48

§ 571. Waste-Who may be Held for.-While it was customary in early times that only tenants in dower, curtesy and guardians in chivalry were responsible for injuries done to the freehold which they occupied as such tenants, by the statutes before referred to, all tenants for life or years were made responsible for waste. This liability on the part of termors or life tenants exists also in this country, either by express provisions in statutes or as an implied principle of the common law.4 Although these statutes were construed not to prevent one of two cotenants from injuring the freehold of which he owned an undivided interest in such a manner as to damage his cotenant, this was remedied by statute of Westminster II, chapter 22, in England, and in many states in this country tenants in common are made liable for waste by statute. 49 In North Carolina, under such a statute, it is said that "it was the intention of the legislature to give the action on the case to one tenant in common whenever a permanent injury is done to the freehold by his cotenant, in which his damages shall be measured by the injuries actually sustained, and it is called an action of waste simply to point out what nature and kind of injury complained of must be to authorize the action." 50

It is evident that where two persons are tenants in common of the fee in lands that each one has, until partition has been made, an interest in the whole of the land, and that each has a right to perform all

48 Sackett v. Sackett, 8 Pick. 309; Dozier v. Gregory, 1 Jones (46 N. C.), 100; Sherrill v. Connor, 107 N. C. 543, 12 S. E. 588; Webster v. Webster, 33 N. H. 18, 66 Am. Dec. 705.

49 Benedict v. Torrent, 83 Mich. 181, 21 Am. St. Rep. 589, 47 N. W. 129; Nelson v. Clay, 7 J. J. Marsh, 139, 23 Am. Dec. 387; McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 49 Am. Rep. 686, 27 Pac. 863; Smith v. Sharpe, Busb. 91, 57 Am. Dec. 574; Johnson v. Johnson, 2 Hill Eq. 277, 29 Am. Dec. 72. 50 Smith v. Sharpe, Busb. 91, 57 Am. Dec. 574.

acts of ownership over every part except as they interfere with the same right on the part of the other cotenant. Each one has the right to occupy all the premises for the purposes contemplated or possible, but not to the exclusion of the other. When one is excluded by the other the wrong is neither trespass nor waste. Where there are two equal cotenants, each is entitled to half the premises in severalty, or the profits from one-half, so that while one has the right to cut timber growing upon the lands,51 he will be liable if he cuts more than his share, and the action, as has been said, is on the case.52 Although one court has said that an action on the case will lie against a cotenant whenever there is a destruction of the thing held in common,53 in tenancies in common, as every part thereof is held in common, and any use which destroys a part thereof destroys something held in common, such a rule would prevent any but the most limited use of the premises. It would seem that the proper rule would not render a tenant in common liable unless he has destroyed more than his share of the trees.

A different question is presented when minerals are extracted from the soil, for it is difficult to see into the ground and determine just what proportion has been taken. This, it has been held, "may be a reason why a court of equity should order an accounting, but ought not to operate as a prohibition upon the working of the mine by anybody." This was said where the sole subject of the tenancy was a mine.

"54

51 Dodd v. Watson, 4 Jones Eq. 48, 72 Am. Dec. 577.

52 Benedict v. Torrent, 83 Mich. 181, 21 Am. St. Rep. 589, 47 N. W. 129.

53 Smith v. Sharpe, Busb. 91, 57 Am. Dec. 574.

54 McCord v. Quicksilver Min. Co., 64 Cal. 134, 49 Am. Rep. 686, 27 Pac. 863. See Russell v. Merchants' Bank, 47 Minn, 286, 28 Am. Rep. 386, 50 N. W. 228.

and the cotenant was not excluded. The same rule was applied where a cotenant carried on a brick-making business on lands which had upon them works for such business, and that was the customary mode of enjoying the estate.55 As was justly remarked by

Justice Sharswood: "Here a tenant in common exercises his undoubted right to take the common property, and he has no other means of obtaining his own just share than by taking at the same time the shares of his companions. The value of the ore in place is, therefore, the only just basis of account." 56 A mortgagor of lands stands in somewhat the same relation to his mortgagee as a tenant does to his lessor. By injury to the premises he lessens the security which the mortgagee has for his money. So the mortgagor has no right to use the land in such a manner as to render it an inadequate security for the sum owing to the mortgagee, and if he does, he is liable for waste.57 Similarly, a vendor who retains possession of his land will be held responsible for every act of waste which depreciates the value of the land coming into the possession of the vendee upon payment of the purchase money;58 and the vendee, if he comes into possession before payment, must not impair the premises as a security for the purchase price to the vendor.59 Besides, those tenants whose estate is

