Code Napoléon (Code Civ. 591) has provided that the usufructuary may cut timber in plantations that are laid out for cutting, and are cut at regular intervals, although the usufructuary is bound to follow the example of former proprietors as to quantity and times. . . The instance to which the legal principle is now for the first time adapted by this Court may be new, but the principle is old and sound; and the English law is expansive, and will apply old principles, if need requires it, to new contingencies. Just as, in America, the law of watercourses and of waste has modified itself to suit the circumstances of enormous rivers and wide tracts of uncultivated forest, so the English law accommodates itself to new forms of labour and new necessities of culture; it favours the profitable holding of land. In a case like the present, good sense borrows accordingly, as it seems to me, the doctrine which has hitherto found its most remarkable illustration in the instance of the open mine, and applies it to the more novel case of a timber plantation which is cultivated for periodical croppings, and which forms a substantial item of yearly revenue to the owner of the property." In Pardoe v. Pardoe (1900), 82 L. T. 547, a testator who died in 1884 devised an estate to his wife (the defendant) for life, with remainder to X. in fee, and appointed the wife sole executrix, with full and absolute power over all his property during her life. The defendant had cut and sold timber, including oak, ash, and elm of twenty years old and upwards. The action was brought by the person entitled in remainder, claiming a declaration that this constituted waste, and for an injunction. It was held by STIRLING, J., that the words "with full power," &c., merely conferred large powers of management, but did not render the defendant dispunishable for waste, and that the acts of the defendant did not fall within the exceptions in Honywood v. Honywood and Dashwood v. Magniac. The plaintiff was accordingly entitled to a declaration. In the case of In re Chaytor, 1900, 2 Ch. 804, 69 L. J. Ch. 837, the testator, who died in 1897, had created a tenancy for life, without any declaration as to waste. The tenant for life, under this will, had made a lease of open mines. STIRLING, J., held that this tenant for life was not, in respect of such mines, "impeachable for waste in respect of minerals" within the meaning of sect. 11 of the Settled Land Act, 1882 (see p. 380, post). Upon the subject of what has been called "meliorating waste," a leading case is Doherty v. Allman (H. L. 1878), 3 App. Cas. 709, 39 L. T. 129, 26 W. R. 513. It is there decided that, where the act charged to be waste is clearly beneficial to the estate, such as the pulling down of ruinous buildings, and employing the site for erecting buildings of a different character, which renders the estate more valuable, a Court of equity will refuse to interfere by injunction. As between landlord and tenant, the obligation with respect to waste has been briefly stated by Lord BLACKBURN as follows: "In the absence of express terms, the law implies, from the relation of landlord and tenant, that it is the duty of the tenant to do or to leave undone some things, and a promise is implied from the mere relation of landlord and tenant, on which an action lies for a breach of that duty. The most important of these, in the case of an agricultural holding, are, not to commit waste, and to manage the property in a husbandlike manner." Westropp v. Elligett (H. L. 1884), 9 App. Cas. 815, 823. See also "Landlord and Tenant," Nos. 3, 4, and notes, 15 R. C. 307 et seq. Closely allied to the questions between tenant for life and remainderman, are those which may arise between a devisee of land and the executor. Of these an important example is furnished by the case of In re Ainslie, Swinburn v. Ainslie (C. A. 1885), 30 Ch. D. 485, 55 L. J. Ch. 615, 53 L. T. 645, 33 W. R. 910. At the time of the testator's death, a great number of trees in plantations of larch on the devised land had been blown down by extraordinary gales. It was held by PEARSON, J., that, as between the devisees and the executors, the trees which had been blown down to such an extent that they could not grow as trees usually grow, were severed and belong to the executors, and that the trees which were merely lifted, but would have to be cut for the proper cultivation of the plantation, belonged to the deviBut the Court of Appeal, applying the maxim, "Quicquid plantatur solo, solo cedit," held the principle to be that, if a tree was attached to the soil it was real estate, and if severed, personalty; that the life and manner of growth of any particular tree was no test of its attachment to the soil, and that the degree of attachment or severance was a question of fact in the case of each particular tree. sees. The following enactments (taking effect from the 31st December, 1882) of the Settled Land Act, 1882 (45 & 46 Vict. c. 38), relate to the power of a tenant for life in respect of minerals and timber: Section 6. "A tenant for life may lease the settled land, or any part thereof, or any easement, right, or privilege of any kind, over or in relation to the same, for any purpose whatever, whether involving waste or not, for any term not exceeding: 66 "(i) In case of a building lease, ninety-nine years; Various conditions relating to the leases granted under the above power are laid down by sects. 