deemed waste.

he may take estovers without committing waste is void, and What acts are if there be a covenant that he may take by assignment, it has been determined that he may take without.(a) There is no difference if the lessor covenants to repair, for if he neglects, the lessee may nevertheless cut timber for that purpose.(b)

If the tenant cuts more than is actually necessary for repairs, or if after cutting down the trees he suffer them to lie on the ground and decay, it is *waste.(c)[1] It is also a

(a) Co. Lit. 53, a. Hob. 296, Cro. Eliz. 604, 7 Bac. Ab. 252. (b) Brownl. 240; Mo. 33, pl. 80; 7 Bac. Ab. 261.

(c) Co. Lit. 53, b.

tation from Bac. Abridg. Waste F., where it is said, that if a lessee cuts trees and sells them for money, though with the money he repairs the house, it is waste. The authority relied on in Bac. Abridg. is 1 Co. Litt. 53 b. The doctrine there stated may be good law, if it be properly understood and limited. If the cutting down of the timber was without any intention of repairs, but for sale generally, the act itself would doubtless be waste; and if so, it would not be purged nor its character changed, by a subsequent application of the proceeds to repairs. But if the cutting down and sale were originally for the purpose of repairs, and the sale was an economical mode of making the repairs, and the most for the benefit of all concerned, and the proceeds were bona fide applied for that purpose, in pursuance of the original intention, it does not appear to me to be possible, that such a cutting down and sale can be waste. It would be repugnant to the principles of common sense, that the tenant should be obliged to make the repairs in the way most expensive and injurious to the estate.

"As to the other part of the case, the sale of one or two trees, the application of which to repairs is not established, it is, if at all, waste in its most minute form. But the jury will judge of the facts, and consider in the first place, whether the proceeds might not have been applied to the repairs. In the next place, if they were not, but if an equal quantity of timber from the other wood-lot of the defendant was so applied, and these trees were only taken by way of compensation and remuneration therefor, then there was no waste." [1] Although the rights of a tenant are carefully protected by courts of justice, yet they must not be in collision with the rights of others. Tenants must not do an injury to the estate in their possession, or a court of equity will interfere and restrain them by injunction. If a tenant begins, or threatens, or even shows an intention to commit waste, an injunction will be granted. Gibson v. Smith, 2 Atk. 182. Hanson v. Gardiner, 7 Ves. 308. Kimpson v. Eve, 2 Ves. & Beam. 349. And the court have gone so far as to say that they would grant the writ in such case on the application not only of the landlord, but of any intermediate person in interest. Farrant v. Lovall, 3 Atk. 723, even against an under tenant. Ib. Amb. 106. And they will grant an injunction to restrain an act whether it amount to waste or not, if it be a violation of the tenant's covenant. De Wilton v. Saxon, 6 Vesey, 106. Sir Wm. Pulteney v. Shelton, 5 Ves. 147. Ward v. Duke of Buckingham, 10 Ves. 161.

Marsh, 5 Ves. 259.

Lathrop v.

The court will grant relief in favor of the person in remainder or reversion against the tenant in possession, who is committing waste. Robinson v. Litton,

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deemed waste.

What acts are rule, which appears to have been rigidly adhered to, that the trees shall be applied to the specific purpose for which they are allowed to be cut. Thus if the tenant cut down trees, which in the working turn out to be unfit for the use designed, he cannot convert them to any other use; (a) nor sell them and buy fit wood with the money, (b) and even if he sell them and buy them again, and then employ them in repairs, it is waste; (c) nor can he by cutting down timber, repay himself the money he has expended in repairs.(d) [2] Thus

3 Atk. 209. Haywood v. Stillingfleet, 1 Atk. 422. Duke of Newcastle v. Vane, 2 P. Will. Tracy v. Tracy, 1 Vern. 23. Goring v. Goring, 3 Swanst. 661. And it is enough if the waste is only threatened. Puckington v. Packington, Dick. 101. Coffin v. Coffin, 1 Jac. Rep. 70. And the court will interfere in favor of a person in reversion or remainder, whose interest is executory or contingent. Robinson v. Litton, 3 Atk. Rep. 209, Dick. 210. Brasher v. Macey, 3 J. J. Marsh. 93. Or where the estate of the tenant is without impeachment of waste, if the acts done be of so prejudicial a nature as to lessen the value of the estate by the destruction of things which are considered of the substance, protection or ornament of the estate. As where the tenant without impeachment of waste, cuts down timber which affords protection or ornament to the estate. Williams v. M'Namara, 8 Vesey, 70. Newdigate v. Newdigate, 1 Sim. 131.

[2] Where a lease contained a covenant, on the part of the lessee, that he would not cut or destroy any part of the timber and wood growing on the demised premises, except for making or repairing buildings to be erected on the land, and for necessary fencing, and fuel for one dwelling house, with a clause of re-entry by the lessor, for a breach of any of the covenants by the lessee; and it was proved in an action of ejectment brought by the lessor against the lessee, that the latter had cut timber and trees for purposes not authorized by the lease; Held, that the lessee could not escape the consequences of the forfeiture incurred by such act, on the ground that he had procured his firewood and fencing timber from other land, and that he had not withdrawn from the demised premises more wood than the lease authorized him to take, although he had used it for other purposes.