55 Russell v. Merchants' Bank, 47 Minn. 286, 28 Am. St. Rep. 368, 50 N. W. 228.

56 Coleman's Appeal, 62 Pa. St. 252.

57 Youle v. Richards, 1 N. J. Eq. 534, 23 Am. Dec. 727; Fairbank v. Cudworth, 33 Wis. 358; Moriarty v. Ashworth, 43 Minn. 1, 19 Am. St. Rep. 203, 44 N. W. 531; Scott v. Webser, 50 Wis. 53, 6 N. W. 363.

58 Holmberg v. Johnson, 45 Kan. 197, 25 Pac. 575; Durrett v. Simpson, 7 T. B. Mon. 517, 16 Am. Dec. 115.

59 Scott v. Wharton, 2 Hen. & M. (Va.) 25; Moses v. Johnson, 88 Ala. 517, 16 Am. St. Rep. 58, 17 South. 146; Taylor v. Collins, 51 Wis. 123, 8 N. W. 22.

1

either a freehold or for some certain time, tenants at will or at sufferance may also be made to suffer for acts of waste, both in damages and by forfeiture.GO

It is not necessary, to hold a tenant for life or years, to show that the injury was the result of acts on the part of the tenant himself; it is enough that they are done during his term,61 although it is a good defense that the injury is the result of an act of God, or public enemy. The principle upon which this rule is based is just and equitable. "As the property of the landlord is placed in the tenant's possession, who has the legal power to prevent all waste from being done to it, and to recover for it when committed, as in most instances it would be impossible for the landlord to ascertain in time or come at the wrongdoer, it appears to have been the policy of the law to cast the liability on the part of the tenant for all waste committed on the property, except when caused by the act of God or of the king's enemy." 63

62

An interesting question is presented in this connection, and one which is of considerable importance. It is clear that the landlord may recover for the waste from his lessee, and that the lessee can in turn recover from the stranger who commits the wrong. But if the tenant does not bring his suit against the stranger, and is not able to recompense his landlord for the damage done, has not the latter a right of action against the stranger? Waste, technically, can only lie against the tenant, and trespass quare

60 Freeman v. Headley, 33 N. J. L. 523; Daniels v. Pond, 21 Pick. 367, 32 Am. Dec. 269; Pettengill v. Evans, 5 N. H. 54; Wright v. Roberts, 22 Wis. 161.

61 Powell v. Dayton etc. Ry. Co., 16 Or. 33, 8 Am. St. Rep. 251, 16 Pac. 863; Regan v. Luthy, 16 Daly, 413; White v. Wagner, 4 Har. & J. 373, 7 Am. Dec. 674.

62 See ante, sec. 570, as to tenant's right to sue in trespass for injuries to his premises.

63 White v. Wagner, 4 Har. & J. 373, 7 Am. Dec. 674.

clausum fregit may only be brought by the one actually or constructively in possession. The wrong of the trespasser, however, is an injury to the landlord as well as the tenant, and each should be entitled to recover for his injury separately from the other.

64

§ 571a. Same-The Form of Action.-We have shown that the correct common-law action is case in these circumstances, and though some courts indicate that waste may be brought, it is probably more nearly correct that the action is case in the nature of waste. That the stranger to lands owes a duty to each person having an interest therein is clear, and under the reformed procedure it is not necessary to allege the wrong in any precise form, but in those states which have not drawn away from the common-law forms in pleading, this wrong to the tenant should be laid in trespass quare clausum fregit and to the landlord in trespass on case in the nature of waste. But it is said that "when the cause of action alleged is an injury both to the possession and to the freehold, affecting both plaintiffs, though in different degrees, a tenant for life and the remainderman may "join in case for the recovery of damages."

" 65

64 California Dry Dock Co. v. Armstrong, 17 Fed. 216. See, ante, sec. 570.

65 McIntire v. Westmoreland Coal Co., 118 Pa. St. 108, 11 Atl. 808.