A tenant of 71, dove-house, warren, park, fish-pond, or the like, would also be guilty of waste if he took away animals therefrom to such an extent as not to leave as large a stock of them as he found when he came in. Coke, Litt. 53 ; 2 Leon. 222.
Windfalls are the property of the landlord ; for whatever is severed by inevitable neces sity, as, by a tempest, or by a trespasser, and by wrong, belongs to him who has the inherit ance. 3 P. Will. Ch. 268 ; 11 Coke, 81; Bacon, Abr. Waste (D 2).
6. In general, a tenant is answerable for waste although it is committed by a stranger ; for he is the custodian of the property, and must take his remedy over. 2 Dougl. 745 ; 1 Taunt. 198 ; 1 Den. N. Y. 104. But he is not liable when the damage is caused by lightning, tempest, or a public enemy. Coke, 2d Inst. 303 ; F. Moore, 69 ; 5 Coke, 21 ; Sheppard, Touchst. 173 ; 4 Kent, COMM. 77. He was also liable, at common law, for all damages done by fire, accidental or other wise, upon the premises ; but the English statute of 14 Geo. III. c. 78, first enacted that no action should be bad against any person in whose house, chamber, or other building or on whose estate a fire shall accidentally begin ; and this statute has been very gene rally re-enacted throughout the United States. The protection afforded by these statutes, however, extends only to a case of accidental fire,—that is, to one which cannot be traced to any particular or wilful cause,—and stands opposed to the negligence of either servants or masters. And therefore an action still lies against a person upon whose premises a fire commences through the negligence of himself or his servants and is productive of injury to his neighbor. 1 Den. N. Y. 207 ; 8 Johns.N. Y.421 ; 2 Harr. Del. 443 ; 21 Pick. Mass. 378 ; 1 Hoist. N. J. 127 ; 6 Taunt. 44; Taylor, Landl. & T. 196.
I. Permissive waste to buildings consists in omitting to keep them in tenantable repair ; suffering the timbers to become rotten by neglecting to cover the house ; or suffering the walls to fall into decayfor want of plaster ing, or the foundation to be injured by neg. lecting to turn off a stream of water, and the like. Coke, Litt. 53 a; Ow. 43. See LANDLORD AND TENANT. At CODOMOD kW, the mere suffering of a house to remain un roofed, if it was so at the commencement of the lease, would not be waste, but a tenant assumed the responsibility of any other part of the house thereby becoming ruinous or decayed. And so, although the injury or destruction of a house by lightning, tempest, or a public enemy would not be waste, yet to suffer it to remain ruined would be. 2 Rolle, Abr. 818 ; F. Moore, 69 ; 10 Ad. & E. 398 ; 4 Leon. 240. Permissive waste in houses, however, as a general rule, is now only punishable when a tenant is bound to repair, either expressly or by implication. 4 Bos. & P. 298 ; 10 Barnew. & C. 312.
S. The redress for this injury is of two kinds, preventive and corrective. A rever sioner or remainderman, in fee, for life, or for years, may now recover, by an ordinary action at law, all damages he has sustained by an act of voluntary waste committed by either his tenant or a stranger, provided the injury affects his reversion. But as against
a tenant for years, or from year to year, he can only sustain an action for damages for permissive waste if his lease obliges the ten ant to repair. 2 Saund. 252 d, note ; 3 East, 38 ; 10 Barnew. & C. 312. The statutes of the several states also provide special relief against waste in a great variety of cases, following, in general, the English Statute of Gloucester, which not only forfeits the pre mises, but gives exemplary damages for all the injury done. These legal remedies, how ever, are still so inadequate, as well to pre vent future waste as to give redress for waste already committed, that they have in a great measure given way to the remedy by bill in equity, by which not only future waste, whether voluntary or permissive, will be pre vented, but an account may be decreed and compensation given for past waste in the same proceeding. 2 Mer. Ch. 408 ; 1 Ves. Ch. 93 ; 2 Story, Eq. Jur. 179 ; Taylor, Landl. & T. 690.
9. The reversioner need not wait until waste has actually been committed before bringing his action ; for if be ascertains that the tenant is about to commit any act which would operate as a permanent injury to the estate, or if he threatens or shows any inten tion to commit waste, the court will at once interfere and restrain him by injunction from doing so. 2 Atk. Ch. 182 ; 18 Ves. Ch. 355 ; 2 Ves. tt B. Ch. Ir. 349 ; 1 Johns. Ch. N. Y. 435; 1 Jac. & W. Ch. 653.
Sometintes a tenant, whether for life or for years, by the instrument creating his estate, holds his lands without impeachment of waste. This expression is equivalent to a general permission to commit waste, and at common law would authorize him to cut timber, or open new mines and convert the produce to his own use. Coke, Litt. 220 ; 11 Coke, 81 b; 15 Ves, 425. But equity puts a limited construction upon this clause, and only allows a tenant those powers under it which a pru dent tenant in fee would' exercise, and will, therefore, restrain !aim from pulling down or dilapidating houses, destroying pleasure houses, or prostrating trees planted for orna ment or shelter. 2 Vern. Ch. 739 ; 3 Atk. Ch. 215 ; 6 Ves. Ch. 110 ; 16 id. 375.
See, on the subject in general, Woodfall, Landl. & T. 217, e. 9, s. 1 ; Bacon, Abr. Waste ; Viper, Abr. Waste ; Comyns, Dig. Waste ; Sharswood, Blackst. Comm. 180; 1 Washburn, Real Prop.
As to remedies against waste by injunc-, tion, see 1 Vern. Ch. 23, n.; 5 P. Will. 268, n. F ; 1 Eq. Cas. Abr. 400 ; 6 Ves. Ch. 107, 419, 787 ; 8 id. 70 ; 16 id. 375 ; 2 Swanst. Ch. 251 ; 3 Madd. Ch. 498 ; Jac. Ch. 70 ; Drewry, Inj. pt. 2, c. 1, p. 134. As between tenants in common, 5 Taunt. 24 ; 16 Ves. Ch. 132 ; 19 ic/. 159 ; 3 Brown, Ch. 622 ; 2 Dick. Ch. 667 ; Bouvier, Inst. Index ; INJuNcrioN.
As to remedy by writ of estrepement to prevent waste, see ESTREPEMENT ; Woodfall, Landl. & T. 447 ; 2 Yeates, Penn. 281 ; 4 Smith, Laws of Penn. 89 ; 3 Blackstone, Comm. 226.
As to remedies in eases of fraud in com mitting waste, see Hovenden, Frauds, c. 7, pp. 226-238.
In Commercial Law.
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