tenants for terms of years under lease or express demise, it has been holden, contrary to the former prevailing opinion, (v) that no action for permissive waste in buildings is sustainable against a tenant by lease who has not covenanted to repair. (w) So it has been decided that a tenant for years who has covenanted to repair and leave the premises in as good a condition as they were in when finished by one J. M., is not liable to be sued generally for permissive waste. (x) That decision is correct, if the statute of Gloucester, which speaks of forfeitures for waste done by tenants for term of life or years, does not extend to permissive waste, or waste occasioned by accidental burning; but otherwise it is obviously incorrect. (y) In the case of land of copyhold tenure, we have seen that, if there be no custom to the contrary, waste, either permissive or voluntary, of a copyholder is a forfeiture of his copyhold, and this, although the waste be committed or permitted by a mere under-tenant; (*) and therefore a copyholder must take special care to keep his customary tenement in good repair. Where there has been an express covenant or agreement to repair, the action should be upon the same, though it has been held that the landlord has the option of suing in case. (a) If a tenant neglect to repair according to contract, and the lessor himself be a lessee, and under pain of forfeiture, he may enter, without the sub-lessee's consent, and perform the repairs; (b) or if he be sued by the superior landlord on his covenant to repair, and his immediate tenant refuse to repair, or defend the action, the damages and costs recovered against him by the ground landlord and the costs of defence may form the measure of damages to be recovered in his subsequent action against his own tenant; (c) and though it is usual and advisable in such a case to give notice of the threatened action of the superior landlord, it is not absolutely necessary to give the same. CHAP. IV. II. & III. INJU RIES TO REAL Every tenant from year to year is bound not to commit volun- Tenants from tary waste, such as ploughing up strawberry beds still in bear- year to year, or ing, and this, although he paid for them at a valuation when year. (v) See Mr. Serjeant Williams's note, 1 Saund. 323, b., note 7; 2 Saund. 259, note 11. (w) Herne v. Benbow, 4 Taunt. 764; 5 Coke, 13, b. ; 2 Saund. R. 252, a., note 1. by Patteson and Williams, but there stated as doubtful; 1 Tho. Co. Lit. 644, note 19. (x) Jones v. Hill, 7 Taunt. 392; 1 J. B. Moore, 100, S. C. (y) See 1 Tho. Co. Lit. 644, note 19, and cases there cited, where the statute of (z) Ante, 388; 1 Tho. Co. Lit. 673, (a) 2 Bla. R. 1111; 2 Saund. 252, a. b., note 7. (b) 2 B. & Cres. 273; 3 Dowl. & R. 522, S. C. (c) 3 B. & Cres. 533; 5 Dowl. & R. 542, S. C.; and see 5 Bar. & Cres. 603. CHAP. IV. II. & III. INJU RIES TO REAL PROPERTY. he entered. (d) As to permissive waste, Mr. Serjeant Williams has stated that a tenant from year to year, or even for half a year, is, under the statute of Gloucester, liable for permissive waste, and consequently bound to repair; (e) but it would be unreasonable to require a person who has so short, precarious, and uncertain an interest, determinable at any time by a notice to quit, to incur the expense of repairs, for he merely hires, and impliedly engages to pay for the temporary use of the premises, and to use the premises in a proper manner; and as to reparations, it is more reasonable that the landlord, who has the permanent or larger interest, should make them, unless the dilapidation be occasioned by breakage or other want of care on the part of the occupier. And the modern decisions accord with this view of the tenant's liability; and he is not even bound to make or do what are termed tenant's repairs, or to keep the premises wind and water tight; and although in the absence of express stipulation he cannot compel the landlord to repair, (ƒ) yet it has been held that when the premises have become uninhabitable, and the landlord refuses to repair, the tenant may quit without a regular notice to quit, and may resist the payment of any future rent; and the supposition that a tenant from year to year is liable to repair, has been refuted by the more recent learned editors of Saunders, (g) and by decisions which establish that a mere tenant