Persons for and against whom injunctions granted.

where a devise containing precatory words was, by a decree

the states, special provision is made by statute against wanton injuries to land, buildings, trees, &c., by persons without title; and, more particularly in the Western States, against the act of firing woods and prairies, belonging either to the party himself or to another. (Hilliard on Real Property, vol. 1, p. 272-6.

purely equitable nature, or where the parties have both legal titles and legal remedies, but irreparable mischief would be done, unless they were entitled to more immediate relief than that which they could obtain at law, or where the parties committing the waste, with nothing but temporary and limited interests in the subject-matter, are maliciously and wantonly abusing those legal rights to the injury of those in remainder.

The most ordinary instance of the interposition of a court of equity, is by injunction to restrain the commission of waste by a tenant for life or years upon the application of the reversioner or remainder-man, for an estate for life is always impeachable for waste, unless the contrary is pointed out by express limitation. Cole v. Peyson, Ch. Rep. 57. To redress this wrong, the only common law remedies are--either an action of waste or an action on the case in the nature of waste: the first of these remedies is given by the statutes of Marlbridge and Gloucester, 52 H. III. c. 23; and 6 E. I. c. 5, which, taken together, enabled the owner of the inheritance to recover the place wasted, together with treble damages, as an equivalent for the damage done to him. No person, however, could bring this action but he who had the immediate estate of inheritance expectant on the determination of the estate for life; 1 Inst. 53 b. and 218 b. n. 2; Paget's case, Rep. p. 5, 76 b., consequently, the remedy provided by these statutes was inapplicable to a vast variety of cases, and it therefore gave way to the second of these remedies, i. e., to the action on the case, which might be brought by the person in reversion, or remainder for life or years, as well as by a reversioner, &c., in fee; Williams's Saunders, 252, n. 7, but as it has been determined that an action on the case will not lie for permissive waste, Herne v. Benbow, 4 Taunt. 754, and as it is certain that it cannot prevent the commission of future waste, an injunction in equity with its consequential account, is, in ordinary circumstances, the most usual and most efficacious mode of obtaining complete redress. It is true that the common law had one remedy of a preventive nature, in the writ of estrepement, but that remedy could only be obtained during the pendency of a real action; and so when the proceeding by ejectment became the usual mode of trying a title to land, in which case the writ of estrepement did not apply, courts of equity proceeding on the same principles, supplied the defect and extended it to other cases where the waste was only threatened. Ld. Red. 136; Gibson v. Smith, 2 Atk. 183.

It is obvious, from the foregoing summary of the common law remedies, that even if the common law remedy were more efficacious than it is, there are many persons who would be without redress if the court of equity did not interfere, -such as children unborn, and persons having contingent or executory interests. Injunctions will accordingly be granted to protect the interests of a child in ventre de sa mere; Robinson v. Litton, 3 Atk. 211; Luttrell's case, cited Prec. in Ch. 50, of a contingent remainderman, Williams v. Duke of Bolton, 3 P. Wms. 268, n., or of an executory devisee; Hayward v. Stillingfleet, 1 Atk. 425; Robinson v. Litton, 3 Atk. 209; and see Stansfield v. Habergham, 10 Ves

of the Master of the Rolls,(a) declared (according to the well Persons for and against whom injunc

(b) Wright v. Atk. 17 Ves. 255. Afterwards affirmed upon appeal, 19 Ves. tion granted. 299. Coop. 111.

