Waste

3 Deterioration; destruction. 1.

Any squandering or misapplication of property or of a fund by trustees or others charged with a duty, or any aliuse of trust or of duty by which property is lost or an estate or trust fund is diminished in value.* If an executor or administrator be extravagant, it is a species of "devastation or waste" of the substance of the deceased.'

3.

A spoil or destruction in houses, gardens, trees, or other corporeal hereditament, to the disherison of him that has the remainder or reversion in fee-simple or fee-tail. Whatever does a lasting damage to the freehold or inheritance. 8 A spoil and destruction of the estate, in houses, woods, or lands, by demolishing not" the temporary profits only but the very substance of the thing, thereby rendering it wild and desolate, which the common law expresses by the word vastumj Spoliation or destruction to lands or other corporeal hei'editaments by a tenant to the prejudice of the reversioner or remainderman." Any unlawful act or omission of duty on Mut. Life Ins. Co. v. Pyle, 44 Ohio St. 31-32 (1886), cases; 3 Kent, *341; May, Ins. § 4. ' F. war-enne, a preserve for animals. = 2 Bl. Com. 38-39; 4 Law J. 648. ' L. vastiis, empty, desolate, devastated. * Ayers v. Lawrence, 66 N. T. 197 (1874), AUen, J. » 2 Bl. Com. 508; 3 id.

292. •2 Bl. Com. 281: Coke, Litt. 53. ' 3 Bl. Com. 233. 8 Ayers v. Lawrence, supra.

See also 1 Saw. 437; 59 the part of the tenant which reaults in permanent injury to the inheritance. 1 An improper destruction or material alteration or deterioration of the freehold, or of things forming an essential part of it, done or suffered by a person rightfully in possession as tenant, or having but a partial estate, like that of a mortgagor, 2 Double waste. Committing a new act of waste in providing against another act; as, felling timber for repairing a house suffered to be out of repair.

3 Legal "waste.

Such waste as a court of law may restrain. Equitable waste. Sucli as a court of equity alone can restrain; as, injury to a reversion or remainder.

Nul waste

No waste: a plea forming the general issue in an action of waste.

Permissive waste

A matter of omission only; as, by suffering a house to fall for want of necessary repairs.* Also called passive waste. " Arises from mere negligence, and want of sufficient care in reparations, fences, and the like." ^ Voluntary waste. An actual and designed demolition of lands, woods, and houses.5 Also called active waste. Writ of waste. An action, brought by the immediate reversioner or remainderman, to recover the land and damages for its illuse.* Removing a tiling once iixed to the freehold is waste; and, up to 1708, negligence in a lessee by which the house was bmrned; cutting down timber or causing it to decay, but not so as to underwood; converting land from one species to another; opening the ground in search of mines. The general heads of waste are then; houses, timber, land; though, whatever else tends to destroy or depreciate the value of the inheritance is waste. At one time waste was punishable only in a guardian in chivalry, in a tenant in dower, and in a tenant by curtesy; because, the law, which created those relations, afforded a remedy for abuses. In other cases, as in tenancy for life or years, up to 1268, it there was no remedy, the owner of the fee was at fault. The punishment consisted in being required to pay damages, possibly treble damages, and forfeiture of the thing or place.' It is not waste for a mortgagor to remove or change fixtures, to sell timber, to remove coal, stone, or other 1 Whitney v. Huntington, 31 Minn. 462 (1886), Berry, J. " Hamilton v. Austin, 36 Hun, 143 (1885), Fo Uett, J. 8 Coke, Litt. 53. •• 2 Bl. Com. 281. '3 Bl. Com. 223. See also Peirce v. Burroughs, 58 N. H. 304 (1878), cases. minerals from opened mines, nor growing nursery stock,— if done in good faith in the regular course o£ businessibefore foreclosure proceedings are begun and not in apprehension thereof. ' Modern remedies are by injunction to stay waste where the injury would be irreparable; and by special action on the case in the nature of waste, to recover It is now a common practice, in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, as, by extracting ores from a mine, cutting timber, or removing coal, to issue an injunction, though the title to the premises is in litigation.^ In the absence of an express covenant, there results, from the relation of landlord and tenant, an implied obligation on the part of the tenant not to commit waste, nor to permit it.* The English doctrine is not fully applicable to a new and unsettled country. Here, regard is had to the condition of the land, and, where the inheritance will not suffer, what good husbandry w^ould direct.^ A tenant for life cannot open new mines, because that wo^ld be a lasting injury to the inheritance; but his right to operate previously opened mines, and work them to exhaustion," cannot be questioned.* See Devastavit; Estrepement; Fixture; Impeach, 1; Manure; Mortgage; Tenant.