7-11 of the Settled Land Act, 1882, and sects. 7, 8 of the Settled Land Act, 1890. Sect. 11 of the Settled Land Act, 1882, is as follows: : Section 11. "Under a mining lease, whether the mines or minerals leased are already opened or in work or not, unless a contrary intention is expressed in the settlement, there shall be from time to time set aside, as capital money arising under this Act, part of the rent as follows, namely, where the tenant for life is impeachable for waste in respect of minerals, three-fourth parts of the rent, and otherwise onefourth part thereof, and in every such case the residue of the rent shall go as rents and profits." Section 35. "Where a tenant for life is impeachable for waste in respect of timber, and there is on the settled land timber ripe and fit for cutting, the tenant for life, on obtaining the consent of the trustees of the settlement or an order of the Court, may cut and sell that timber, or any part thereof. 66 (2) Three-fourth parts of the net proceeds of the sale shall be set aside as and be capital money arising under this Act, and the other fourth part shall go as rents and profits." AMERICAN NOTES. In the United States, the law of waste committed by a tenant for life often shows a variation from the English law. Chancellor KENT says: "If the land be wholly wild and uncultivated, it has been held that the tenant may clear part of it for the purpose of cultivation; but he must leave wood and timber sufficient for the permanent use of the farm. And it is a question of fact for the jury, what extent of wood may be cut down in such cases without exposing the party to the charge of waste. The American doctrine on the subject of waste is somewhat varied from the English law, and is more enlarged and better accommodated to the circumstances of a new and growing country." While, he says, the inclination of the Supreme Court in Massachusetts seemed otherwise, and in favor of the strict English rule, yet in Virginia it is admitted that the law of waste is varied from that of England, while in North Carolina it has been held not to be waste to clear tillable land for the necessary support of the tenant's family, though the timber is destroyed in clearing. 4 Kent's Commentaries (14th ed.), 76. And to these latter states may be added Vermont and Tennessee as having passed directly upon the question of adhering to the English rule. See Conner v. Shepherd, 15 Massachusetts, 164; White v. Cutler, 17 Pickering (Mass.), 248; Pynchon v. Stearns, 11 Metcalf (Mass.), 304; Clark v. Holden, 7 Gray (Mass.), 8, 10; Noyes v. Stone, 163 Massachusetts, 490; Loomis v. Wilbur, 5 Mason (U. S.), 13; Findlay v. Smith, 6 Munford (Va.), 134; Crouch v. Puryear, 1 Randolph (Va.), 258; Parkins v. Coxe, 2 Haywood (N. C.), 339; Owen v. Hyde, 6 Yerger (Tenn.), 334; Walker v. Fox, 85 Tennessee, 154; Keeler v. Eastman, 11 Vermont, 293; Hickman v. Irvine, 3 Dana (Ky.), 121, 123. In New York, the rule has more recently been declared to be that the felling of timber by a tenant for life for the purpose of sale, to the injury of the reversion, is waste, and an action lies by the latter immediately to recover the damages to the freehold; that it is not a defence to such action that the tenant acted in good faith, or under a claim of right, or that he was in possession claiming title in fee to the land upon which the waste was committed; and that while the reversioner cannot bring trespass or ejectment against the tenant so long as the tenancy continues, he is not debarred from his remedy at law or in equity for waste, because the proceeding may involve the determination of a disputed title. Robinson v. Kime, 70 New York, 147, 151; McGregor v. Brown, 10 id. 114; Agate v. Lowenbein, 57 id. 604, 614; Jackson v. Brownson, 7 Johnson (N. Y.), 227; Livingston v. Haywood, 11 id. 429; Livingston v. Reynolds, 26 Wendell (N. Y.), 115; Gardiner v. Dering, 1 Paige (N. Y.), 573. In Sarles v. Sarles, 3 Sandford's Chancery (N. Y.), 601, directions were given in a decree for an account of waste committed by a tenant for life and her under-tenant, in