WASTE. Spoil or destruction, done or permitted, to lands, houses, or other corporeal hereditaments, by the tenant thereof', to the prejudice of the heir or of .him in reversion or remainder.
Permissive waste consists in the mere neg lect or omission to do what will prevent injury : as, to suffer a house to go to decay for the want of repair. And it may be in curred in respect to the soil, as well as to the buildings, trees, fences, or live stock on the premises.
Voluntary waste consists in the commission some destructive act: as, in pulling down house or ploughing up a flower-garden. 1 Paige, Ch. N. Y. 573., 2. Voluntary waste is committed upon mltivatedfidds, orehards, gardens, meadows, and the like, whenever a tenant uses them contrary to the usual course of husbandry or in such a manner as to exhaust the soil by negligent or improper tillag,e. 5 Term, 373; 6 Ves. Ch. 328 ; 2 Hill, N. Y. 157 ; 2 Boo. & P. 86. It is, therefore, waste to convert arable into wood land, or the contrary. Coke, Litt. 53 b. Cutting down fruit-trees, although planted by the tenant himself, is waste, 2 Rolle, Abr. 817 ; and it was held b be waste for an outgoing tenant of garden ground to plough up strawberry-beds which he had bought of a former tenant when he entered. 1 Campb. 227. 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 ; hut he cannot open any new mines or pits without being guilty of waste. Coke, Litt. 53 b. See MINES. Any carrying away of the soil is also waste. Comyns, Dig. Waste (D 4) ; 14 East, 489 ; 2 Hill, N. Y. 157 ; 6 Barb. N. Y. 13 ; Coke, Litt. 53 b; 1 Schoales & L. Ir. Ch. 8.
3. It is committed in houses by pulling them down, or by removing wainscots, floors, benches, furnaces, windows, doors, shelves, and other things once fixed to the freehold, although they may have been erected by the lessee himself, unless they are mere fixtures. See FIXTURES. 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 its place, whether it be larger or smaller than the first, 2 Rolle, Abr. 815 ; or convert a parlor into a stable, or a grist-mill into a fulling-mill, 2 Rolle, Abr.
814, 815, or turn two rooms into one. 2 Rolle, Abr. 815. • The building of a house where there was none before was, by the strict rules of the common law, said to be waste, Coke, Litt. 53 a ; and taking it down after it was built was waste also. Comyns, Dig. Waste (D 2) ; ,2 East, 88 ; 1 Barnew. & Ad-. 161 ; 8 Mass. 416 ; 1 Mete. Mass. 27 ; 4 Pick. Mass. 310 ; 19 N. Y. 234 ; 16 Conn. 322 ; 2 M'Cord, So. C. 329 ; 1 Harr. & J. Md. 289 ; 1 Watts, Penn. 378.
4. Voluntary waste may also be committed upon timber ; and in those countries where timber is scarce and valuable, the law is strict in this respect. But many acts which in England would amount to waste are not so here. The law of waste accommodates itself to the varying wants and conditions of dif. ferent countries : that will not, for instance, be waste in an entirewoodland country which would be so in a cleared one. The clearing up of' land for the purposes of tillage in a new country where trees abound is no injury to the inheritance, but, on the contrary, is a benefit to the remainderman, so long as there is sufficient timber left and the land cleared bears a proper relative proportion to .the whole tract. 4 Kent, Comm. 316 ; 3 Yeates, Penn. 261 ; 4 Watts, Penn. 463 ; 6 Munf. Va. 134 ; 1 Rand. Va. 258 ; 2 South. N. J. 552 ; 6 T. B. Monr. Ky. 342 ; 6 Yerg. Tenn. 334 ; 5 Mas. C. C. 13 ; 2 Hayw. No. C. 339 ; 26 Wend. N. Y. 122 ; 2 Hill, N. Y. 157.
5. The extent to which wood and timber on such land may be cut without waste, is a question of fact for a jury to determine under the direction of the court. 7 Johns. N. Y. f.27. A tenant may always cut trees for the repair of the houses, feneps, hedges, stiles, gates, and the like, Coke, Litt. 53 b, and for making a.nd repairing all instruments of husbandry : as, ploughs, carts, harrows, rakes, forks, etc. Wood, Inst. 344. See &TOTER& And he may, when unrestrained by the terms of the lease, cut timber for firewood, if there be not enthigh dead timber for such purposes. Comyns, Dig. Waee (D 5) : Fitzherbert, Nat. Brev. 59 m. But where, under such circum stances, he is entitled to cut down timber, he is restrained, nevertheless, from cutting orna mental trees or those planted for shelter, 6 Ves. Ch. 419, or to exclude objects from sight. 16 Ves. Ch. 375 ; 7 Ired. Eq. No. C. 197 ; 6 Barb. N. Y. 9.