged irremediable waste, (Potter v. Chapman, Ambl. 99,) and in cases analogous to waste, (Peacock v. Peacock, 16 Ves. 51. Gibbs v. Cole, 3 P. Wms. 254;) yet, even in such cases, the plaintiff's affidavits must not go to the question of title, but be confined to the question of fact as to waste done or threatened. Morphett v. Jones, 19 Ves. 351. Norway v. Rowe, 19 Ves. 153. Countess of Strathmore v. Bowes, 1 Cox, 264. And as to matters which the plaintiff was acquainted with when he filed his bill, he ought at that time to have stated them upon affidavit, in order to give the defendant an opportunity of explaining or denying them by his answer, (Lawson v. Morgan, I Price, 306;) though, of course, acts of waste done subsequently to the filing of the bill would be entitled to a distinct consideration. Smythe v. Smythe, I Swanst. 253. And where allegations in an injunction bill have been neither admitted nor denied in the answer, there can be no surprise on the defendant; and it should seem that affidavits in support of those allegations may be read, though they were not filed till after the answer was put in. Morgan 7. Goode, 3 Meriv. II. Jefferies v. Smith, 1 Jac. & Walk. 300. Barrett v. Tickell, Jacob's Rep. 155. Taggart v. Hewlett, 1 Meriv. 499. Neither vague apprehension of an intention to commit waste, nor information given of such intention by a third person, who merely states his belief, but not the grounds of his belief, will sustain an application for an injunction. The affidavits should go (not necessarily, indeed, to positive acts, but at least) to explicit threats. A court of equity never grants an injunction on the notion that it will do no harm to the defendant if he does not intend to commit the act in question. An injunction will not issue unless some positive reasons are shown to call for it. Hannay v. M'Entire, II Ves. 54. Coffin v. Coffin, Jacob's Rep. 72.

It was formerly held that an injunction ought not to go against a person who was a mere stranger, and who consequently might, by summary legal process, be turned out of possession of premises which he was injuring. Such a person, it was said, was a trespasser; but, there not being any privity of estate, waste, strictly speaking, could not be alleged against him. Mortimer v. Cottrell, 2 Cox, 205. But this technical rule is

waste for the tenant to continue digging them for his own use; (w) (33) for it is now become the mere annual profit of the land. These three are the general heads of waste, viz., in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value, of the inheritance, is considered by the law as waste. (34)

Let us next see who are liable to be punished for committing waste. And by the feodal law, feuds being originally granted for life only, we find that the rule was general for all vassals or feudatories; "si vasallus feudum dissipaverit, aut insigni detrimento deterius fecerit, privabitur."(x) (35) But in our ancient common law the rule was by no means so large; for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons; guardian in chivalry, tenant in dower, and tenant by the *283] *curtesy; (y) (36) and not in tenant for life or years. (z) And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and, if he did not, it was his own default. (37) But, in favor of the owners of the inheritance, the statutes of Marlbridge, 52 Hen. III. c. 23, and of Gloucester, 6 Edw. I. c. 5, provided that the writ

(w) Hob. 295.

(x) Wright, 44.

(y) It was, however, a doubt whether waste was punishable at the common law in tenant by the

curtesy. Regist. 72. Bro. Abr. tit. waste, 88. 2
Inst. 301.
(z) 2 Inst. 299.

overturned. It is now established, by numerous precedents, that, wherever a defendant is taking the substance of a plaintiff's inheritance, or committing or threatening irremediable mischief, equity ought to grant an injunction, although the acts are such as, in correct technical denomination, ought rather to be termed trespasses than waste. Mitchell v. Dors, 6 Ves. 147. Hanson v. Gardiner, 7 Ves. 309. Twort v. Twort, 16 Ves. 130. Earl Cowper v. Baker, 17 Ves. 128. Thomas v. Oakley, 18 Ves. 186.

Any collusion by which the legal remedies against waste may be evaded will give to courts of equity a jurisdiction over such cases often beyond, and even contrary to, the rules of law. Garth v. Cotton, 3 Atk. 755. Thus, trustees to preserve contingent remainders will be prohibited from joining with the tenant for life in the destruction of that estate, for the purpose of bringing forward a remainder, and thereby enabling him to gain a property in timber, so as to defeat contingent remaindermen; and wherever there is an executory devise over after an estate for life subject to impeachment of waste, equity will not permit timber to be cut. Stansfield v. Habergham, 10 Ves. 278. Oxenden 'v. Lord Compton, 2 Ves. Jr. 71. So, though the property of timber severed during the estate of a strict tenant for life vests in the first owner of the inheritance, yet, where a party having the reversion in fee is, by settlement, made tenant for life, if he, in fraud of that settlement, cuts timber, equity will take care that the property shall be restored to, and carried throughout all the uses of, the settlement. Powlett v. Duchess of Bolton, 3 Ves. 377. Williams v. Duke of Bolton, I Cox, 73.-CHITTY.

