Damages. claimed against continued or threatened waste (r); also a claim may be made for an account of the proceeds of waste, as the proceeds of timber wrongfully cut or of minerals wrongfully taken (s).—The measure of damages is the diminished present value of the reversion, and not the cost of restoring the property to its unwasted condition (t). In cases of merely nominal damage it was the practice of the Courts of common law to enter the judgment for the defendant, in order to avoid the consequence under the Statute of Gloucester, of forfeiture and treble damages (u). Accordingly it is said: "The waste must be something considerable; for if it amount only to twelvepence or some such petty sum, the plaintiff shall not recover in an action of waste; nam de minimis non curat lex" (v). "Trees to the value of three shillings and fourpence hath been adjudged waste; and many things together may make waste to a value" (w). Upon this principle the Court will not grant an injunction unless the waste charged is "of a substantially injurious character; and if the waste be really ameliorating waste, which results in benefit and not in injury, or if it be so small as to be indifferent, the Court will not interfere to prevent it" (r). The limit of actionable waste is sometimes fixed in value by agreement in the lease (y).—Waste is actionable immeLimitation of diately it is committed, without waiting till the end of the tenancy; although possibly the waste might be repaired and the land restored by the tenant during his tenancy (=). Consequently the Statute of Limitations runs from the time of committing the waste, whether the claim be made action. (r) Perrot v. Perrot, (s) Bp. Winchester v. Knight, 1 (t) Whitham v. Kershaw, L. R. (u) Harrow School v. Alderton, 2 B. & P. 86; per cur., Pindar v. Wadsworth, 2 East, 164. (x) Doherty v. Allman, L. R. 3 Ap. Ca. 721; Bubb v. Yelverton, L. R. 10 Eq. 465; 40 L. J. C. 38; Mollineux v. Powell, 3 P. Wms. 268, n. (y) Doe v. Bond, 5 B. & C. 855. (z) Queen's Coll. v. Hallett, 14 East, 439. for damages, or for an account of the proceeds of the waste (a). But waste in non-repairing under a special obligation to repair may be a continuing cause of action until the end of the tenancy (b). executor. The action of waste by the rule of common law died with the person, either of the reversioner of the land wasted or of the tenant who committed the waste; so that "the heir of the reversioner cannot recover damages for the waste done in the life of the ancestor" (c). But by statute Action by 3 & 4 Will. IV. c. 42, s. 2, "An action may be maintained by the executor or administrator of any person deceased, for any injury to the real estate of such person committed in his lifetime for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year after the death of such person; and the damages when recovered shall be part of the personal estate of such person."-By the same statute, Action sect. 2, an action for waste, committed by the deceased against exetenant in his lifetime, may be maintained against his ceased tenant. executors and administrators, "so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate of such person." If the action of waste to recover damages for the injury to the reversion be barred by the death of the tenant, no claim can be made against his estate in respect of indirect profit derived from the waste, as the saving of expense by not repairing a house, or the gain of ploughing up meadow land; but an action may be brought to recover property, or the proceeds (a) Seagram v. Knight, L. R. 2 Ch. 628; 36 L. J. C. 310; Higginbotham v. Hawkins, L. R. 7 C. 676: 41 L. J. C. 828. (b) Woodhouse v. Walker, L. R. 5 Q. B. D. 404; 49 L. J. Q. B. 609. (e) 2 Inst. 305, cutor of de Waste by stranger. Vis major. Tenant of waste." or value of property, actually acquired to the estate of the deceased tenant, as timber cut and minerals got and sold by him (d). Waste in non-repairing under a liability to repair gives a continuing cause of action de die in diem up to the day of the death of the tenant; and an action may be brought for it within the six months after the taking out of administration (e). The tenant is responsible for acts of waste committed by a stranger, though without his knowledge or consent; for it is his duty to protect the property, and he can, at least, recover full damages for the injury to his possessory right. "It is presumed in law that he may withstand it, et qui non obstat quod obstare potest facere videtur" (f).-But the tenant is not responsible for waste and destruction caused by superior force (vis major) which he is not able to prevent and against which he has no remedy, and which he has not covenanted to answer for; as waste done by tempest, lightning, or the like; or by the enemies of the king (9). The Statute of Marlbridge above cited prohibited impeachment tenants for life and for years from making waste, "without special licence had by writing of covenant making mention that they may do it." The "special licence" of the statute may be given by the usual phrase "without impeachment of waste," or an equivalent phrase, appended to the limitation of the estate (). "The addition, without impeachment of waste, is an addition of interest; and it may be general or under such restrictions as the settlor thinks fit." Thus a tenancy for life may be subject to impeachment of waste, except in cutting down timber for repairs, or timber going to decay or injurious to other (d) Bp. Winchester v. Knight, 1 P. Wms. 406; Phillips v. Homfray, L. R. 24 C. D. 439; 52 L. J. C. 836. (e) Woodhouse v. Walker, L. R. 5 Q. B. D. 404; 49 L. J. Q. B. 609. (f) 2 Inst. 146, 303; Attersoll v. Stevens, 1 Taunt. 