It is committed in houses by removing things once fixed to the freehold, although they may have been erected by the lessee himself, unless they are mere fixtures. See FIXTURES. It may take place not only in Pulling down houses or parts of them, but also in changing their forms ; as, if the ten ant pull clown a house and erect a new one in its place, whether it be larger or smaller than the first; 2 Rolle, Abr. 815; Dooly v. Stringham, 4 Utah 107, 7 Pac. 405; 13 Q. B. 588; or convert a parlor into a stable, or a grist-mill into fulling-mill; ibid.; or turn two rooms into one ; ibid. See 13 Q. B. 572; 14 Ves. 526. The placing of an excessive weight in a building, by reason of which it falls, is waste ; Chalmers v. Smith, 152 Mass. 561, 26 N. E. 95, 11 •L. R. A. 769. The build ing of a house where there was none before was, by the strict rules of the common law, said to be waste; Co. Litt. 53 a; and taking it down after it was built was waste also ; 1 B. & Ad. 161; Whiting v. Brastow, 4 Pick. (Mass.) 310; Beers v. St. John, 16 Conn. 322.
Voluntary waste may also be committed upon timber. The law of waste accommo dates itself to the varying wants and condi tions of different countries: that will not, for instance, be waste in an entire woodland country which would be so in cleared one. The clearing up of land for the purpose 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 pro portion to the whole tract ; 4 Kent 316 ; Liv ingston v. Reynolds, 26 Wend. (N. Y.) 122; where timber is grown for sale, cutting tim ber would be a "mode of cultivation." See L. R. 18 Eq. 309 ; [1891] 3 Ch. 206.
The extent to which wood and timber on such land may be cut without waste is a question of fact for a jury ; Jackson v. Brownson, 7 Johns. (N. Y.) 227, 5 Am. Dec. 258. A tenant may always cut trees for the repair of the houses, fences, hedges, stiles, gates, and the like; Co. Litt. 53 b; Dorsey v. Moore, 100 N. C. 41, 6 S. E. 270; Calvert v. Rice, 91 Ky. 533, 16 S. W. 351, 34 Am. St. Rep. 240; and for making and repairing all instruments of husbandry ; Wood, Inst. 344. See ESTOVERS. He may fell dead or dying timber ; Sayers v. Hoskinson, 110 Pa. 473, 1 Atl. 308; Keeler v. Eastman, 11 Vt. 293. And he may, when unrestrained by the terms of the lease, cut timber for firewood, if there be not enough dead timber for such pur poses; Com. Dig. Waste (D 5). But not orna mental trees or those planted for shelter; 6 Ves. Ch. 419; or to exclude objects from sight ; 16 Ves. Ch. 375; Dalton v. Dalton, 42 N. C. 197 ; Kidd v. Dennison, 6 Barb. (N. Y.) 9. He cannot promiscuously cut trees to make staves to be sold: Huddleston v. John
son, 71 Wis. 336, 37 N. W. 407; nor railroad ties; Davis v. Clark, 40 Mo. App. 515.
It is waste for a tenant for life to• neglect to pay the interest on a mortgage whereby the land was sold to the prejudice of the re mainderman ; Wade v. Malloy, 16' Hun (N. Y.) 226; and so of a failure pay taxes ; Stetson v. Day, 51 Me. 434 ; Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. Vir. 527.
Windfalls are the property of the landlord; for whatever is severed by inevitable necessi ty, as, by a tempest, or by a trespasser, and by wrong, belongs to him who has the inher itance ; 3 P. Wms. 268 ; 11 Co. 81.
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; Cook v. Transp. Co., 1 Denio (N. Y.) 104.
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 decay for want of plas tering, or the foundation to be injured by neg lecting to turn off a stream of water, and the like ; Co. Litt. 53 a. See Schulting v. Schult ing, 41 N. J. Eq. 130, 3 Atl. 526; Cannon v. Barry, 59 Miss. 289; LANDLORD AND TEN ANT. Permissive waste in houses, however as a general rule. is now only punishable when a tenant is bound to repair, either ex pressly or by implication ; 4 B. & P. 298 ; 10 B. & C. 312. See Sherrill v. Connor, 107 N.
C. 630, 12 S. E. 588.
The redress for this injury is of two kinds, preventive and corrective. A reversioner 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 ten ant for years, or from year to year, he can only sustain an action for damages for per mtssive waste if his lease obliges the tenant to repair ; 2 Saund. 252 d, note ; 10 B. & C. 312 ; 41 Ch. D. 352. Where a particular course of user has been carried on for a con siderable course of time, with the apparent knowledge and consent of the owner of the inheritance, all lawful presumptions will be made in favor of the lawfulness of the acts complained of ; Pollock, Torts 328 ; 4 App. Cas. 465. The statutes of the several states also provide special relief against waste in a great variety of cases, following, in general, the Statute of Gloucester, which not only for feits the premises, but gives exemplary dam ages for all the injury done. The rules as to waste are less stringent in the western states than in the east.