(33) But he cannot open new ones. In the case of minerals, he may follow the same vein and for that purpose make new shafts, railroads, and other improvements. Tiedeman on Real Prop. 75, enl. ed. p. 60 (1892), and cases there cited, and this right he may sell to others. The same principle applies to salt works, if there is an existing salt well in the premises and a manufactory of salt, it would not be waste to dig a new well in connection with it. Washburn on Real Prop. 5 ed. vol. 1, p. 151 (1887). *P. III, 2 Woodfall on Land. & Ten. 608.

(34) Whether a particular act constitutes waste is a question of fact for the jury to determine; if it does damage to the reversion, and is not one of the ordinary uses to which the land is put, it is waste, and the same act might be waste in one part of the county and not in another. Tiedeman on Real Prop. 73. Enl. ed. p. 58 (1892). See also Shep. Touch. 126.

(35) [If a vassal shall have wasted the fee, or lessened its value by any notorious injury, he shall be deprived of it."]

(36) Buckley v. Buckley, 11 Barb. (N. Y.) 64 (1850).

(37) I Addison on Torts, 6 ed. (Bayliss) 516 (1891).

740

of waste shall not only lie against tenants by the law of England, (or curtesy,) and those in dower, but against any farmer or other that holds in any manner for life or years. (38) So that, for above five hundred years past, all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetere, or sue him for waste, committed. (39) But tenant in tail after possibility of issue extinct is not impeachable for waste; because his estate was at its creation an estate of inheritance, and so not within the statutes.(a)(40) Neither does an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; because against them the debtor may set off the damages in account:(b) but it seems reasonable that it should lie for the reversioner, expectant on the determination of the debtor's own estate, or of these estates derived from the debtor. (c)

The punishment for waste committed was, by common law and the statute of Marlbridge, only single damages; (d) except in the case of guardian, who also forfeited his wardship(e) by the provisions of the great charter;() but the statute of Gloucester directs that the other four species of tenant shall lose and forfeit the place wherein the waste is committed, and also treble damages to him that hath the inheritance. (41) The expression of the statute is, "he shall forfeit the thing which he hath wasted;" and it hath been determined that under these words the place is also included.(g) And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a *house, the [*284 whole house shall be forfeited; (h) because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood, (or perhaps in one room of a house, if that can be conveniently separated from the rest,)

(a) Co. Litt. 27. 2 Roll. Abr. 820, 828.

(b) Co. Litt. 54. (c) F. N. B. 58.

(d) 2 Inst. 146.

(e) Ibid. 300.
(f) 9 Hen. III. c. 4.
(g) 2 Inst. 303.
(h) Co. Litt. 54.

(38) The tenant in dower for life or years is liable to the reversioner for waste done the premises even by a stranger, and he may therefore maintain an action against a stranger for an injury to the reversion; and the judgment in such an action would bar an action by the reversioner for the same injury, for the tenant and reversioners are privies in estate. Willey v. Laraway, 64 Vt. (Prouty) 561 (1892). Attersoll v. Stevens, I Taunt. 198. White v. Wagner, 4 Md. (H. & J.) 391 (1818). I Washb. on Real Prop. 5 ed. 157 (1887).

(39) But such tenant is not at liberty to commit wilful and malicious waste, and courts of chancery will interpose by injunction to restrain its commission, or compel him to repair the waste, if actually committed. Washb. on Real Prop. 5 ed. vol. 1, pp. 157 and 161 (1887).

(40) For some little time before the statute, actions for waste had occasionally been brought against tenants for life. Still the action shows strong signs of being new. Pollock & Maitland's Hist. of Eng. Law, bk. ii. p. 9 (1895).

(41) The courts of the various states have held differently in respect to the extent to which the common law as to waste or the statutes of Marlbridge and Gloucester have been adopted in the different states. The tendency of late has been, both in England and this country, to do away with the severe remedies provided in the latter statute, and to substitute with a process in equity for restraining the commission of waste, or an action on the case in which the actual damages done to the inheritance may be recovered by the reversioner. Such now is the case by statute in England, where the action of waste is abolished by 3 and 4 Wm. IV. c. 27, 36. And the action in this country has gone very much into disuse in the states where it is recognized by the law. Washb. on Real Prop. 5 ed. (1887) vol. 1, p. 162. See also Tiedeman on Real Prop. 2 ed. & 81 (1892). Williams on Real Prop. 24.