Waste can only be committed by a person rightfully in possession of the property. Under the early common law only tenants of legal estates as distinguished from tenants of conventional estates, were liable for waste.28 But the common law was changed by the statute of Marlbridge (52 Hen. Ill, c. 23), which provides that "fermers, during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of anything belonging to the tenements that they have to a ferm, without special license had by writing of covenant, making mention that they may do it; which thing, if they do, and thereof be convict, they shall yield full damage and shall be punished by amerciament grievously." And by the statute of Gloucester (6 Edw. I, c. 5), it was enacted that "a man from henceforth shall have a writ of waste in the chancery against him that holdeth by law of England, or otherwise for term of life or term of years, or a woman in dower. And he which shall be attainted of waste, shall lose the thing that he has wasted, and moreover, shall recompense thrice so much as the waste shall be taxed at." In the United States these statutes are either considered a part of the common law, so far as applicable to the different conditions,29 or they have been expressly enacted in a modified form.30,31

22 Bass vs. Metropolitan West Side Elevated R. Co., 82 Fed. Rep., 857; 53 U. S. App., 543.

23 Bonnett vs. Saddler, 14 Ves. Jr., 526; Smyth vs. Carter, 18 Beav., 78.

24 Ward's Case, 4 Leon, 241.

25 Pynchon vs. Stearns, 11 Met.

(Mass.), 304; 45 Am. Dec., 207. 26 Winship vs. Pitta, 3 Paige (N.

Y.). 259. 27 Sarles vs. Sarles, 3 Sandf., Ch.

(N. Y.), 607. 28 4 Coke's Inst., 299; London vs.

Waste can never be committed by mere trespassers. In Lander vs. Hall,32 the Court held that at common law the relation of tendency was what distinguished waste from trespass to the realty; and that the statute of Wisconsin, which gives to the holder of a certificate of the sale of lands for taxes a right to recover damages from any one who commits waste on said lands, does not apply to cases of waste committed by a mere trespasser, but applies only to cases where the action of waste would lie at the common law.

Webb, 1 P. Wms., 527. Under this rule only three classes of tenants were liable for waste. A guardian in Chivalry, a tenant in dower, and a tenant by the courtesy. 29 Parrott vs. Barney Deady (U. S.), 405; 18 Fed. Cas. No. 10, 773a; Parker vs. Chambras, 12

Ga., 235. 30 Newbold vs. Brown, 44 N. J. L.,

266. 31+ See American and English Ency. of Law, Vol. XXX, p. 259. 32 69 Wis., 326.

The action of trespass does not lie for waste committed upon land by persons actually in possession, though the possession be unlawful. The remedy is an action of unlawful detainer, in which the party lawfully entitled may recover as well for the waste and injury committed, as the possession.33

Estates are sometimes granted to a person "without impeachment of waste." Under such a grant, the tenant is not liable for permissive waste.34 It was early decided, however, that the tenant under such a grant would be liable for wanton or malicious waste. The leading case on this point is the case known as the Raby's Castle35 Case, reported as follows: "Lord Bernard was tenant for life, without impeachment of waste, and this bill was brought against him by those in remainder, for an injunction to stay his committing of waste and by the proofs in the cause; it appeared, that he had almost totally defaced the mansion-house, by pulling down a great part, and was going on entirely to ruin it, whereupon the court not only granted an injunction against him, to stay his committing further waste, but also ordered a commission to issue six commissioners whereof he to have notice, and to appoint three on his part, or, in default thereof, the six commissioners to be named ex parte, to take a view, and to make a report of the waste committed; and that he should be obliged to rebuild, and put it in the same plight and condition it was at the time of his entry thereon, and it was said that the like injunction had frequently been granted in his court; and that the clauses of, without impeachment of waste, never were extended to allow the very destruction of the estate itself, but only to excuse from permissive waste; and therefore, such a clause would not give leave to fell and cut down the trees which were for the ornament or shelter of a house, much less to destroy or demolish the house, and so it was ruled in my Lord Nottingham's time, 2 Chan. Cases, 32 ed."

33 Hawkins vs. Roby, 77 Mo., 140. 34 Powys vs. Blagrave, 4 De. G. M.

& G., 448; Cannon vs. Barry,

59 Miss., 289.

35 Vane vs. Lord Barnod, reported in Precedents in Chancery, 454,

Formerly in England, a co-tenant or a tenant in common could not be held guilty of waste, but this rule was changed by the statute of Westminster II.36 In the United States co-tenants are liable for waste, either by statute,37 or independently of statutes.38