for life without impeachment of waste shall not confer, or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate." and agree The general liability of a tenant for waste may also be Covenants modified, and may be wholly superseded by the express ments as to covenants and conditions of the lease respecting the mode use of land. of using the demised premises (s). If the lessee covenants merely against waste, that is, to the same effect as the common law liability for waste, the remedy by action of waste is retained, notwithstanding the covenant; but if the covenant varies the liability the remedy lies upon the covenant (f).—In the absence of express covenant there is Implied implied in law, for the convenience of remedy, a contract tenant. or obligation on the part of the lessee, to use the demised. premises in a tenant-like manner, relatively to the nature of the premises; but which is nothing more in substance than the obligation concerning waste arising from the mere relation of landlord and tenant (u). No such contract is implied where the tenant holds under an express contract providing for the same matter (v). contract of will. Tenant at will has the possession of the land, and all Tenant at the uses and profits that are incident to mere possession; but he is liable for acts of waste, in cutting down trees or in pulling down houses or the like, as substantive trespasses. "For when tenant at will takes upon him to do such things which none can do but the owner of the land, these amount to the determination of the will and of his possession, and the lessor shall have a general action of trespass without any entry." An action of waste would not (s) Jones v. Hill, 7 Taunt. 392. (t) Kinlyside v. Thornton, 2 W. Bl. 1111; Jones v. Hill, 7 Taunt. 392; Marker v. Kenrick, 13 C. B. 188; 22 L. J. C. P. 129. (u) Powley v. Walker, 5 T. R. 373; Dietrichsen v. Giubelei, 14 M. & W. 850. (v) Standen v. Chrismas, 10 Q. B. 141: Jones v. Hill, 7 Taunt. 392. Tenant of copyhold. Waste by copyholder. Equitable tenancies. lie against tenant at will, either at common law or under the statutes which gave the action of waste against tenant for life and tenant for years (w). A copyholder, or tenant at will of the lord according to the custom of the manor, has the uses and profits that are attendant on the possession of a tenant at will, the land for all other purposes remaining the property of the lord. The lord's rights are subject to the possessory rights of the tenant, and therefore the lord cannot enter to cut timber or to take minerals or to exercise any proprietary rights, without the consent of the tenant. An entry of the lord for such purposes, during the continuance of the copyholder's tenancy and without his leave, would be an act of trespass. But by special custom in some manors the lord or the tenant may be entitled to timber or minerals absolutely and immediately (a).—Voluntary or wilful waste by a copyholder determines the will and is a forfeiture of the tenancy (y). The lord has no remedy against a copyhold tenant by action of waste, and therefore must proceed for the forfeiture; but in cases where forfeiture is an inadequate remedy he may obtain an injunction, as where the chief value of the land is in the timber or minerals wasted (z);. and he may recover the proceeds of the waste (a). A tenant in possession under an equitable title has the same possessory rights and liabilities as a tenant of the corresponding legal estate, whether his estate be in fee or for life or for years; and the tenant for a limited estate for life or years is equally impeachable for waste, unless (w) Ante, p. 19; Lit. s. 71; Co. Lit. 57 a; Countess of Shrewsbury's Case, Cro. Eliz. 777; 5 Co. 13b; Gibson v. Wells, 1 B. & P. N. R. 290; Harnett v. Maitland, 16 M. & W. 257. (x) Heydon v. Smith, 13 Co. 67; Dench v. Bampton, 4 Ves. 700; Eardley v. Granville, 45 L. J. C. 669; L. R. 3 C. D. 826; Att.