ways subordinate to the public right of regulation and improvement for the benefit of navigation, and therefore a structure in front of one's premises bordering on tide-water, erected by State authority for the benefit of navigation, violates no right of the owner of the shore so long as his access to the water for the purposes of a highway is not obstructed. Indeed, in all waters navigable in fact, the right of navigation is the paramount right,* but those engaged in navigation must respect rights of fishery, and they will be liable for any negligent injuries which their vessels may cause to seines, oyster-beds, etc.3 In [*332] North Carolina, if fresh-water streams are navigable in fact, the right to take fish therein is held to be in the public and not in the owners of the banks. Whether the taking of fish in private waters, where the public have been accustomed to take them, should be regarded as a trespass is not clear. As the mere entry upon the water can cause no damage, there is not the same reason for treating it as a trespass which exists in the case of an entry upon lands, and if the owner himself does not make use of the fishery for purposes of profit, and is cognizant of the acts of others within it, it would seem that a license to enter might well be implied until in some manner the objection of the owner is manifested."

Trespass by means of Inanimate Objects. It is a trespass to cast inanimate objects upon the land of another, or to throw water upon it, or to cut trees so that they fall upon it, and this whether the result was intended or not. It has accordingly been

Tazewells, 25 Gratt. 786; State v. Taylor, 27 N. J. 117; Haney v. Compton, 36 N. J. 507; Metzger v. Post, 44 N. J. L. 74; Birdsall v. Rose, 46 N. J. L. 361; Compare Brinkerhoff

. Starkins, 11 Barb. 248. There are statutes in some States for the protec tion of fishing rights acquired by improvement. See above cases. Also, Commonwealth v. Weatherhead, 110 Mass. 175. One may not take oysters planted by another and staked out in public water, although such planting is a public nuisance. Grace v. Willets, 14 Atl. Rep. 559 (N. J.)

Tinicum Fishing Co. v. Carter, 61 Penn. St. 21; Lincoln v. Davis, 53 Mich. 375.

2 Moulton . Libbey, 37 Me. 472.

3 Marshall v. Steam Nav. Co., 3 B. & S. 732; Cobb v. Bennett, 75 Penn. St. 326.

4 Wilson v. Forbes, 2 Dev. 30; Collins v. Benbury, 3 Ired. 277; S. C. 5 Ired. 118; State v. Glen, 7 Jones, (N. C.) 321.

5 See Marsh v. Colby, 39 Mich. 626.

held that, if where one is blasting rock, the fragments are thrown upon the land of another, this is an actionable trespass, and it is no defense that the party was guilty of no negligence. So, if one, in cutting down trees, causes one to fall, though without meaning to do so, on the land of his neighbor. But if a deposit of stones or other material on one man's land is carried by a violent storm upon the land of another, this is no trespass, and is to be regarded as an accident merely.'

2

Waste. Waste is an injury done or suffered by the owner of the present estate which tends to destroy or lessen the value of the inheritance. This is an injury to any person having an interest in the reversion, and it may be an injury to any person having a lien on the land. Waste differs from trespass in its being committed or suffered by the person actually or constructively in possession of the land, while trespass is an injury to the possession itself."

[*333] *Waste is either voluntary or permissive. The first consists of some positively wrongful act which injures the inheritance; the other consists in the neglect of some duty from which a like injury follows. There is no absolute rule as to what shall constitute waste under all circumstances, because many things are injurious at some times and in some places which might be positively beneficial in others. A striking illustration is afforded in the case of the cutting of timber. The tenant of lands, whether for life or for any lesser estate, is entitled to take wood for ordinary uses thereon; for fuel, and for the repairs of buildings, fences and agricultural implements; and in England,

Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163; St. Peter v. Denison, 58 N. Y. 416; Georgetown, &c., R. R. Co. v. Eagles, 13 Pac. Rep. 696. (Col.) See Beauchamp v. Saginaw Min. Co., 50 Mich. 163. So, if in improving his own premises, one casts material upon another's he is liable, notwithstanding he has a license from municipal authorities. Mairs v. Manh. Real Est. Assn., 89 N. Y. 498. The inundation of premises by a defective sewer is a trespass. Seifert v. Brooklyn,

5

101 N. Y. 136. So is throwing snow upon another's premises. Barry . Peterson, 48 Mich. 263.

Newsom o. Anderson, 2 Ired. 42. Snook v. Brantford, 14 Up. Can. Q. B. 255.

