Iv.—: Waste.

Waste. Waste is any unauthorized act of a tenant for a freehold estate not of inheritance, or for any lesser interest, which tends to the destruction of the tenement, or otherwise to the injury of the inheritance. Such injury need not consist in loss of market value; an alteration not otherwise mischievous may be waste in that it throws doubt on the identification of the property, and thereby impairs the evidence of title. It is said that every conversion of land from one species to another—as ploughing up woodland, or turning arable into pasture land—is waste, and it has even been said that building a new house is waste. But modern authority does not bear this out; “in order to prove waste you must prove an injury to the inheritance” either “in the sense of value” or “in the sense of destroying identity”. And in the United States, especially the Western States, many acts are held to be only in a natural and reasonable way of using and improving the land—clearing wild woods for example—which in England, or even in the Eastern States, would be manifest waste. As to permissive waste, i.e., suffering the tenement to lose its value or go to ruin for want of necessary repair, a tenant for life or years is liable therefor if an express duty to repair is imposed upon him by the instrument creating his estate; otherwise he is not. It seems that it can in no case be waste to use a tenement in an apparently reasonable and proper manner, “having regard to its character and to the purposes for which it was intended to be used”, whatever the actual consequences of such user may be. Where a particular course of user has been carried on for a considerable course of time, with the apparent knowledge and assent of the owner of the inheritance, the Court will make all reasonable presumptions in favour of referring acts so done to a lawful origin. Destructive waste by a tenant at will may amount to trespass, in the strict sense, against the lessor. The reason will be more conveniently explained hereafter.

Modern law of waste: tenants for life. In modern practice, questions of waste arise either between a tenant for life and those in remainder, or between landlord and tenant. In the former case, the unauthorized cutting of timber is the most usual ground of complaint; in the latter, the forms of misuse or neglect are as various as the uses, agricultural, commercial, or manufacturing, for which the tenement may be let and occupied. With regard to timber, it is to be observed that there are “timber estates” on which wood is grown for the purpose of periodical cutting and sale, so that “cutting the timber is the mode of cultivation”. On such land cutting the timber is equivalent to taking a crop off arable land, and if done in the usual course is not waste. A tenant for life whose estate is expressed to be without impeachment of waste may freely take timber and minerals for use, but, unless with further specific authority, he must not remove timber planted for ornament (save so far as the cutting of part is required for the preservation of the rest) open a mine in a garden or pleasure-ground, or do like acts destructive to the individual character and amenity of the dwelling-place. The commission of such waste may be restrained by injunction, without regard to pecuniary damage to the inheritance: but, when it is once committed, the normal measure of damages can only be the actual loss of value. Further details on the subject would not be appropriate here. They belong rather to the law of Real Property.

Landlord and tenant. As between landlord and tenant the real matter in dispute, in a case of alleged waste, is commonly the extent of the tenant’s obligation, under his express or implied covenants, to keep the property demised in safe condition or repair. Yet the wrong of waste is none the less committed (and under the old procedure was no less remediable by the appropriate action on the case) because it is also a breach of the tenant’s contract. Since the Judicature Acts it is impossible to say whether an action alleging misuse of the tenement by a lessee is brought on the contract or as for a tort: doubtless it would be treated as an action of contract if it became necessary for any purpose to assign it to one or the other class.