Waste

The rule prescribed by it cannot, against the protest of a shareholder, be used to justify payments of sums as salaries so large as in substance and effect to amount to spoliation or waste of corporate property. If a bonus payment has no relation to the value of services for which it is given, it is in reality a gift in part, and the majority stockholders have no power to give away corporate property against the protest of the minority.

Lasting and wrongful injury by the holder of a particular estate to the detriment of the holder of the reversion or remainder. To constitute waste, the injury must be wrongful (3 Sup. Ct. N. Y. 60), by the ten-, ant, or through his fault (2 Minor, Inst. p. 529), and must occasion lasting injury to the inheritance (1 Washb. Real Prop. 147). What constitutes waste in a particular case is a question of fact. 22 N. J. Law, 521. Waste is distinguished from "trespass" in that the latter is the act of a stranger, while waste is the act of a tenant. It is distinguished from "devastavit," which is waste by an executor or administrator. (1) Permissive waste consists in the mere neglect or omission to do what will prevent injury (69 Mich. 259), as, to suffer a house well as to the buildings, trees, fences, or live stock on the premises. See "Permissive Waste." (2) Voluntary waste consists in the commission of some destructive act; as, in pulling down a house, or ploughing up a flower garden. 1 Paige, Ch. (N. Y.) 573. (3) Equitable waste is such injury to the inheritance as is within the legal right of the tenant, but which a man of ordinary prudence would not commit in the management of his own property. 29 Law J. Ch. 598. (4) Meliorating waste is that which increases the present value of the estate, but damages the inheritance by charging it with added burden, as by improvement, the unpaid cost whereof is a lien.

Spoil or destruction, done or permitted, to lands, houses, gardens, trees or other corporeal hereditaments, by the tenant thereof, to the prejudice of the heir or of him in reversion or remainder. 2 Bl. Comm. 281. Waste is a spoil and destruction of an estate, either 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 very significantly by the word "vastum." 3 Bl. Comm. 223. Waste is a lasting damage to the reversion caused by the destruction, by the tenant for life or years, of such things on the land as are not included in its temporary profits. Proffitt v. Henderson, 29 Mo. 325.

In old English criminal law. A prerogative or liberty, on the part of the crown, of committing waste on the lands of felons, by pulling down their houses, extirpating their gardens, plowing their meadows, and cutting down their woods. 4 Bl. Comm. 385.

— Commissive waste. Active or positive waste; waste done by acts of spoliation or destruction. rather than by mere neglect; the same as voluntary waste. See infra.

— Double waste. See Double.

— Equitable waste. Injury to a reversion or remainder in real estate, which is not recognized by the courts of law as waste, but which equity will interpose to prevent or remedy. Gannon v. Peterson. 193 III. 372, 62 N. E. 210, 55 L. It. A. 701; Crowe v. Wilson, 65 Md. 479, 5 Atl. 427, 57 Am. Rep. 343. Otherwise defined as an unconscientious abuse of the privilege of non-impeacbability for waste at common law, whereby a tenant for life, without impeachment of waste, will be restrained from committing willful, destructive, malicious, or extravagant waste, such as pulling down houses, cutting timber of too young a growth, or trees planted for ornament, or for shelter of premises Wharton.

— Impeachment of waste. Liability for waste committed, or a demand or suit for compensation for waste committed upon lands or tenements by a tenant thereof who has no right, to commit waste. On the other hand, a tenure "without impeachment of waste" signifies that, the tenant cannot be calied to account for waste committed.

— Nul waste. "No waste." 'The name of a plea in an action of waste, denying the commission of waste, and forming the general issue.

— Permissive waste. That kind of waste which is a matter of omission only, as by suffering a house to fall for want of necessary reparations. 2 Bl. Comm. 281; Willey v. Laraway, 64 Vt. 559, 25 Atl. 436 ; Beekman v. Van Dolsen, 63 Hun, 487, 18 N. Y. Supp. 376; White v. Wagner. 4 Har. & J. (Md.) 391, 7 Am. Dec. 674.
—'Voluntary-waste. Active or positive waste; waste done or committed, in contradistinction to that which results from mere negligence, which is calied "permissive" waste. 2 Bouv. Inst. no. 2394. Voluntary or comtaissive waste consists of injury to the demised premises or some part thereof, when occasioned by some deliberate or voluntary act, as, for instance, the pulling down of a house or removal of floors, windows, doors, furnaces, shelves, or other things affixed to and forming part of the freehold. Regan v. Luthy, 16 Daly, 413, 11 N. Y. Supp. 709. Contrasted with "permissive" waste.

— Writ of waste. The name of a writ to be issued against a tenant who has committed waste of the premises. There were anciently several forms of this writ, adapted to the particular circumstances.

Any squandering or misapplying of property by persons charged witii a trust or duty in respect to it, by which the property is lost or diminished in value; the destruction or material alteration of any part of a tenement by a tenant for life or for years, to the injury of the person entitled to the inheritance. Waste is voluntary or permissive, — voluntary, when actually committed; permissive, when it is the result of omission or neglect. It is legal or equitable, — legal, when such as a court of law may restrain; equitable, when "" such as a court of equity alone can restrain. It is double when committed for the repair of other waste.

In old English law. A prerogative or liberty on the part of the crown, of committing waste on the lands of felons, by pulling down their houses, extirpating their gardens, ploughing their meadows, and cutting down their woods.