272, for if this protection were not given, it would be very easy to destroy the
intention as to timber, in almost every settlement, whether by deed or will.
There are also other cases where a person is dispunishable at common law for
committing waste, and yet a court of equity will enjoin him: thus, it is clear,
that where there is a tenant for life, with remainder to another for life, with
remainder over in tail or in fee, and the first tenant for life commits waste, the
remainderman in tail or in fee can have no action of waste, the reason of which,
is, that the plaintiff in the action must recover the place wasted: and that
would be an injustice to the remainderman for life, whose estate is not forfeited,
and if it should be recovered by the owner of the inheritance, (being under the
limitation of the property,) it would never go back again. But though the law
allows no action of waste, in such a case, yet the court of chancery will sustain
an injunction, Boswell's case, 1 Rolls. Ab. 377; Tracey v. Tracey, 1 Vern. 23;
Abraham v. Bubb, Freem. 53, and this ab antiquo, according to the case in
Moore, 554, where Lord Ellesmere said he had seen a precedent for it so long
ago as in the reign of Richard the Second. Garth v. Cotton, 1 Dick. 205, 208.
And not only will the court of chancery grant the injunction upon the appli-
cation of the remainder-man in fee, but it will also grant it upon the application
of the mesne remainderman for life; for though he has no right to the timber,
yet if the first tenant for life should die, he would have an interest in the mast
and shade. Dayrell v. Champnets, 1 Eq. Ca. Ab. 400; Mollineux v. Powell, 3 P.
Wm. 268, n.; Perrot v. Perrot, 3 Atk. 94; Davis v. Leo, 6 Ves. 787. It is upon
the like principle, also, that Lord Hardwicke granted an injunction at the suit
of a ground landlord, to stay waste in an under lessee; Farrant v. Lovell, 3 Atk.
723; Amb. 105, S. C. sub nom. Farrant v. Lee, and an injunction has also been
obtained against a tenant from year to year, after a notice to quit, to restrain
him from taking away the crops or sowing the land with a pernicious seed, in
a manner which was contrary to the usual course of husbandry. Onslow v.
16 Ves. 173; Pratt v. Brett, 2 Mad. 62.

A court of equity will also restrain waste where the titles of the parties are of a purely equitable nature: thus, in the case of mortgages, if the mortgagor in possession should attempt to cut down timber, and the land without the timber is an insufficient or scanty security, a court of equity will restrain him; for, as the whole estate is a security for the money advanced, the mortgagor, under such circumstances, ought not to be suffered to lessen or diminish it: Usborne v. Usborne, 1 Dick. 75; Hippesley v. Spencer, 5 Mad. 422; Humphreys v. Harrison, 1 J. & W. 581, and so it is the duty of trustees who are appointed to preserve contingent remainders, to protect the entire inheritance for the benefit of all the cestui que trusts in remainder, whether vested or contingent; and as, in many instances, the value of that inheritance consists as much of the mines and timber as it does of the land, they may, by force of their trust, have their remedy by injunction, to prevent the destruction of the one or the exhaustion of the other. Garth v. Cotton, 1 Dick. 183; Stansfield v. Habergham, 10 Ves. 273. Under this head, we may also class those cases where persons are contracting for leases and other interests in property which they are only in possession of by virtue of the contract; in such cases, if the plaintiff has no legal title, he has no redress at law, but if he has such a contract as will authorize him to call

Persons for and against whom injunction granted.

known doctrine in Chapman's case)(a) to constitute the *de

(a) Dyer, 333.

upon the court to clothe the possession with the legal title, and the answer admits such contract, the injunction will be granted. Norway v. Rowe, 19 Ves. 155.

