To constitute waste, the act must be wrongful,9 and there must be an appreciable 10 injury to the inheritance in some form.11 In an action by the owner of the fee, against the owner of the life estate to enjoin the commission of waste by cutting timber, the court instructed the jury as follows: Waste is whatever does a lasting damage to the inheritance, and tends to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance. So what might be for the good and convenience of the tenant for life by clearing parts of the land, might, at the same time, be to the permanent loss of the owner in fee simple, and consequently waste. If the jury believe that the contemplated cutting, if done, would lessen the value of the fee after the death of the life tenant, they should find for the plaintiff; if not, then for the defendant. It was held that the instruction was a correct enunciation of the law on the subject of waste, as recognized in the United States.12

5 For explanations of the different kinds of estates, see Real Property, Vol. VI, Sub. 17. 6 American and English Ency. of Law, Vol. XXX, p. 236. Alexander vs. Fisher, 7 Ala., 514; Price vs. Ward, 25 Nev., 203; Clemence vs. Steere, 1 R. I., 272; 53 Am. Dec, 621; Cooley vs. Stringham, 4 Utah, 107.

7 For distinction between legal waste and equitable waste, subject of Equity Jurisprudence, Vol. VII, Sub. 20.

8 American and English Ency. of Law, Vol. XXX, p. 236-7.

9 McDaniel vs. Callon, 75 Ala., 329.

10 Sheppard vs. Sheppard, 2 Hayn.

(3 N. C), p. 382; Holderness vs. Lang, 11 Ont., 1.

11 Pynchon vs. Stearns, 11 Met.

(Mass.), 304; 45 Am. Dec, 207; Bandlow vs. Thieme, 53 Wis., 60.

In order that a mortgagee may maintain an action against a mortgagor in possession for acts of waste committed by him, it must be made to appear that the act complained of has so affected the value of the property that the plaintiff has suffered a damage in reference to the security.13

Where a co-tenant by cutting down and clearing woodland, beyond his interest has greatly injured the interest of his co-tenant, he would be liable for waste. And so if the tenant for life cuts down more woodland than is necessary for the enjoyment of his estate, and has injured the remainder, he would be guilty of waste and liable to account. It is the ultimate injury done to the rights of the plaintiffs, as co-tenants or in remainder, which gives them the right to complain. For, if the clearing of the land had improved its value to the co-tenant or remainder-man, it could not be pretended that still the co-tenant, or tenant for life, would be liable for waste.14

12 Dawson vs. Coffman, 28 Ind., 220. 13 Smither vs. Trio County (Tex.

Civ. App., 1899), 50 S. W. Rep., 958.

In England, cutting down trees always constitutes waste, but in this country it may improve the value of the property. On this point the court said, in King vs. Miller:15 "While, in its essential elements, waste is the same in this country and in England, being a spoil or destruction in houses, trees, and the like, to the permanent injury of the inheritance, yet, in respect to acts which constitute waste, the rule that governs in a new and opening land, covered largely with primeval growth, must be very different. Where the proportions of arable and woodland are adjusted to give the greatest value to the farm in its present condition, a conversion of one kind into another may be in itself a waste committed, while here the clearing of the forest growths, and fitting the virgin soil which it covers for cultivation, is ordinarily an improvement most valuable to the property, and is not, nor can it be, injurious to the succeeding estate in fee."

The right to take of wood for estories or firewood is recognized even in England.16

Opened mines may be worked by the tenant,17 but it is waste to open new mines 18 or quarries.19

The destruction of buildings is waste,20 though the tenant intends to replace such buildings with others as good or even better. The reason for this rule is stated in Smyth vs. Carter,21 as follows: "I entertain no doubt that this court will restrain a tenant from pulling down a house and building another which the landlord dislikes. It is not sufficient to show that the house proposed to be built is a better one; and the fact of the defendant's showing that the landlord does not know his own interest, will not affect the judgment of the court in any respect whatever. The landlord has a right to exercise his own judgment and caprice, whether there shall be any change; and if he objects, the court will not allow a tenant to pull down one house and build another in its place."

14 Johnson vs. Johnson, 2 Hill, Eq.

(S. C), 277; 29 Am. Dec, 72. 15 99 N. C, 683. 16 3 Coke vs. Littleton, 239; Lee vs.

Akton, 1 Ves. Jr., 78.

17 Coke vs. Littleton, 54b; Moore vs. Rollins, 45 Me., 493; Reed vs. Reed, 16 N. J. Eq., 248; Neel vs. Neel, 19 Pa., 324.

18 Harlow vs. Lake Superior Iron Co., 36 Mich., 105; Childs vs.

Kansas City, etc., R. Co., 117

Mo., 414; United States vs.

Gear, 3 Howard, 120. 19 Cosgruff vs. Dewey, 164 N. Y.,

1; 79 Am. St. Rep., 620; 21

N. Y. App. Dec, 129. 20 United States vs. Bostwick, 94

U. S., 53; McCollough Irvine,

13 Pa. St., 438. 21 18 Bean., 78.

The repair of one portion of a building does not justify the removal or destruction of another part,22 and a material alteration of a building will constitute waste.23 Formerly, the erection of new buildings was waste,24 but the law on this point is different at the present time.25 In recent cases it has been held that it was not waste for the tenant for years of a house and lot in the city of New York to erect a livery stable upon the land,26 and that where a tenant for life erected a new smokehouse in place of one gone to decay, from materials obtained on the homestead, it was not waste.27