respect of timber, dilapidations, undue tillage, and withdrawing manure. In Pennsylvania, a life tenant may cut timber for the purpose of repairing the premises, or for other purposes required in the reasonable cultivation of the estate, or in the process of clearing the land for cultivation, so long as the part so cleared does not cause the proportion of cleared land to timber land, upon the whole tract, to exceed that which is reasonable and proper for purposes of good husbandry. Hastings v. Crunckleton, 3 Yeates (Penn.), 261; M'Cullough v. Irvine, 13 Pennsylvania State, 438; Sayers v. Hoskinson, 110 id. 473. If the tenant for life exceeds his legal rights in the cutting of timber, the measure of damages is not the value of the timber after its delivery at a distant mill, or after it is manufactured into a finished product, but it is the injury done to the remainderman's interest in the land. M'Cullough v. Irvine, supra; Yocum v. Zahner, 162 Pennsylvania State, 468. And even when real estate is directed, after the falling in of a life estate, to be converted for the purpose of distribution, it will be treated as personalty only for that purpose, but will remain unchanged as to waste, and as to all other purposes beyond what that particular purpose requires. Worsley's Estate, 36 Weekly Notes of Cases (Penn.), 247; Rudy's Estate, 185 Pennsylvania State, 359; Morris v. Knight, 14 Pennsylvania Superior Court, 324, 332. In certain of the States, the action of waste is regulated by statute, providing, as, e. g., in Minnesota, that in this action "there may be judgment for treble damages, forfeitures of the estate of the party offending, and eviction from the property;" and this statute, under other clauses thereof, has there been held to enable the reversioner to maintain the action against an assignee for life or for years, of the life-estate. 2 Minnesota Statutes (1894), s. 5882; Curtiss v. Livingston, 36 Minnesota, 380. The statutes of the states of Oregon and Washington are alike, containing substantially the same provision as that just quoted, and providing further: "But judgment of forfeiture and eviction shall be given in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion is determined in the action to be equal to the value of the tenant's estate or unexpired term, or to have been done or suffered in malice." 1 Hill's Annotated Laws of Oregon (2d ed. 1892), s. 337; 2 Ballinger's Annotated Codes and Statutes of Washington (1897), s. 5655. The General Laws of Rhode Island (1896), c. 268, providing that a tenant for life or for years who commits or suffers waste "shall forfeit his estate in the place so wasted, and double the amouut of the waste so done or suffered, to be recovered in an action of waste," is cumulative, and does not take away the remedy at common law. Thackeray v. Eldigan, 21 Rhode Island, 481. See Adams v. Palmer, 6 Gray (Mass.), 336, 338. The position of a mortgagor in possession of the mortgaged estate, wherever he is held in equity to be the owner, is not analogous to that of a tenant for life: he may commit waste if he does not diminish the security and render it insufficient; and the damages recoverable against him are limited to the diminution in the value of the mortgage security. Tate v. Field, 57 New Jersey Equity, 632. But a mortgagee in possession may be liable for waste. See 3 Pomeroy's Equity Jurisprudence (2d ed.), s. 1216, note. As to the equitable remedy, the essential character of a bill to stay waste is that the person offending is in rightful possession, and the plaintiff's title must be usually undisputed, although relief is sometimes granted on special grounds, such as to quiet possession, to prevent multiplicity of suits or irreparable injury, or when the defendant is insolvent. Walker v. Fox, 85 Tennessee, 154; 3 Pomeroy's Equity Jurisprudence (2d ed.), s. 1348; 2 Story's Equity Jurisprudence (13th ed.), ss. 909-919. An action for waste, under a statute allowing it to be brought by one having the next immediate estate of inheritance, cannot be maintained by one having only a contingent remainder. Hunt v. Hall, 37 Maine, 363. But in equity a contingent remainder is an estate that will be protected against injury or waste. Peterson v. Ferrell, 127 North Carolina, 169. WATER. [And see Nos. 5 and 6 of " ACCIDENT," 1 R. C. 235 et seq.; No. 16 of "ACTION," 1 R. C. 729 et seq.; Nos. 10-13 of "EASEMENT," and notes 10 R. C. 179-245; "RIVER - RIPARIAN OWNER," 23 R. C. 141 et seq.] No. 1. MASON v. HILL. (K. B. 1833.) No. 2. ROBERTS v. GWYRFAI DISTRICT COUNCIL. (C. A. 1899.) RULE. A RIPARIAN proprietor on the banks of a natural stream, though entitled for his own purposes as owner of the land, to the reasonable use of the water of the stream, is not en |