An injunction will also be granted, in some cases, where the parties have both legal titles and legal remedies, but irreparable mischief would be done unless they were entitled to more immediate relief than that which they would obtain at law; it has accordingly been granted where the injunction amounted in fact to an injunction to stop a trespass; for, if the court would not interfere against a trespasser, he might go on by repeated acts of damage which would be absolutely irremediable. The original distinction was, that if a person still living committed a trespass, by cutting timber or taking lead ore or digging for coal, the court would not interfere, except so far as to give a discovery, and then an action might be brought for the value discovered; but if the person died, then, since the trespass died with him, the court has said it would decree an account, though the law provided no remedy. Throughout Lord Hardwicke's time and down to that of Lord Thurlow, the distinction between waste and trespass was thus acknowledged, (Thomas v. Oakley, 18 Ves. 186;) Lord Thurlow himself acted upon the same principle, saying, that the person to be enjoined was a mere stranger, and he ought to be turned out of possession immediately. Mortimer v. Cottrell, 2 Cox, 205. Then came Flumang's case, (Cited or referred to, 6 Ves. 147; 7 Ves. 308; 15 Ves. 138; 18 Ves. 186:) there a landlord of two adjoining closes let one of them to a tenant who took coal out of one close, and also out of the other which was not demised to him; and it was held at first, that the taking the coal out of the former as waste, would be restrained, but as to the close which was not demised to him, it was a mere trespass, and the court could not interfere; but Lord Thurlow afterwards changed his opinion, on the ground that irreparable mischief would follow his refusal, holding in effect that if the defendant was taking the substance of the inheritance, the liberty of bringing an action was not the only remedy to which in equity he was entitled. The same principle has been acted on, and applied without scruple, in various other decisions, for unless there was a jurisdiction to prevent destruction or irreparable mischief, there would be a great failure of justice in this country. Mitchell v. Dors, 6 Ves. 147, (Sumner's ed. note (a) and (1), and cases cited;) Crockford v. Alexander, 15 Ves. 138; Thomas v. Oakley, 18 Ves. 186.

The court will likewise interfere by injunction, where the parties committing the waste, with nothing but temporary and limited interests in the subjectmatter, are maliciously and wantonly abusing their legal rights to the injury of those in remainder; this is commonly called equitable waste, which may be defined to be the commission of such acts as at law would not be esteemed, under the circumstances of the case, to be waste, but which are so esteemed in the view of a court of equity, from their manifest injury to the inheritance, though not inconsistent with the legal rights of the party committing them. Thus, for example, it was held, in Lewis Bowle's case, (11 Rep. 80,) that if there be a tenant for life without impeachment of waste, he had as great a power to do waste, and to convert it at his own pleasure, as a tenant in fee or a tenant in tail had, so that if any trees were severed from the inheritance, either by the act of the party or by the act of law, and became chattels, the whole property in them was in the

Persons for

and against

fendant tenant for life only in her own right, and a trustee of the remainder in fee for the plaintiff: upon a motion to whom injunetion granted.

tenant for life, by force of the said clause. The necessary consequence of this doctrine was, that a tenant for life without impeachment of waste, could not in any case be restrained, in equity, from cutting timber upon the estate, for that would have been to determine that he should not enjoy the property which the law gave him. Aston v. Aston, 1 Ves. 265, 266. It was, however, soon found, that this extensive power might be wantonly and capriciously abused to the prejudice of the inheritance; and, accordingly, where a tenant for life, unimpeachable of waste, was making an unconscientious use of that power, the courts of equity assumed the jurisdiction of restraining and modelling it. Thus it has interfered by injunction where the tenant for life was pulling down a castle, (Vane v. Ld. Barnard, 2 Vern. 738; Prec. in Ch. 454, S. C sub. nom. Ld. Barnard's case,) or the family mansion, or farm houses. Aston v. Aston, 1 Ves. 265. It will also interfere where he is cutting down timber of too young growth, (O'Brien v. O'Brien, Amb. 107. Chamberlyne v. Dummer, 1 Bro. C. C. 166, (Perkin's ed. notes.) Strathmore v. Bowes, 2 Bro. C. C. 88, (Perkin's ed. notes,) or where he is cutting down trees which were planted, or growing, or designedly left, for ornament or shelter. Packington's case, 3 Atk. 215. Williams v. M'Namara, 8 Ves. 70. This principle has even been extended to plantations, vistas, avenues and rides, (Lord Tamworth v. Ld. Ferrers, 6 Ves. 419,) and to trees which are either planted to shut out an object, (Day v. Merry, 16 Ves. 375,) or merely for the benefit of a view. The Marq. of Downshire v. Lady Sandys, 6 Ves. 107. In some of these cases, the kind of waste had been called, by the judges, extravagant, humorsome waste; in others, as voluntary, malicious, intended waste; in others again as wanton and wilful waste; in all of them, in short, it was the improper and abusive exercise of a legal power to the detriment of those in remainder.