183; 2 Wms. Saund. 259 d (t). (g) 2 Inst. 302; Co. Lit. 53 b, 283 a; see post, p. 96. (h) 2 Inst. 146; per cur. Woodhouse v. Walker, L. R. 5 Q. B. D. 407; 49 L. J. Q. B. 609. trees; and a lease may be made of a house and land "without impeachment of waste in the house" (i). In leases granted under powers the licence to commit waste is restricted by the limits of the power; and the lease must conform to the power in this respect. Under a power to grant leases such that the lessee shall not be made dispunishable for waste, a lease in which the lessor covenanted to repair was construed as exempting the lessee from waste to the extent of the repairs by the lessor, which being in excess of the power rendered the lease void (k). A lease made "without impeachment of waste, excepting voluntary waste," was held to leave the tenant liable for wilful waste, and to give him no further right or interest in the timber than an ordinary tenant for life (7). The phrase "without impeachment of waste by any action," or "without being impleaded for waste," is construed as excepting only the liability to an action for the waste, but without affecting the property in the waste committed, as in trees cut down, which remain the property of the lessor. Such words bar the lessor of his action for damages, but not of his property (m). out impeachment of waste. Tenant for life or for years, without impeachment of Rights of waste has all the rights of use and profit of tenant in fee tenant withsimple. He may cut down timber or dig minerals during his term and sell them, and appropriate the proceeds to his own use. But he has a power only, which will produce an interest in him, if he executes it or gives authority to another to do so, during the continuance of his estate; but such power and authority ceases with his estate (n). Where (i) Per cur. Pigo! v. Bullock, 1 Ves. jun. 483; Aston v. Aston, 1 Ves. sen. 265; Co. Lit. 54b; Toaker v. Annesley, 5 Sim. 235. (k) Yellowly v. Gower, 11 Ex. 274; 24 L. J. Ex. 289; Doe v. Bettison, 12 East, 305; see Davies v. Davies, L. R. 38 C. D. 499; post, p. 92. (1) Garth v. Cotton, 1 Ves. sen. 524; 1 W. & T. L. C. 641, 3rd ed.; but see l'incent v. Spicer, 22 (m) 11 Co. 82 b, Bowles' Case. (n) Per cur. Bowles' Case, 11 Co. 82b; Heath, J. Attersoll v. Stevens, 1 Taunt. 198; Gent v. Harrison, Johns. 577; 29 L. J. C. 70; Cholmeley v. Paxton, 3 Bing. 207; S. C. Cockerell v. Cholmeley, 10 B. & C. 564, cited ante, p. 17. Equitable waste. trustees, in exercise of a general power of sale sold the land, excepting the timber, and the tenant for life impeachable of waste sold the timber valued separately to the same purchaser and received the purchase-money, it was held that the sale was void; for the trustees had no power to sell the land without the timber, and though the tenant for life might cut all the timber during his life, yet he had no power to sell the timber standing (o). Where tenant for life without impeachment of waste, under a power to sell with consent of trustees and with trust for reinvestment, sold the estate with the timber upon it, it was held that the tenant for life was not entitled to the proceeds of the timber, because it was sold under the power and not in his own right (p). So where tenant for life with power to cut certain timber sold the settled land under the Settled Land Act, it was held that he was not entitled to the value of the timber; but that it must be treated as capital money Tenant for life "without under sect. 21 of the statute (q). impeachment for waste," like a tenant in fee simple subject to executory limitations, is restrained from the committing of "equitable waste;" for it is considered in equity that where land is settled for estates for life and in remainder, the intention must be that the land should be substantially preserved and delivered over to the successive tenants in its integrity. Therefore while a tenant in possession of an estate "without impeachment of waste" is allowed his legal rights to the extent of taking all reasonable use and profit from the land, he is restrained from unreasonable destruction of the settled property to the disappointment Waste under of the future objects of the settlement (). By the Judicature Act, 1873, 36 & 37 Vict. c. 66, s. 25 (3), "an estate Judicature Act. (o) Cholmeley v. Paxton, 3 Bing. 207; Cockerell v. Cholmeley, 10 B. & C. 564; 1 Russ. & M. 424; 1 Cl. & F. 61. (p) Doran v. Wiltshire, 3 Swanst. 699. (1) Re Llewellin, L. R. 37 C. D. 317; 57 L. J. C. 316. (r) Vane v. Barnard, 2 Vern. 738; L. Hardwicke, L. C. Aston v. Aston, 1 Ves. sen. 264; Garth v. Cotton, 1 W. & T. L. C. 674, 3rd ed. |
