Cases dealt

with in this chapter.

What is waste.

CHAPTER XXIII.

PROPRIETARY RIGHTS AS PROTECTED BY
INJUNCTION.

IT has already been pointed out that courts of equity from an early period have protected legal rights of property, either by granting an injunction to restrain their violation, or, where a legal right has been violated, by giving an account of the profits of the wrongdoer. It is not within the scope of this treatise to deal with legal rights of property as protected in equity, where courts of equity have merely followed the law, and where the only distinction between law and equity lies in the fact that equity prevents a threatened wrong while the law gives damages for a wrong which has been committed. The present chapter will be confined to those cases where equity, while in the origin of its jurisdiction it professed to protect a legal right, has materially modified the right protected-waste-or where it has protected rights. unknown to the common law but analogous to common law rights-covenants running with land in equity-or where there is a conflict of authority as to the principle on which the court acts in granting relief. There are two important groups of cases where the relief given is sometimes based on the jurisdiction to protect common law rights of property, and sometimes on the purely equitable jurisdiction to prevent breach of trust or fraud. These are injunctions to restrain the unauthorised use by B., of information, whether written or oral, given him by A., and injunctions to restrain the sale by B. of his goods as the goods of A.

WASTE.

Where land is held under a settlement, any dealing with the land by a limited owner, which is not warranted by his interest, is called waste. The law of waste, as now under

stood, is based upon the presumed intention of every settlor of land that persons taking limited interests under the settlement shall enjoy only the recurring profits of the land, while the substance is preserved for those who are entitled to the inheritance. From this principle three consequences follow (i.) Any act of a limited owner prejudicial to the inheritance is prima facie waste. (ii.) A settlor may show the intention of allowing a limited owner to subtract for his own benefit a portion of the inheritance. He may show it either expressly, by making a tenant for life unimpeachable of waste, or impliedly, by himself opening and working mines or quarries, or by cutting timber as part of the yearly profits of the land. (iii.) No act of a limited owner can be waste which is not prejudicial to the inheritance.

between

sive waste.

(i.) Waste is either voluntary or permissive. Voluntary Distinction waste has from the earliest times consisted chiefly in voluntary (1) pulling down houses or removing fixtures from them, and permis(2) felling trees known as timber, and (3) opening and working mines or quarries (b). It has been settled at law since 1800, that in order to maintain an action of waste, the damage done must be appreciable (c); and courts of equity, both before and after that time, refused to grant an injunction where the damage was trivial (d). Permissive waste chiefly consists in allowing the buildings on an estate to go out of repair (e). Whether an action lies at law for permissive waste cannot be regarded, even now, as settled (f). Whatever may be the legal liability, courts of equity have

In the

(4) Co. Lit. 53. Honywood v. Honywood (1874), 18 Eq. 306. seventeenth century any alteration in the course of husbandry was treated as waste. Thus, the ploughing of ancient meadow or pasture was constantly restrained in equity (Atkins v. Temple (1625), 1 Ch. R. 14).

(c) Governors of Harrow School v. Alderton, 2 B. & P. 86.

(d) Mollineux v. Powell (1730), 3 P. Wms. 268 n (F); Barry v. Barry (1820), 1 Jac. & W. 651; Doherty v. Allman (1878), 3 App. Cas. 709, pp. 722, 724.

(e) Co. Lit. 53 a.

(f) See 2 Inst. 145; 2 Wms. Saund. 251; Turner v. Buck (1714), 22 Vin. Abr. 523, pl. 9; Yellowly v. Gower (1855), 11 Ex. 274; In re Cartwright (1889), 41 Ch. D. 532; In re Purry and Hopkin, [1900] 1 Ch. 160.

"Without impeachment of waste."

always declined to restrain mere permissive waste (g), or to grant an account of dilapidations (h).