from year to year, still less for half a year, is not bound to repair in the absence of a covenant or agreement to do so. (h) But which is implied when such a tenant holds over after a lease containing an express covenant to keep in repair, (i) and extends to all stipulations in such lease that can possibly be applicable to a tenancy from year to year. (k) And where a party takes possession under an agreement for a lease, he may be treated as impliedly agreeing to become tenant from year to year on the terms of the (d) Wetherell v. Howells, 1 Campb.227. (g) Id. ibid. note (k); 2 Id. 252, a., (h) 5 Co. 13, b., Hale's MS.; Gibson v, Wells, 1 New Rep. 290; Herne v. Benbow, 4 Taunt. 764; 1 Marsh. 567; 6 Taunt. 300, S. C.; Jones v. Hill, 1 J. B. Moore, 100; 7 Taunt. 392; Horsefall v. Mather, Holt's C. N. P. 7; 1 Saund. 323, a., n. (i); 2 Saund. 252, a., n. (b), But see Co. Lit. 57, a., 7; 1 Saund. 323, b., n. (7). (by Mr. Serjt. Williams) it was supposed that a tenant from year acc. to year is bound to keep premises in tenantable repair, though not bound to make substantial and lasting or general repairs, such as putting a new roof on an old house, putting in a new main-beam, &c.; and see id. 2 Esp. Rep. 598; 2 Bla. Rep. 84; 2 Bar. & Cres. 278; 3 Dowl. & Ry. 522. (i) 2 Bar. & Cres. 273; 3 Dowl. & R. 522, S. C. CHAP. IV. II. & III. INJU PROPERTY. agreement; (7) and he may also be sued for the breach of an implied contract to use the premises in a tenantlike manner, RIES TO REAL although the agreement for a lease stipulated that it should contain a covenant to repair. (m) Such a tenant from year to year impliedly engages to use the premises in a tenantlike manner, or in the case of lands, in a husbandlike manner, (n) and in general also according to the custom of the country where the lands are situate; (0) but an express lease or written agreement, as far as it speaks on the subject, would exclude the effect of any custom or usage, (p) and therefore where the declaration stated that the defendant was tenant to the plaintiff, and in consideration thereof that he promised to use the lands in a husbandlike manner, and the proof was of an agreement to farm lands in a husbandlike manner, to be kept constantly in grass, this was holden a fatal variance. (9) It has been long settled that a mere tenant strictly at will is not bound to repair or prevent permissive waste. (r) ral. The remedies for waste, as in most other cases, are preven- Remedies for tive, or for compensation, or for punishment. To prevent waste waste in gene.the landlord may in general, without express reservation, enter the premises to which he is entitled in remainder or reversion, to see whether waste has been committed, without being a trespasser; (s) or he may enter under a clause of forfeiture for waste; (t) or he may in some cases enter to repair, so as to prevent a forfeiture of his own leasehold estate; or he may file a bill in equity, and move for an injunction to prevent wilful waste; (u) or he may have in some cases a writ de reparatione faciendo; or he may sustain covenant or assumpsit for a breach of covenant made to himself or running with the land, (x) according to the contract; or an action on the case for wilful waste. (y) If wilful waste has been committed by a tenant for life or years to a considerable extent, then a writ of waste may be proceeded in for the recovery of the property wasted, and (1) Ante, 390, n. (k); 1R. & M, C. N. P. 355; 3 Bar. & Cres. 478; 1M. & P. 183. (m) 2 Bar. & Cres. 273. (n) 5 T. R. 373; 4 East, 154; 1 Marsh. R. 567; 6 Taunt. 300, S. C.; Holt's C. N. P. 7; but see 2 Bar. & Cres. 273; 3 Dowl. & R. 522, S. C. (0) 4 East, 154; 5 T. R. 376; Holt's C. N. P. 7; 1 Marsh. 569; 5 Bar. & Cres. 909. (p) 1 Meriv. 