4 One who, not being a tenant in possession, has a right to take ore from land is not guilty of waste, if he takes more than he ought. Grubb's App. 90 Penn. St. 228.

5 Bl. Com. 35; 1 Washb. Real Prop. 4th ed. 128.

and some parts of this country, he would be limited strictly to what was reasonable for these purposes, and would be liable for waste if he exceeded what was reasonable.' So he could only cut for use on the premises, and would not be at liberty even to exchange that which was growing upon the estate, but was unfit for his purposes, for suitable wood procured elsewhere.' But any such strictness would be manifestly unsuited to the condition of things in other parts of this country, because it could be of no service to the inheritance. In the newer States, where timber is abundant, it might, indeed, be beneficial to the inheritance, rather than wasteful, to permit the timber to be removed; and therefore what is waste elsewhere might, in these sections of the country, be permissible. It has been held in Ohio that a widow endowed of wild lands might not only take the common law estovers, but she might also cut wood upon the premises and sell the same to pay the taxes upon the estate and the expenses of overseeing the property and protecting it against trespasses and other injury.

But she may, no doubt, go further than this, where her assignment of dower is wholly or mainly of wild lands, and clear off a reasonable proportion of them for the purposes of cultivation. That would be a reasonable use of the land, and not waste. So it might be a reasonable use of the premises to *cut and sell hoop poles from them, if [*334]

1 Webster o. Webster, 33 N. H. 18; Lester v. Young, 14 R. I. 579. See Sarles. Sarles, 3 Sandf. Ch. 601. So to cut timber merely for sale. Dorsey

Moore, 6 S. E. Rep. 270 (N. C.) So as to cutting valuable forest trees, where there is little woodland on a farm. Powell v. Cheshire, 70 Geo. 357. See, Silva v. Garcia, 65 Cal. 591.

2 White v. Cutler, 17 Pick. 248; Livingston . Reynolds, 2 Hill, 157; Elliott v. Smith, 2 N. H. 430; Richardson v. York, 14 Me. 221; Phillips v. Allen, 7 Allen, 115.

Crockett v. Crockett, 2 Ohio, (N. 8.) 180.

Parkins v. Coxe, 2 Hayw. 339; Owen . Hyde, 6 Yerg. 334; Hastings . Crunckleton, 3 Yeates, 261; Allen

v. McCoy, 8 Ohio, 418; Shine v. Wilcox, 1 Dev. & Bat. Eq. 631. For the Massachusetts rule see Conner v. Shepherd, 15 Mass. 164; White . Cutler, 17 Pick. 248. It is not waste if the cutting does not damage or diminish the value of the inheritance and is conformable to the rules of good husbandry, even though the timber so cut is sold or used off the premises. Wilkinson v. Wilkinson, 59 Wis. 557. Moving cabins and cutting timber is not waste. But allowing fixturesgin machinery-to be detached and sold, and the gin-house to be dismantled, and woodland to be sold for taxes payable by the tenant are severally, acts of waste. Cannon v. Barry, 59 Miss. 289.

that had been the customary use before the tenant's estate began.1

For the tenant to do upon leasehold premises that for which the premises are leased can never be waste, provided it is done in a proper manner. But, except where they are leased for a special purpose, and always when the estate comes into existence by operation of law, as in case of dower, the question of waste must be governed largely by the previous use. This is particularly true as regards buildings. It would be waste to turn a dwelling into a shop or a stable; or, on the other hand, to make over a shop or a stable into a dwelling; the right of the tenant is to use the buildings as they are, and not to force upon the reversioner something new or different in the place of them.* Slight changes may lawfully be made, provided they do not injure the inheritance, but preserve the estate substantially the same. So with respect to the land itself; it would be waste to cut up farming lands with excavations in search for minerals or to sell gravel or clay; though if such had been the previous use of the premises it would be different. In England, any essential change in the methods of cultivating farming lands might, perhaps, be waste; as by changing arable land into meadow, and the like; but this can now scarcely be a general rule in that country, and is not recognized in this."

