CHAPTER II. POSSESSORY RIGHTS AND LIABILITIES OF TENANTS. Tenant in fee simple-fee subject to executory interests-equitable Tenant in tail-special tail-after possibility of issue extinct-under Tenant for life or for years-liability for waste. Action of waste-damages-limitation of action-action of waste by or against executor-waste by stranger-vis major. Tenant for life or years without impeachment of waste-equitable waste-covenants relating to use of land demised-implied contract of tenant. Tenant at will-tenant of copyhold-waste by copyholder. Tenants of equitable estates-special trusts. Tenant in fee simple absolute, in possession, has the largest Tenant in fee right to the uses and profits of the land that is allowed simple. by law. He may cut timber and any other trees, open and work mines and take soil and minerals, build and pull down houses, as he pleases; by right of absolute ownership he may commit waste and destruction of the inheritance (a). -Tenant in fee simple, subject to an executory use or Fee subject to devise, has all the legal rights and incidents of a fee executory simple; but the Court will protect the future interest so far as to restrain the tenant in possession from such exercise of his strict legal rights as would unduly prejudice the future possession. Though he would as tenant in fee simple be entitled to cut and take all timber and other trees, he would be restrained from cutting such timber as is not ripe for cutting, and such timber and other trees as (a) Duke of Norfolk v. Arbuthnot, L. R. 4 C. P. D. 306; 48 L. J. C. P. 745. interests. Equitable waste. Tenant in tail. Tenant in tail subject to executory devise. Sale of timber by tenant in tail. are ornamental to the estate. He would also be restrained generally from acts of mere wilful destruction (b). Such an injunction was granted against a tenant in fee subject to an executory devise in the event of his leaving no issue at his death; also against a tenant in fee subject to an executory devise to take effect upon his death under twenty-one; in accordance with the presumed intention of the testator in such cases that the estate should pass over to the future devisee without material deterioration (c).—The wilful waste and deterioration of the property which is thus restrained in the interest of the successor, though not actionable at common law, is technically known as "equitable waste." Tenant in tail in possession has all uses and profits of the land, as fully as tenant in fee simple absolute. He may cut timber, open mines, pull down houses, as he pleases, without being impeachable for waste or destruction. For a tenant in tail by taking proper proceedings for barring the entail has the power of acquiring to himself a fee simple absolute, discharged of all remainders and reversions, and of all executory interests that may be limited to take effect in defeasance of the estate tail. Therefore in right of his capacity of acquiring such enlarged estate, he can exercise the same rights of use and enjoyment as if he had acquired it. He has, in this respect, fuller dominion over the land than tenant in fee simple; inasmuch as the latter cannot discharge his estate from executory limitations, and therefore in exercising his rights of ownership, he is bound to respect them (d). But though tenant in tail in possession is not impeachable for waste, and may take any profits from the land, as trees or minerals, and sell them and take the proceeds, yet he cannot effectually convey them before taken without barring the (b) Turner v. Wright, Johns. 740; 29 L. J. C. 598. (c) Ib.; Robinson v. Litton, 3 Atk. (d) Ante, p. 15; A.-G. v. Duke of Marlborough, 3 Madd. 498; Mildmay's Case, 6 Co. 41 a. entail. If he conveys them by an ordinary deed, not operating in bar of the entail, and they are not taken during his life, the property in them descends with the estate to the heir in tail, and the purchaser has no longer any claim. A tenant in tail in possession may authorise another to cut trees or to take minerals; but such authority conveys no interest until executed, and is determined by his death (e). -Tenants of estates entailed in perpetuity without power Perpetual of barring the entail, which is the case of estates tail with reversion in the Crown, and of certain estates tail that have been settled inalienably by Act of Parliament, have the same absolute rights and are not restrainable even from equitable waste (ƒ).—An infant tenant in tail, though incapacitated generally from alienation, has similar rights, and cannot be restrained from taking timber, minerals, or other profits (g). entail. Tenant in special tail is in the same position as regards Tenant in special tail extinct. possessory rights as a tenant in tail general.-Tenant in after possibispecial tail "after possibility of issue extinct" is in the lity of issue position of a tenant for life only, in that the estate tail must terminate at his death, nor can he enlarge it into a fee simple; but he retains the privilege incident to the estate tail of not being impeachable for waste at law. Courts of equity regarding him merely as a tenant for life without impeachment of waste restrain him from committing equitable waste. A tenant in this position may cut timber and take the timber when cut for his own use, provided the cutting is not equitable waste ().