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.

Spoil or destruction done or houses, lands, or tenements. Voluntary waste actually committed, as by cutting a house. Permissive or negligent by neglecting to repair. Equitable Writ of waste: an old mixed action, had the next estate of inheritance against years, in curtesy or dower, committing of Marlberge and at common law the single damages; but by the Statute of treble damages and the land or tenement minster II. the remedy was given to against another. This action long since on the case for waste, and the b Ul in V. Estrepement. Waste in the tenet estate still existed, and the writ was ages and the estate itself; in the tenuit, estate had determined and the writ was ages for past waste.' Lord's waste: v.

Several definitions have been given, and are presented; but those from English sources should be read with the recollection that American courts have held, and with obvious good reason, that the doctrine of waste, as understood in England, is not fully applicable to a new and unsettled counti-y. Kidd V. Dennison, 6 Barb. 9; Keeler v. Eastman, 11 Vt. 293; Findlay v. Smith, 6 Munf. 134. Thus the cutting and selling of growing trees is not necessarily waste in this country, in every case where by the common law of England it would be so held. In deciding the question of waste, regard is to be had to the condition of the land, and whether good husbandry, as understood and practised here, requires that the land should be cleared or the trees felled and marketed. To what extent wood and timber may be cut without waste is a question for the jury. Drown v. Smith, 52 il/e. 141. And it is not waste to cut down wood or timber so as to fit the land for cultivation, provided it does not injure the inheritance, and is conformable to the rules of good husbandry even though the wood or timber is sold or consumed off the premises. Keeler v. Eastman, 11 Vt. 293. As to what particular acts of injury have been held to be or not to be waste, in the various states, see U. S. Dig. tit. Waste. Waste is a lasting damage to the reversion caused by the destruction, by the tenant for life or years, of such things on the land as are not included in its temporary profits. Proffitt V. Henderson, 29 Mo. 325. Waste is any thing that does permanent injury to the inheritance. Jackson v. Brown- The destruction or material alteration of any part of a tenement, by a tenant for life or years, to the injury of the person entitled to the inheritance; such, for example as the demolition of buildings, or the cutting of timber. (1 Steph. Com. 241.) Spoil and destruction done, or allowed to be done, to houses, woods, lands, or other corporeal hereditaments, by the tenant thereof, during the continuance of his tenancy. (3 7rf. 603.) BurriU. Waste is a spoil and destruction of an estate, either 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 very significantly by the word vastum. 3 Bl. Com. 223. It is spoil or destruction, done or permitted, to lands, houses, or other corporeal hereditaments, by the tenant thereof, to the prejudice of the heir or of him in reversion or remainder. Bouvier. A spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail. Co. Litt. 53; 2 Bl. Com. 284. A spoil made either in houses, woods, lands, &c., by the tenant for life or years, to the prejudice of the heir, or of him in the reversion or remainder. Cowel; KUchin, 168. Any spoil or destruction in houses, gardens, trees, &c., to the prejudice of the expectant in fee. It is either legal, subdivided into voluntary or. commissive, or permissive or omissive; and equitable, which comprehends some acts not deemed waste at the common law. Wharton. Spoil and destruction done, or allowed to be done, by a tenant for life or other particular estate, to houses, woods, lands, or other corporeal hereditaments, during the continuance of his particular estate therein. Whatever is hurtful to the freehold or inheritance is waste. Waste is either voluntary or permissive: voluntary, if it be a matter of commission, as by pulling down a house; permissive, as if a house be allowed to fall into ruin for want of necessary repairs. Mozley S/- W. Waste denotes that havoc or devastation which arises from exceeding the right of user. The word is, therefore, applicable only to persons having limited interests or estates in lands; e.g., tenant for life, or pur autre vie, tenant in dower, and tenant by the curtesy; and is inapplicable, as a general rule, to tenants in fee-tail or in feesimple. By the common law, waste was punishable in the cases only of tenants for life who were such by operation of law, — namely, tenant in dower and tenant by the curtesy; but by the statute of Marlbridge (52 Hen. III.), ch. 23, it was made punishable in the cases also of tenants for life, or pur autre vie, or for years, who were tenants have long interfered to remedy waste in cases in which the courts of law were powerless to interfere; and thus there grew up a distinction of waste into legal, on the one hand, being such as law can restrain, and equitable, on the other hand, being such as equity alone can restrain. However, by the j udicature acts, this distinction appears to be abolished. While it subsisted, the divisions and subdivisions of waste were the following: Legal waste, being either voluntary waste or permissive waste; and equitable waste, which was in all cases voluntary, and so is described as equitable waste only. Voluntary legal waste consisted in the following particulars: Pulling down houses, pulling down wainscots, doors, windows, furnaces, and other such fixtures, causing timber trees to decay, stubbing up underwood, cutting down fruit-trees in an orchard, cutting down trees which shelter the mansion; also, opening new gravel-pits, lime-pits, clay-pits, &c., or new mines of metal, coal, or the like; also, the conversion of old meadow land into arable, or of arable into plantation, or the like. Permissive legal waste consisted in suffering houses to get into decay; but the courts have ceased to give any remedy or assistance in such cases. Equitable waste consisted in " malicious, extravagant, or humorsome" acts of destruction on the part of a tenant who was not impeachable for waste at law. Brown.