the Week of Proper 28 / Ordinary 33
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Waste
1911 Encyclopedia Britannica
or (0. Fr. wast, guast, gast, gaste; Lat. vastus, vast, desolate), a term used in English law in several senses, of which four are the most important. (I) "Waste of a manor" is that part of a manor subject to rights of common, as distinguished from the lord's demesne (see Commons, Manor). (2) "Year, day, and waste" was a part of the royal prerogative, acknowledged by a statute of Edward De Praerogativa Regis. The king had the profits of freehold lands of those attainted of felony and petit treason, and of fugitives for a year and a day with a right of committing waste in sense (3) thereon. After the expiration of a year and a day the lands returned to the lord of the fee. This species of waste was abolished by the Corruption of Blood Act 1814 (see Felony, Treason). (3) The most usual signification of the word is "any unauthorized act of a tenant, for a freehold estate not of inheritance, or for any lesser interest, which substantially alters the permanent character of the thing demised (i.) by diminishing its value, (ii.) by increasing the burden on it, (iii.) by impairing the evidence of title and thereby injuring the" inheritance "(West Ham Charity Board v. East London W.W., 1900, 1 Ch. 624, 637; cf. Pollock, Law of Torts, 7th ed., 345).
Waste in sense (3) is either voluntary or permissive. Voluntary waste is by act of commission, as by pulling down a house, wrongfully removing fixtures, cutting down timber trees, i.e. oak, ash, elm, twenty years old, and such other trees, e.g. beech, as by special custom are counted timber, in the district, opening new quarries or mines (but not continuing the working of existing ones), or doing anything which may - for this is the modern test - alter the nature of the thing demised, such as conversion of arable into meadow land. Although an act may technically be waste, it will not as a rule constitute actionable waste, or be restrained by injunction, in the absence of some prohibitive stipulation if it is" ameliorating,"i.e. if it improves the value of the land demised (see Meux v. Cobley, 1892, 2 Ch. 253, 263). In the case of" timber estates "upon which trees of various kinds are cultivated solely for their produce and the profit gained from their periodical felling and cutting, the timber Is not considered as part of the inheritance but as the annual fruits of the estate, and an exception arises in favour of the tenant for life (see Dashwood v. Magniac, 1891, 3 Ch. 306). Under the Settled Land Act 1882 a tenant for life may grant building, mining and other leases for the prescribed terms" for any purpose whatever, whether involving waste or not."Permissive waste is by act of omission, such as allowing buildings to fall out of repair. A" fermor "- a term which here includes" all who held by lease for life or lives, or for years by deed or without deed "by the statute of Marlborough (1267) - may not commit waste without licence in writing from the reversioner. In case a tenant for life or for any smaller interest holds (as is often the case by the terms of a will or settlement) without impeachment of waste" (sauns impeachment de wast, i.e. without liability to have his waste challenged or impeached), his rights are considerably greater, and he may use the profits salva rerum substantia (to use the language of Roman law, from which the English law of waste is in great measure derived). For instance, he may cut timber in a husband-like manner and open mines; but he may not commit what is called equitable waste, that is, pull down or deface the mansion or destroy timber planted or left for ornament or shelter (Weld-Blundell v. Wolseley, 1903, 2 Ch. 664). Acts of equitable waste were, before 1875, not cognizable in courts of common law, but by the Judicature Act 1873, s. 25 (3), in the absence of special provisions to that effect an estate for life without impeachment of waste does not confer upon the tenant for life any legal right to commit equitable waste. A copy-holder may not commit waste unless allowed to do so by the custom of the manor. The penalty for waste is forfeiture of the copyhold; Galbraith v. Poynton, 1905, 2 K.B. 258 (see Copyhold). The Agricultural Holdings Acts 1900 and 1906, by reason of their provisions giving compensation for improvement, as regards the holdings to which they apply, override some of the old common law doctrines as to waste. The act of 1900 provides (s. 2 [31) that where a tenant, who claims compensation for improvements, has wrongfully been guilty of waste, either voluntary or permissive, the landlord shall be entitled to set off the sums due to him in respect of such waste, and to have them assessed by arbitration in manner provided by the acts of 1900 and 1906. Under the act of 1906 the tenant is permitted to disregard the terms of his tenancy as to the mode of cropping on arable land, but if he exercises his statutory freedom of cropping in such a manner as to injure or deteriorate his holding, the landlord is entitled to recover damages for such injury, &c. (s. 3).