-By the Settled Settled Land Land Act, 1882, 45 & 46 Vict. c. 38, ss. 3, 58, a tenant in tail, and a tenant in tail after possibility of issue extinct, in possession, have the powers of a tenant for life under the Act, enabling them to sell the settled land or any part (e) Cholmeley v. Paxton, 3 Bing. 211; S. C., Cockerell v. Cholmeley, 10 B. & C. 564. (ƒ) A.-G. v. Duke of Marlborough, 3 Madd. 498. (9) Wigram, V.-C. Ferrand v. L. Wilson, 4 Hare, 374. (h) Lit. ss. 32, 33; Co. Lit. 276; Bowles' Case, 11 Co. 79; A.-G. v. Duke of Marlborough, 3 Madd. 538; Williams v. Williams, 12 East, 209; 15 Ves. 428. C Act. Tenant for life or for years. Waste. thereof, or any right or privilege over the same; subject to the provisions of the Act as to the proceeds. Tenant for life or for years, in possession, has all the ordinary uses and profits that accrue continuously, or periodically, or occasionally from time to time, during the term; but he has no right of taking or destroying anything that is permanent and part of the inheritance, as trees, soil, minerals, or houses and buildings, and he is, in general, impeachable for "waste" or destruction (i).— Waste is described as of two kinds, namely, "voluntary or actual, and permissive." The former consists in acts of wilful destruction, as cutting down trees, pulling down houses and the like. Permissive waste is caused by negligence only, as by suffering houses to be uncovered whereby the rafters or other timbers of the house are rotten; or by suffering walls of the sea or rivers to be in decay, whereby the land is overflowed and unprofitable (j). "No act can be waste which is not injurious to the inheritance"; and an act may be injurious and actionable "either, first, by diminishing the value of the estate, or, secondly, by increasing the burthen upon it, or, thirdly, by impairing the evidence of title" (k). Accordingly such acts as ploughing up ancient meadow and removing fences are prima facie acts of waste, and are actionable (7). -Waste can only be committed of the land demised; therefore where trees were excepted from a lease, it was held that cutting the trees was not technically waste, upon which a forfeiture could be claimed, though it might be a trespass upon the possession of the trees (m). (i) Herlakenden's Case, 4 Co. 62b; Liford's Case, 11 Co. 48 a; Bowles' Case, 11 Co. 81 b. (j) Co. Lit. 53 a. See post, p. 92. (k) Per cur. Doe v. Burlington, 5 B. & Ad. 517; Young v. Spencer, 10 B. & C. 145; Huntley v. Russell, 13 Q. B. 572. Jessel, M. R. Jones v. Chappell, L. R. 20 Eq. 541; 44 L. J. C. 658. (1) Co. Lit. 53b; Greene v. Cole, 2 Wms. Saund. 259, n. (11); Simmons v. Norton, 7 Bing. 640; St. Albans v. Skipwith, 8 Beav. 354. (m) Goodright v. Vivian, 8 East, 190; see Bullen v. Denning, 5 B. & C. 842. The action for waste at common law lay against tenant Action of in dower, tenant by the curtesy, and guardian, the tenancy waste. in these cases being created by the law; but no action lay against lessee for life, or for years, or at will, because they came in by the act of the lessor, and, it was said, he might have provided against waste in the lease. The waste, however, though not actionable, did not change the property in the trees or minerals wasted, which remained in the lessor (n).-The action was extended to tenants for life and for years by the Statute of Marlbridge, 52 Hen. 3, c. 23, enacting that "fermors, during their terms, shall not make waste sale nor exile of houses woods nor of anything belonging to the tenements that they have to ferm, without special licence had by writing of covenant making mention that they may do it." The term "fermors" comprehends all such as hold by lease for life or lives or for years, by deed or without deed. Tenant at will was not affected by the statute and remained as at common law (0).-A special action was given by the Statute of Gloucester, 6 Edw. I., c. 5, for the recovery of the place wasted and treble damages. This action, in common with other real actions, was abolished by the statute 3 & 4 Will. IV., c. 27, s. 36; leaving the common law remedy by an action for damages, which was extended to tenants for life and for years by the above-mentioned Statute of Marlbridge (p). Accordingly an action may now be brought to recover damages for waste against the tenant for life or for years, by the person having the immediate vested estate in reversion or remainder, for life. or for years, in fee or in tail; and such person may recover damages for the waste done, which is assessed according to his interest in the property (q).—An injunction may be (n) 2 Co. Inst. 299; 4 Co. 62b, Herlakenden's Case; Bowles' Case, 11 Co. 81 b. (0) 2 Inst. 144, 299. (p) 2 Wms. Saund. 252 a, Greene v. Cole; Parke, B., Harnett v. Maitland, 16 M. & W. 262; per (2) Co. Lit. 53a; 2 Wms. Saund. |