WASTE, says Coke (Co. Litt., 53), " vastum dicitur a vastando, of wasting and depopulating ;" but he gives no further definition. The notion of waste seems to be when a tenant for years, by the courtesy, by dower, or for life, so deals with land, or such things as are attached to the soil, as to destroy them or greatly damage them. Accordingly, the old action of waste lay against such tenants by him who had the immediate estate of inheritance.
Waste is either voluntary, which is an act of commission, or permissive, which is a matter of omission only. Voluntary waste chiefly consists in felling timber-trees, pulling down houses, or permanently altering any part of a house, in opening new mines or quarries, in changing the course of husbandry, and in the destruction of heir-looms. Permissive waste consists chiefly in allowing the buildings upon an estate to go to decay. It is a general rule that the waste which arises from the act of God is excuseeble, as if a house falls in consequence of a tempest. But if the destruction of the house by the tempest has been owing to its being out of repair, the tenant is guilty of waste; and so be will be if he do not repair a house which has been uncovered or damaged only by a tempest. In the same manner, if the banks of a river, while in a state of proper repair, are destroyed by a sudden flood, the tenant is not answerable. (1 ' Inst.,' 53 a, b.) The rule applies also to the case of a house burnt down by accident. But in these and all similar cases the tenant will still be bound to repair or rebuild, if he has entered into a general covenant to repair.
Tenants in tail, as they have estates of inheritance, are entitled to commit every kind of waste ; but this power continues and can be exercised only during the life of the tenant in tail. When it is said that a tenant in tail may commit every kind of waste, the meaning is that he can do those acts to the land which tenants who have not an estate of inheritance cannot do. A mortgagee in fee in possession has a right at law to commit any kind of waste, being then considered as the absolute owner of the inheritance; but he will be restrained by a court of equity, which will direct an account of timber cut down, and order it to be applied in reductio'n of the mortgage debt. (2 Vern. 392.) Copyholders cannot, unless there be a special custom to warrant
it, commit any kind of waste, and every species of waste not warranted by the custom of the manor operates as a forfeiture of the copyhold. (13 'Rep.,' 08.) The original remedy for waste was that under the statute of Marl. bridge, 52 Henry III., c. 24, which gave to the owner of the inheritance an action of waste against the tenant for life, in which he was entitled to recover full damages for the waste committed. But as this remedy was often found inadequate, it was enacted by the statute of Gloucester, 6 Edw. I., c. 5, that the place wasted should be recovered, together with treble damages for the injury done to the inheritance. No person was entitled to an action of waste against the tenant for life under these statutes except him who had the estate of inheritance imme diately expectant on the determination of the estate for life; so that if there were an existing estate of freehold interposed between the estate for life and that of inheritance, the right of action was sus pended. (1 'Inst.,' 53, b.) The action of waste had long given way to the much more expeditious and easy remedy by an action of trespass on the case in the nature of waste, which may be brought by the person in reversion or remainder for life or for years, as well as in fee, and in which the plaintiff is entitled to costs, which he could not have in an action of waste (2 Saund., 252, n. 7); and the writ of waste is now finally abolished by the 3 & 4 Wm. IV., c. 27, s. 36. It seems that there was formerly no remedy for mere permissive waste after the death of the tenant, though if the estate of the tenant was benefited by the injury inflicted, as if money was derived to it from the sale of trees cut down, an action for the value of the property might have been sustained against the executor. (Cowp. 376.) Now, however, by the 3 & 4 Wm. IV., c. 52, s. 2, remedies by action of trespass or trespass on the case are given against the executors of any deceased person for any wrong committed by him in his lifetime against the real or personal property of another within six months of his death, provided the action be brought within six months after the personal representatives have taken upon themselves the administration of the estate.