Remedies for Waste. - Various remedies for waste have been given to the reversioner at different periods in the history of English law. At common law only single damages seem to have been recoverable. This was altered by the legislature, and for some centuries waste was a criminal or quasi-criminal offence. Magna Carta enacted that a guardian committing waste of the lands in his custody should make amends and lose his office. The statute of Marlborough (1267) made a "fermor" (as above defined) committing waste liable to grievous amercement as well as to damages, and followed Magna Carta in forbidding waste by a guardian. The statute of Gloucester (1278)(1278) enacted that a writ of waste might be granted against a tenant for life or years or in courtesy or dower, and on being attainted of waste the tenant was to forfeit the land wasted and to pay thrice the amount of the waste. This statute was repealed by the Civil Procedure Acts Repeal Act 1879. In addition to the writ of waste the writ of estrepement (said to be a corruption of exstirpamentum, and to be connected with the French estropier, to lame) lay to prevent injury to an estate to which the title was disputed. This writ has long been obsolete. Numerous other statutes dealt with remedies for waste. The writ of waste was superseded at common law by the "mixed action" of waste (itself abolished by the Real Property Limitation Act 1833), and by the action of trespass on the case (see Tort, Trespass). The court of chancery also intervened by injunction to restrain equitable waste. At present proceedings may be taken either by action for damages, or by application for an injunction, or by both combined, and either in the king's bench or in the chancery divisions. By the Judicature Act 1873, s. 25 (8), the old jurisdiction to grant injunctions to prevent threatened waste is considerably enlarged. The Rules of the Supreme Court, Ord. xvi. r. 37, enable a representative action to be brought for the prevention of waste. In order to obtain damages or an injunction, substantial injury or danger of it must be proved. In England only the high court (unless by agreement of the parties) has jurisdiction in questions of waste, but in Ireland, where the law of waste is similar to English law, county courts and courts of summary jurisdiction have co-ordinate authority to a limited extent (cf. Land Act 1860, ss. 35-39).
The law of waste as it affects ecclesiastical benefices will be found under Dilapidations.
(4) "Waste of assets" or "devastavit" is a squandering and misapplication of the estate and effects of a deceased person by his executors or administrators, for which they are answerable out of their own pockets as far as they have or might have had assets of the deceased (see Executors And Administrators). Executors and administrators may now be sued in the county court for waste of assets (County Courts Act 1888, s. 95).
Scotland
In Scots law "waste" is not used as a technical term, but the respective rights of fiar and life-renter are much the same as in England. As a general rule, a life-renter has no right to cut timber, even though planted by himself. An exception is admitted in the case of coppice wood, which is cut at regular intervals and allowed to grow again from the roots. Grown timber is also available XXVIII. 1 2 a to the life-renter for the purpose of keeping up the estate or repairing buildings. Before making use of mature timber for estate purposes, the life-renter should give notice to the fiar. He is also entitled to the benefit of ordinary windfalls. Extraordinary windfalls are treated as grown timber. Life-renters by "constitution" (i.e. by grant from the proprietor) as opposed to life-renters by "reservation" (where the proprietor has reserved the life-rent to himself in conveying the fee to another) have, as a rule, no right to coals or minerals underground if they are not expressed in the grant or appear to have been intended by a testator to pass by his settlement, for they are partes soli. Where coals or minerals are expressed in the grant, and also in cases of life-rent by "reservation," the liferenter may work any mine which had been opened before the beginning of his right, provided he does not employ a greater number of miners, or bring up a greater quantity of minerals, than the unburdened proprietor did. All life-renters are entitled to such minerals as are required for domestic use and estate purposes.
British Possessions
French law is in force in Mauritius, and has been followed in substance in the civil codes of Quebec (art. 455) and St Lucia (art. 406). In most of the other colonies the rules of English law are followed, and in many of them there has been legislation on the lines of the English Settled Land Acts. In India the law as to waste is included to some extent in the Transfer of Property Act (No. IV. of 1882) and its amendments. Section 108 deals with the liabilities of lessees for waste, which may be varied by the terms of the lease or by local usage. The liabilities for waste of persons having under Hindu or Mahommedan law limited interests in reality depend in the main upon those laws and not on Indian statute law.
United States
" In the United States, especially in the Western states, many acts are held to be only in a natural and reasonable way of using and improving the land - clearing wild woods, for example - which in England, or even in the Eastern states, would be manifest waste" (Pollock, Torts, 7th ed., 345). Thus Virginia, North Carolina, Vermont and Tennessee have deviated in favour of the tenant from English rules, while Massachusetts has adhered to them (Ruling Cases, tit. "Waste," xxv. 380, American notes). In certain states, e.g. Minnesota, Oregon and Washington (ibid., p. 381), the action of waste is regulated by statute.
Europe
The French Civil Code provides (art. 591) that the usufructuary may cut timber in plantations that are laid out for cutting, and are cut at regular intervals, although he is bound to follow the example of former proprietors as to quantity and times. This provision is in force in Belgium (Civil Code, art. 591). Analogous provisions are to be found in the civil codes of Holland (art. 814), Spain (art. 485), Italy (art. 486), and cf. the German Civil Code, art. 1 036.
Authorities
English law: Bewes, Law of Waste; Fawcett, Law of Landlord and Tenant; Foa, Law of Landlord and Tenant; Woodfall, Law of Landlord and Tenant. Scots law: Erskine, Principles (Edinburgh). Irish law: Nolan and Kane, Statutes relating to the Law of Landlord and Tenant in Ireland (Dublin); Wylie, Judicature Acts (Dublin). American law: Bouvier, Law Dict. (Boston and London). Indian law: Shepherd and Brown, Indian Transfer of Property Act 1882. (A. W. R.)
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Chisholm, Hugh, General Editor. Entry for 'Waste'. 1911 Encyclopedia Britanica. https://www.studylight.org/encyclopedias/eng/bri/w/waste.html. 1910.