-Gen. v. Tomline, L. R. 5 C. D. 750; 46 L. J. C. 654. (y) Scriven on Cop. 442, 4th ed.; Doe v. Burlington, 5 B. & Ad. 507. (2) Eldon, L. C., Richards v. Noble, 3 Mer. 673, overruling Loughborough, L. C., Dench v. Bampton, 4 Ves. 706; Parrott v. Palmer, 3 M. & K. 639. (a) Ante, p. 20. expressly licensed to be unimpeachable (a). Under the old Judicature system of distributed jurisdiction between Courts of law Acts. and equity, the trustee having the legal title was considered as the owner at common law and might have an action of ejectment to recover the possession even from the cestui que trust, who was considered as a stranger to the land and had no legal remedy in his own name; but the Court of Chancery protected the possession of the latter by granting an injunction against ejectment, and by making the trustee accountable for all profits received by him (). Under the new system of the Judicature Acts, the legal and equitable titles are equally recognized in all the divisions of the High Court of Justice as the circumstances may require; and the beneficial title prevails according to the principles of equity (c). Special or active trusts to receive and apply the profits Active trusts. of land, to raise money-charges, and for sale and conversion, may require the trustee or legal owner to retain the possession of the land in order to carry out the trusts and purposes declared respecting it, and to secure its due protection and management; and in such cases the cestui que trust or equitable owner, in general, acquires no right to the possession or use of the land in specie. But the Court exercises a jurisdiction to admit the equitable owner into the possession under circumstances which render it safe and convenient to execute the trust in that manner, upon his giving security for the permanent maintenance of the property; as in cases where the personal occupation of the trust property, instead of the mere receipt of the rents and profits, is specially beneficial to the cestui que trust and consistent with the performance of the trust (d). (a) Arden, M. R., Philips v. Brydges, 3 Ves. 127; Fry, L. J., Re Ridge, L. R. 31 C. D. 507; 55 L. J. C. 265. (b) Goodtitle v. Jones, 7 T. R. 50; Kaye v. Powell, 1 Ves. jun. 408; Jenkins v. Milford, 1 J. & W. 635. (c) The Judicature Act, 1873, ss. 24, 25. (d) Leach, V.-C., Tidd v. Lister, 5 Madd. 432; Baylies v. Baylies, 1 Coll. 537; Denton v. Denton, 7 Beav. 388; see Pugh v. Vaughan, 12 Beav. 517. So where settled land is charged merely with the payment. of sums of money and is adequate to satisfy the amount, the Court will in general let the equitable tenant into possession upon his giving security for the charges, and an undertaking against waste (e). Where the trustees of settled estates were directed to keep the buildings in repair and to pay the surplus rents to a tenant for life, the latter was allowed the possession and management of the estate upon giving an undertaking to repair the buildings (f). (e) Blake v. Bunbury, 1 Ves. jun. 194; Jenkins v. Milford, 1 J. & W. 629. (f) Re Bentley, Wade v. Wilson, 54 L. J. C. 782; Powys v. Blagrave, 4 D. M. & G. 456. CHAPTER III. TREES, WOODS AND TIMBER. Property in trees-grant of trees as separate property-licence to take trees-contract of sale of trees. Lease with exception of trees. Construction of grants and exceptions of trees. Distinction of timber and other trees. Right of tenant to cut timber-timber estate-trees not timber-underwood, &c.-ornamental and shelter trees. Right to cut trees for repairs or fuel, &c.—extent of right-tenant at will and copyholder. Property in timber cut by tenant-timber cut in collusion with reversioner-property in trees not timber. Trees severed by wind or accident. Timber cut by order or sanction of Court-application of proceedsexercise of jurisdiction-statutory powers to sell timber-Settled Land Act. trees. Land in general, as subject of property, presumptively Property in includes all things growing upon the surface, as trees, crops, and herbage; and it is so taken in deeds and wills and other legal documents, in the absence of intention expressed to the contrary. Hence, trees presumptively belong to the owner of the land; and acts of ownership upon the trees are presumptive evidence of ownership of the land. A tree growing upon the boundary of two closes, partly in each, presumptively belongs to the two owners as tenants in common; but the presumption would be displaced by ascertaining in which close it was originally planted. If a tree growing in one close sends roots and branches into the adjoining close the owner of the latter close may cut them, as being a nuisance or encroachment his property which he is entitled to abate (a). upon (a) Waterman v. Soper, 1 L. Raym. 737; Holder v. Coates, Moo. & Mal. 112; per cur. Crowhurst v. Amersham Burial Board, L. R. 4 |