In such a case the firewood of the tenant should be a reasonable estover. Where a lessee covenants that he will not use any of the wood or timber growing on the demised premises, except for certain objects specified in the lease, if he uses wood or timber for other purposes, and such wood or timber is not suitable for the objects specified, he commits a wrong against the lessor, and diminishes the value of his reversionary interest in the premises.

A lessee, authorized by the lease to cut wood for fuel or fencing, must comply substantially with the conditions of the lease. He cannot omit, for years, to take firewood and fencing timber from the premises, suffering the wood proper for those uses to be destroyed and wasted, and then, by way of com

if the lessor having covenanted to repair, neglects to do so, What acts are the lessee, though he may cut timber, cannot pay the wages

pensation and indemnity, enter upon the premises and take timber and wood to which the lease gives him no right. Clarke v. Cummings, 5 Barb. S. C. Rep. 340.

The court, in this case, per Gridley, J., remarked: "The very fact of cutting and clearing off the wood from the farm, so as to leave only thirteen instead of twenty-one acres of wood, was an act which created a forfeiture, by the very terms of the covenant, unless the quantity of woodland was thus reduced, by the cutting it off for the purpose of building, repairing, fencing, or fuel for one dwelling-house. The testimony does not inform us how much of the seven acres was cut off for those purposes; but there is no dispute but that the two acres cleared off by Denton, four or five years ago, were so cleared off without reference to any such purpose as authorized an encroachment upon the twenty-one acres. It is true that the forfeiture may have been waived by the subsequent receipt of rent by the lessor, with a knowledge of the forfeiture.

"It appears by the testimony, that since the quantity of woodland has been reduced below the number of acres reserved by the lease, valuable timber has been cut and sold for a mill-shaft; some twenty or thirty maple logs have been sawed into timber fit for wagon axletrees, and disposed of to purchasers; alder trees, of a size varying from two to six inches in diameter, have been cut and burnt into coals and sold off the farm, besides some other wood which has been used for firewood elsewhere than on the farm. This was all attempted to be justified, upon the ground that the tenants procured firewood and fencing timber from their other lands, and that they had not withdrawn from this particular lot more wood than they were authorized to do by the lease, though they had used it for other purposes. We are aware that these covenants are to be liberally construed to prevent a forfeiture; but we do not believe that the court can make for the parties a new contract, or essentially change the old one. It is still a binding contract upon the parties, and if either party has violated its plain provisions, he must submit to the consequences prescribed by the instrument itself We are therefore bound to hold that the fact that the tenant has chosen to procure his firewood and fencing timber from other lands, does not justify him in cutting and selling valuable timber, which good husbandry would dictate should not be used for either of those purposes. This would be to allow the tenant to change materially the terms of the covenant. His firewood should be reasonable estovers, which would require him to use first the dry and dead trees, if such were to be found on the premises; and the cutting of green trees for such use, without necessity, would be waste. 7 T. R. 234. By what authority, then, can he say, 'I will leave this firewood to decay on the premises, and indemnify myself by taking valuable timber in its stead?' So, too, the most appropriate timber for fencing should be used; and the lease does not authorize the tenant to procure his rails from other premi ses, and make that an excuse for selling off the valuable maple timber. Again, it would seem that there was a large growth of alders on this farm, and that this kind of wood is valuable for coal. This was a kind of wood or timber which the tenant had no right to remove from the land. And the fact that it is comparatively short-lived, does not alter the right of the tenant, under his covenant. He had no right to use any of the wood or timber growing on the premises, except for the specified objects; and when he uses wood or timber for other than the specified objects, and such wood or timber as is not suitable

deemed waste.

What acts are of the workmen without it.(a) *In a case before Lord Thurdeemed waste. low, a tenant for life, with power under an enclosure act to mortgage for the expenses of an inclosure, felled timber and applied the produce to that purpose; a decree was, however, made against his assets for an account of the timber cut.(b)[1] Ecclesiastical bodies are an exception to this rule; and it seems that they may sell the timber on one estate, and apply the produce to the repairs of any other.(c)

Waste in gardens, parks, ponds, &c.

If the tenant cut down or destroy fruit trees, if growing in a garden or orchard, it is waste; but if tore up by the wind he may afterwards cut them.(d) Destruction of saffron heads in a garden has been said not to be waste, (e) but the ploughing up strawberry beds clearly is.(f) If tenant of a dovehouse, park, warren, fish-pond, or similar tenement, take so much of the stock, or neglect the means of preserving it, so that there is not as much left, as he found at the time of the demise, it is waste.(g) It is said, however, that unless it be a free warren by prescription, the tenant may destroy coney

(a) 7 Bac. Ab. 261.

(b) Lee v. Alston, 1 Bro. C. C. 194; 3 ib. 37; 1 Ves. jun. 78.