(ii.) A settlor may declare a tenant for life or years unimpeachable of waste. The effect of the declaration is not only to protect him from the penalties of waste, but to transfer to him the property in timber severed (i), and whether severed by his own act, by the act of God, or by a stranger (k). He has, however, no property in the timber while it stands (1). Thus, if he sells growing trees, they go to the remainderman or reversioner, notwithstanding the sale, unless they are severed in the tenant's lifetime (m); and if he sells an estate under a power, he is not entitled to the value of the standing timber (n). A tenant for life without impeachment of waste may open mines or quarries, and minerals or stone got by him or taken by a trespasser during his tenancy belong to him absolutely (o). At law, a tenant in fee with an executory devise over (p) and a tenant in tail, although the reversion is in the Crown, or he is restrained by statute from barring the entail (q), or he is tenant in tail after possibility of issue extinct (r), are not only dispunishable for waste, but entitled to retain, for their own benefit, the proceeds of waste committed by them.

(g) Lord Castlemain v. Lord Craven (1733), 22 Vin. Abr. 523, pl. 11 ; Wood v. Gaynon (1761), Amb. 395; Powys v. Blagrave (1854), Kay, 495; 4 D. M. & G. 448.

(h) Marquis of Lansdowne v. Marchioness of Lansdowne (1820). 2 Jac. & W. 522.

(i) Kekewich v. Marker (1851), 3 Maen. & G. 311, p. 327.

(k) Anon. (1729), Mos. 237; Pyne v. Dor (1785), 1 T. R. 55. Lord HARDWICKE, however, was of opinion that timber blown down, or cut by a stranger belonged to the owner of the first vested estate of inheritance (Aston v. Aston (1749), 1 Ves. sen., p. 399).

(1) Kekewich v. Marker, supra, p. 333.

(m) Turner v. Wright (1860), 2 De G. F. & J. 234, p. 246.

(n) Doran v. Wiltshire (1792), 3 Sw. 699; Wolf v. Hill (1806), 2 Sw. 149 n.

(0) In re Barrington (1886), 33 Ch. D. 523.

(p) Turner v. Wright (1860), Johns. 740; 2 De G. F. & J. 234. He may be restrained from waste by apt words in the instrument creating his estate (Blake v. Peters (1863), 1 D. J. & S. 345).

(q) Attorney-General v. Duke of Marlborough (1818), 3 Madd. 498. (r) Williams v. Williams (1810), 12 East, 209. Lord NOTTINGHAM was of opinion that tenant in tail after possibility, although not liable in an action of waste, had no property in timber cut. Hence, he restrained him from committing legal waste (Skelton v. Skelton (1677), 2 Sw. 170 n; Abrahall v. Bubb (1679), 2 Sw. 172 n).

A tenant for life although impeachable for waste is entitled Open mines and quarries. to go on working mines or quarries which have been opened and worked by an owner of the inheritance, and to retain the proceeds of the working (s). A mine or quarry may be open although the settlor has not worked it for commercial profit. It may open though the produce has not been carried to market and sold, but it would not be open if the produce has only been used for some definite and restricted purpose (t). When a mine or quarry is once open it does not necessarily constitute the opening of a new mine or a new quarry to sink a new pit on the same vein or to break ground in a new place on the same rock (u).

Timber estates are estates the trees on which are cut Timber estates. periodically when grown in woods with a view to ensure a succession of timber and to preserve the woods. It has been held by the Court of Appeal that where it is the custom to cut such trees periodically, a tenant for life, though impeachable for waste, is entitled both to cut and to retain for his own benefit the proceeds of the cutting. The doctrine is not confined to cases where the trees are made timber by local custom, e.g., beech-trees in Bucks, but extends to trees which are timber by the general law (x).