Tenants in tail, after the possibility of issue extinct, have the same powers and are subject to the same restrictions as tenants for life without impeachment of waste; and it makes no difference that they are unimpeachable of waste, not by the provision of the grantor, but as a legal incident to their estate; for, as it was said in Abraham v. Bubb, "though in some cases, fortior est dispositio legis quam hominis, yet that shall not be to incumber estates." Freem. 53; Attorney-General v. Duke of Marlborough, 3 Mad. 539. Williams v. Williams, 15 Ves. 419.

It is to be remarked, that the object of the court's interference in granting an injunction to stay this kind of waste is not by way of satisfying a damage, but in order to prevent a wrong, and, therefore, a person cannot come into equity, merely for an account, unless where the waste is of that nature that the plaintiff has no remedy at law: the account depends entirely upon the injunction; it is incidental to and consequential upon it; and, if a person is entitled to the one, he is entitled to the other also, on the principle of preventing a multiplicity of suits; for, otherwise, he would be obliged to bring his action at law as well as his bill in equity,—his action by way of satisfaction, his bill by way of prevention. Jesus Coll. v. Bloom, 3 Atk. 263; Amb. 54, S. C. But, after the determination of the tenant's estate, the bill will not lie for an account merely, where no injunction is prayed or necessary, and no injury is to be prevented; for, if there be nothing to be restrained in future, there is no reason why the court should interfere, since the party injured has his remedy at law for that which is already passed. Smith v. Cooke, 3 Atk. 381. Pulteney v.

Persons for and against whom injunetion granted.

Has no proper

ty in the tim

demised to

him, only an interest in the

fruit and shade.

restrain her from cutting down timber, Lord Eldon, upon the
ground that this doctrine is generally a surprise upon the
intention of the testator, endeavored to raise a distinction in
favor of the devisee: he found, however, on consideration,
that the necessary consequence attached to the estate which
she took, and an injunction was granted, though she had
pealed from the decree.(a)[1]

ap

A tenant for life or for years has no property in timber ber, although trees, though he has a special interest and property in the fruit and shade, as long as they are annexed to the land,() but he cannot cut timber even where there is a demise of a farm, including the trees: for though there is no express exception, yet the law makes an exception of the trees, and the lessee cannot cut them down, because he has but a limited. interest. It was once even holden, that under a demise of a farm and divers closes, with all timber-wood, underwood, and hedge-rows thereunto appertaining except all great oaks growing in a particular close, habendum the farm and closes

(a) 1 V. & B. 313.

(b) 4 Co. 62. 1 Roll. Rep. 181, Dy. 90.

Warren, 6 Ves. 89. Grierson v. Eyre, 9 Ves. 346. However, the very reason
given, viz., that the party injured has his remedy at law, is a proof that the
rule ought not to apply where the waste and the remedy are strictly equitable;
accordingly an account was granted in Garth v. Cotton, (1 Dick. 183,) although
an injunction was not sought.

The same distinction is observed if the party who committed the waste dies
between those cases where the waste was legal and those cases where the
waste was equitable. There is no instance of a decree against assets for an
account of legal waste; since, so far as the act of the offender was beneficial,
his assets would be answerable at law, and his executor would be charged,
(Hambly v. Trott, Cowp. 376); and, as at law if legal waste be committed and
the party dies, an action for money had and received will lie against his repre-
sentatives; so upon the same principle, or rather by analogy thereto, if equita-
ble waste be committed and the party dies, he must, through his representa-
tives, refund in respect of the wrong he had done, and not retain the produce
of his injury, which is recoverable in no other court. Marquis of Lansdowne v.
March. Dow. of Lansdowne, 1 Mad. 116; Bishop of Winchester v. Knight, 1 P.
Wms. 406. It would, says Lord Cowper, be a reproach to equity to say,
when a man has taken my ore or timber and disposed of it in his lifetime, and
dies, that in this case I must be without remedy.

[1] A devisee for life was restrained from cutting down the wood-land of the estate, and from planting the new grounds. Smith v. Poyas, 2 Desau. 65. The devisee for life was also restrained from using the timber for any other purpose than for fuel, fencing, &c. Ib.