(c) Knight v. Moseley, Amb. 176. Wither v. Dean, &c. of Winchester, 3 Meriv. 421. Hering v. Dean, &c. of St. Paul's, 2 Wills. Ch. Rep. 1.

(d) Co. Lit. 53, a.

(e) Bro. Ab. Waste, 143.

(f) Wetherell v. Howells, 1 Campb. 227.

(g) Hob. 236; Co. Lit. 53, b. 240.

Vavesour's case, 2 Leon. 222. Anon. 4 Leon.

for these specified objects, he commits a wrong against the lessor and diminishes the value of his reversionary interest in the premises. We see no justification for these violations of the covenants in the lease. It will be observed, that we say nothing of a case, in which the tenant should take precisely what, and precisely as much, and no more than the lease authorized, though he should use it otherwise than was contemplated by that instrument. For instance, if he had a house, not on the premises, but near them, we do not say that he could not use the firewood, which the lease gives him, in his house, though not situated on the premises. What we mean to say is this, that he must comply substantially with the conditions of the lease. He cannot omit for years to take firewood and fencing timber from the lot, suffering the wood proper for these uses to be decayed and wasted; and then, by way of compen sation or indemnity, enter upon the premises and take timber and wood to which the covenant never gave him a right."

[1] The reason and policy of withholding such a discretion from the tenant are obvious. His tenancy accrues by special agreement, and is limited by it to certain specified privileges. Were he permitted to go beyond the agreement, in a single instance, there might be no end to his deviation to the manifest injury, if not destruction of the inheritance.

deemed waste.

burrows ;(a) but in a modern case, this distinction was not What acts are attended to.(b)

Any material alteration in the nature of the thing *demised Waste in the alteration of is waste, though the value be not diminished, nay, even the property though it be increased, for the landlord is thereby in danger demised. of losing evidence of the identity of his property.[1] Ac-cordingly, the conversion of arable into wood, or of meadow into arable, provided it be ancient pasture, is waste; and injnnctions have in all times been granted to prevent it.(c)[2]

(a) Sill v. Mole, Toth. 210; 2 Roll. Ab. 815. Moyle v. Moyle, Owen, 66. P. R. C. 213; 22 Vin. Ab. 521.

(b) Angerstein v. Hunt, Ves. 488.

(c) Hastings v. Couper, Toth. 114. Lord Howard v. Ridley, ib. 290. Atkins v. Temple, 1 Ch. Rep. 13. Cole v. Peyson, 1 Ch. Rep. 57. Fermier v. Maund, ib. 116. Tregonwell v. Lawrence, 2 Ch. Rep. 49. Gunning v. Gunning, 2 Show, 8. Clarke v. Thorp, 2 Ves. 233. Lord Grey De Wilton v. Saxon, 6 Ves. 107.

[1] Anciently, the conversion of one kind of land into another, as, for instance, of pasture into arable, was waste, because it not only changed the course of husbandry, but tended to obscure the title. But, it has been said, that the pasture must have been such immemorially, and not merely long before; and in the improved state of agriculture in modern times, the old rule may be considered as greatly relaxed, if not wholly obsolete. But where, in the creation of the estate, there was an express prohibition against ploughing land unfit to be ploughed, chancery will interpose by injunction to prevent it. Co. Lit. 53 b; Dyer, 37 a; Gunning v. Gunning, 2 Show. 8; 1 Swift, 517-8; Keepers, &c. v. Alderton, 2 Bros. & P. 86; Worsley v. Stewart, 4 Bro. Parl. Ca. 377.

[2] But these rules are, not applicable in this country, and consequently such changes here do not constitute waste, they are prejudicial to the inheritance. 3 Dane's Abr. 219. When our ancestors emigrated to this country, they brought with them, and were afterwards governed by the common law of England; excepting, however, such parts as were inapplicable to their new condition. 2 Mass. Rep. 534; 8 Pick. 316. That the principle of common law under consideration was then inapplicable to the condition of the country, is obvious; nor has it been applicable at any time since; for it has been the constant usage of our farmers to break up their grass lands for the purpose of raising crops by tillage, and laying them down again to grass, and otherwise to change the use and cultivation of their lands, as occasions have required. A conformity, therefore, to this usage, cannot be deemed waste. Even in England, "if a meadow be sometimes arable, and sometimes meadow, and sometimes pasture, the ploughing of it is not waste. Bac. Abr. tit. Waste; Com. Dig. Waste. To erect a new house on the land where there was not any before, is not waste. Bac. Ab. tit. Waste; Winship v. Pilts, 3 Paige's Rep. 259. So it seems the opening of a way by the defendant for his convenience, and draining the land, and raising the land by carrying thereon quantities of earth, are held not waste in Massachusetts, unless they are prejudicial to the plaintiff. Pynchon v. Stearns, 11 Met. Rep. 304. The ancient doctrine of waste, if universally adopted in this country, would greatly impede the progress of improvement, without any compensating benefit. To be beneficial,

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