(iii.) The doctrine that no act can be waste which is not Meliorating prejudicial to the inheritance is essentially an equitable waste. doctrine. "If the waste be of a trivial nature," said Lord KING in 1730 (y), “and à fortiori, if it be meliorating waste,

(8) Co. Lit. 54 b. Countess of Plymouth v. Archer (1782), 1 B. C. C. 159; Viner v. Vaughan (1840), 2 B. 466; Bagot v. Bagot (1863), 32 B. 509; Earl Cowley v. Wellesley (1866), 35 B. 639; Elias v. Snowdon Slate Quarries Co. (1879), 4 App. Cas. 454; Campbell v. Wardlaw (1883), 8 App. Cas. 641; Greville-Nugent v. Mackenzie, [1900] A. C. 83. The Settled Land Act, 1882, ss. 6-11, enables tenants for life to make mining leases, and gives a tenant for life one-fourth of the rent where he is impeachable for waste, and three-fourths where he is unimpeachable. A tenant for life, though impeachable, who leases a mine opened by his settlor, is entitled to three-fourths of the rent (In re Chaytor, [1900] 2 Ch. 804). (t) Elias v. Snowdon Slate Quarries Co., supra.

(u) Clavering v. Clavering (1726), 2 P. Wms. 388; Spencer v. Scurr (1862), 31 B. 334; Elias v. Snowdon Slate Quarries Co., supra. also Chaytor v. Trotter, Times, 20th June, 1902.

(x) Dashwood v. Magniac, [1891] 3 Ch. 306.

See

(y) Mollineux v. Powell, 3 P. Wms. 268 n (F.). See also Duke of St. Alban's v. Skipwith (1845), 8 B. 354; Jones v. Chappell (1875), 20 Eq. 539; Doherty v. Allman (1878), 3 App. Cas. 709; Meux v. Cobley, [1892] 2 Ch. 253.

Remedies for waste at law.

as by building on the premises, the court will not enjoin." An act which under certain circumstances, or at one period is destructive of an estate, may, under other circumstances or at another period, be beneficial to it. Thus, the erection of new buildings or the enlargement of existing ones may, under some circumstances, impose a new burden upon settled land, and under others simply increase the rental. The change from one course of husbandry to another which, in the seventeenth century, perhaps tended to destroy the evidence of title to the land, has ceased to have that effect since the existence of government surveys (z). In the seventeenth century, the common law judges treated all acts which had been previously judged to be waste not as mere illustrations of a general principle, but as necessarily waste, even though they improved the inheritance instead of injuring it (a). The common law gradually adopted the equitable view. In 1831 it was held that the burden lay upon the defendant of showing that acts which had been adjudged to be waste and which were, therefore, primâ facie waste, such as ploughing ancient meadow, were not waste (b). In 1833 Lord DENMAN held that the burden lay on the plaintiff of proving that acts done by the defendants were waste, and that no act could be waste unless it injured the inheritance either by diminishing the value of the estate, or by increasing the burden upon it, or by impairing the evidence of title (c).

Where waste was committed, two remedies were available at law (d). 1. One was an action of waste, in which

(z) See Doherty v. Allman, supra, pp. 725, 735.

(a) Co. Lit. 53 a. City of London v. Greyme (1607), Cro. Jac. 181; Cole v. Greene (1672), 1 Lev. 309; S. C., Cole v. Forth, 1 Mod. 94. (b) Simmons v. Norton, 7 Bing. 640.

(e) Doe d. Grubb v. Earl of Burlington, 5 B. & Ad. 507, p. 517. In West Ham Central Charity Board v. East London Waterworks Co., [1900] 1 Ch. 624. BUCKLEY, J., on the authority of Lord Darcy v. Askwith (1617), Hob. 214, restrained the defendants from bringing rubbish, earth, or material upon marsh land, of which the plaintiffs were reversioners. His lordship laid down generally that an act which altered the nature of the thing demised was waste. This is wrong. He also pointed out that there were various contingencies in which the acts complained of would injure the reversion, e.g., if a factory owner wished to deposit surplus material on the land, or the landowner to erect cottages upon it.

(d) The writ of estrepement, which perhaps formed the model for the equitable remedy by injunction, became obsolete at an early time.