WASTE - A spoil or destruction
houses, gardens, trees, or other corporeal hereditaments,
to the disherison of him that hath the remainder or
reversion in fee simple or fee tail.
The doctrine of waste is somewhat different in this
country from what it is in England. It is adapted
to our circumstances. Waste is either voluntary or
permissive.
Voluntary waste. A voluntary waste is an act of commission,
as tearing down a house. This kind of waste is committed
in houses, in timber, and in land. It is committed
in houses by removing wainscots, floors, benches,
furnaces, window-glass, windows, doors, shelves, and
other things once fixed to the freehold, although
they may have been erected by the lessee himself,
unless they were erected for the purposes of trade.
And this kind of waste may take place not only in
pulling down houses, or parts of them, but also in
changing their forms; as, if the tenant pull down
a house and erect a new one in the place, whether
it be larger or smaller than the first or convert
a parlor into a stable; or a grist-mill into a fulling-mill
or turn two rooms into one. The building of a house
where there was none before is said to be a waste
and taking it down after it is built, is a waste.
It is a general rule that when a lessee has annexed
anything to the freehold during the term, and afterwards
takes it away, it is waste. This principle is established
in the French law.
But at a very early period several exceptions were
attempted to be made to this rule, which were at last
effectually engrafted upon it in favor of trade, and
of those vessels and utensils, which are immediately
subservient to the purposes of trade.
This relaxation of the old rule has taken place between
two descriptions of persons; that is, between the
landlord and tenant, and between the tenant for life
or tenant in tail and the remainder-man or reversioner.
As between the landlord and tenant it is now the
law, that if the lessee annex any chattel to the house
for the purpose of his trade, he may disunite it during
the continuance of his interest, But this relation
extends only to erections for the purposes of trade.
It has been decided that a tenant for years may remove
cider-mills, orna-mental marble chimney pieces, wainscots
fixed only by screws, and such like. A tenant of a
farm cannot remove buildings which he has erected
for the purposes of husbandry, and the better enjoyment
of the profits of the land, though he thereby leaves
the premises the same as when he entered.
Voluntary waste may be committed on timber, and in
the country from which we have borrowed our laws,
the law is very strict. In Pennsylvania, however,
and many of the other states, the law has applied
itself to our situation, and those acts which in England
would amount to waste, are not so accounted here.
Where wild and uncultivated land, wholly covered with
wood and timber, is leased, the lessee may fell a
part pf the wood and timber, so as to fit the land
for cultivation, without being liable to waste, but
he cannot cut down the whole so as permanently to
injure the inheritance. And to what extent the wood
and timber on such land may be cut down without waste,
is a question of fact for the jury under the direction
of the court. The tenant may cut down trees for the
reparation of the houses, fences, hedges, stiles,
gates, and the like and for mixing and repairing all
instruments of husbandry, as ploughs, carts, harrows,
rakes, forks, etc. The tenant may, when he is unrestrained
by the terms of his lease, out down timber, if there
be not enough dead timber. Where the tenant, by the
conditions of his lease, is entitled to cut down timber,
he is restrained nevertheless from cutting down ornamental
trees, or those planted for shelter or to exclude
objects from sight.
Windfalls are the property of the landlord, for whatever
is severed by inevitable necessity, as by a tempest,
or by a trespasser, and by wrong, belongs to him who
has the inheritance.
Waste is frequently committed on cultivated fields,
orchards, gardens, meadows, and the like. It is proper
here to remark that there is an implied covenant or
agreement on the part of the lessee to use a farm
in a husbandman-like manner, and not to exhaust the
soil by neglectful or improper tillage. It is therefore
waste to convert arable to woodland and the contrary,
or meadow to arable; or meadow to orchard. Cutting
down fruit trees although planted by the tenant himself,
is waste; and it was held to be waste for an outgoing
tenant of garden ground to plough up strawherry beds
which be had bought of a former tenant when he entered.
It is a general rule that when lands are leased on
which there are open mines of metal or coal or pits
of gravel, lime, clay, brick, earth, stone, and the
like, the tenant may dig out of such mines, or pits.
But he cannot open any new mines or pits without being
guilty of waste and carrying away the soil, is waste.
Permissive waste. Permissive waste in houses is punishable
where the tenant is expressly bound to repair, or
where he is so bound on an implied covenant. It is
waste if the tenant suffer a house leased to him to
remain uncovered so long that the rafters or other
timbers of the house become rotten, unless the house
was uncovered when the tenant took possession.
Of remedies for waste. The ancient writ of waste
has been superseded. It is usual to bring case in
the nature of waste instead of the action of waste,
as well for permissive as voluntary waste.
Some decisions have made it doubtful whether an action
on the case for permissive waste can be maintained
against any tenant for years. Even where the lessee
covenants not to do waste, the lessor has his election
to bring either an action on the case, or of, covenant,
against the lessee for waste done by him during the
term. In an action on the case in the nature of waste,
the plaintiff recovers only damages for the waste.
The latter action has this advantage over an action
of waste, that it may be brought by him in reversion
or remainder for life or years, as well as in fee
or in tail; and the plaintiff is entitled to costs
in this action, which he cannot have in an action
of waste.