15; 16 East, 71; 5 Bar. & Cres. 909; ante, 119. (q) 5 Bar. & Cres. 909. II. & III. INJU RIES TO REAL PROPERTY. CHAP. IV. treble damages; but if the damage were very trifling, and merely nominal, that remedy might wholly fail. (z) In such an action the defendant must in general plead his matter of defence specially, and not merely the general issue nul wast; thus if the writ charge that he ploughed up ancient meadow land, and cut down timber, he must plead specially that the ploughing was resorted to according to the custom of the country and for the purpose of ameliorating the meadow, and that the timber was cut and used for necessary repairs. (a) If the waste, either wilful or permissive, have been committed contrary to a lease containing a clause of forfeiture and re-entry, then possession may be taken peaceably; (b) or an action of ejectment may be sustained, provided the covenant broken ran with the land, but not otherwise. (c) And it should seem that under the general terms of the statute against malicious injuries a remainder-man or reversioner might proceed summarily before a justice for any wilful or malicious injury affecting his interest, and not occasioning more than 57. damages. (d) An action on the case in the nature of waste lies at the suit of a landlord against his tenant, for acts done by the latter while holding over after the expiration of a notice to quit,(e) and the landlord of a tenant from year to year, although there be no reservation of the timber on the premises, may support an action of trespass vi et armis against a third person for carrying it away after it has been cut down. (f) And where a lessor during the term cut down some oak pollards growing upon the demised premises, which were unfit for timber, it was held that as the tenant for life or years would have been entitled to them if they had been blown down and was entitled to the usufruct of them during the term, the lessor could not by wrongfully severing them acquire any right to them, and consequently that he, or his vendee, could not maintain trespass against the tenant for taking them. (g) When trees are excepted in the lease trespass is sustainable and not case, (h) and if not excepted the interest of the lessor continues in the body of the trees, so that he may support trespass for carrying them away. (i) But if a lessor during the term cut down trees grow (s) Keepers of Harrow School v. Alderton, 2 Bos. & Pul. 86. (a) Simmons v. Norton, 7 Bing. 640. (c) 32 Hen. 8, c. 31; 3 M. & S. 382; (e) 1 Campb. 360. (f) 2 Chit. Rep. 636. (g) 5 Bar. & Cres. 897; 8 Dow. & Ry. 651, S. C.; but see ante, 261. (h) 8 East, 196; ante, 261. (i) 1 Saund. 322, n. 5; 7 T. R. 13; 2 Campb. 491; ante, 261. ing upon the demised premises, which were fit only for fire wood, and the lessee take them away, trespass will not lie against the lessee at the suit of either the lessor or his vendee; (4) though if the trees had been fit for the purposes of reparation or sale it would have been otherwise. (1) CHAP. IV. RIES TO REAL Injuries by Waste, or as We have stated the instances in which a parcener, joint-tenant or tenant in common, may sue his co-tenant at law for waste, as between Parfor cutting trees or underwood of sufficient growth; (m) but in ceners, Jointgeneral a bill in equity for an injunction to prevent wanton Tenants in and malicious waste, is the preferable proceeding between Common. these parties. (n) tenants, and By the custom of the realm, or rather by the general law, Remedies for a suceeding incumbent may sue his predecessor, who has Ecclesiastical Dilapidations. resigned, for Dilapidations; (0) but not for omitting ornamental repairs; (p) and even the executors or administrators of a deceased rector or vicar may by this law be sued ; (9) although we have seen that in general no executor can be sued for a tort committed or permitted by his testator and not constituting the breach of a contract. And a successor may have separate actions against the executor of the late rector for dilapidations to different parts of the rectory; and though it has been usual in a declaration in such action to allege that assets of the deceased have come to the defendant's hands, that allegation is perhaps unnecessary, as the want of assets is matter of defence, and need not be thus anticipated by the plaintiff. (r) CORPOREAL We have considered the several kinds of Incorporeal pro- Injuries to INperty and the rights thereto, (s) and we have seen that they are Property. principally ancient lights, pews, commons, ways, watercourses, advowsons, tithes, offices, dignities, franchises of various kinds, as rights to hold courts, forests, chases, purlieus, parks, freewarrens, fisheries, corodies, and rents; (s) and we have at the same time noticed the injuries and offences, and remedies and punishments relating to the same. We may here observe that as regards any civil injury to the right to these, the remedy is |