'Clemence v. Steere, 1 R. I. 272. 2 Huntley. Russell, 13 Q. B. 572.

See Winship v. Pitts, 3 Paige, 259. The general principle governing waste is, that the tenant shall not be permitted to do any act of permanent injury to the inheritance, except to take his reasonable estovers. Webster . Webster, 33 N. H. 18, citing Chase v. Haseltine, 7 N. H. 171; Pynchon v. Stearns, 11 Met. 304. But decayed and worthless buildings may be taken down. Clemence v. Steere, 1 R. I. 272; Beers v. St. John, 16 Conn. 322. The right to alter a building does not include the right to tear down though a better one is erected. Davenport v. Magoon, 13 Oreg. 3. To build a chimney with

out the landlord's consent is waste. Brock v. Dole, 66 Wis. 142.

4 Tenant for life of salt works may open new wells. Findlay . Smith, 6 Munf. 134, relying upon Clavering v. Clavering, 2 P. Wms. 388. If coal has been mined for domestic use, the life tenant may not mine for sale. Franklin Coal Co. v. McMillan, 49 Md. 549. So, if mining has been abandoned for forty years by the owner a life tenant may not mine. Gaines v. Green Pond, &c., Co., 32 N. J. Eq. 86. A tenant without impeachment of waste may not commit malicious waste to the injury of the remainder man. Stevens v. Rose, 37 N. W. Rep. 255 (Mich.)

5 See Washb. Real Prop. 4th ed.

145.

To sell manure made on the premises to be removed from it is waste in the case of agricultural lands, because it is implied in leasing such lands that the manure made is to be used thereon.1

Permissive waste consists in suffering that to take

place to the injury of the inheritance, which ordinary [*335] care would prevent. In respect to buildings, a tenant, unless he has covenanted to make repairs, is under no obligation to do more than to exercise reasonable diligence for their preservation; but a duty to that extent is incident to the relation. A like duty arises to protect the remainder of the estate against negligent waste and decay, and this extends to protection against the acts of trespassers. A tenant is liable for waste if a building is injured or destroyed by his negligence; but not for accidental fires occurring without his fault, unless upon covenants."

While for waste actually committed, an action on the case for the recovery of damages is the common remedy, a more effectual protection for the interest of the reversioner is the preventive remedy by injunction, when the waste is merely begun or threatened. Where one has only a lien on the premises, he is entitled to the like preventive remedy, but it is not so clear what remedy he would have by action. In New York it has been decided that if the mortgagor, or one in privity with him, commits voluntary waste upon the mortgaged premises, and the premises, in consequence, prove insufficient for the satisfaction of the mortgage debt, he may recover the damage done him by the waste, of the party committing it, provided the mortgagor is insolvent, or not personally liable for the debt. In Massachusetts the court goes further, and holds that the damage is not to be measured by proof of insufficiency of the remaining security. "The mortgagee," it is said, "is not obliged to accept what remains as satisfaction pro tanto of his debt, at any valuation. whatever. He is entitled to the full benefit of the mortgaged

Perry v. Carr, 44 N. H. 118; Hill . De Rochemont, 48 N. H. 87; Lassell v. Reed, 6 Me. 222; Lewis v. Jones, 17 Penn. St. 262; Daniels v. Pond, 21 Pick. 367.

* Attersoll v. Stevens, 1 Taunt. 183;

Cook v. Champlain, &c., Co., 1 Denio,

91.

3 4 Kent, 81, and note.

Shepard v. Little, 14 Johns. 210; Van Pelt v. McGraw, 4 N. Y. 110; Yates v. Joyce, 11 Johns. 136.