Waste is the committing of any appreciable spoil or destruction to any corporeal hereditament, by a tenant during his particular estate therein, to the damage of the heir, or of him in reversion or remainder contrary to the obvious intention of the grantor.1) It is a spoil or destruction of houses, gardens, trees, or other corporeal hereditaments, to the dispersion of him that hath the remainder or reversion. Some act or omission prejudicial to inheritance is essential upon which to ground an action for waste. The injury to the inheritance must be either:
Before the fusion of law and equity by the Judicature Act, 1873, the divisions and sub-divisions of waste were as follows:
Legal waste is a term used to describe waste for which there lay a remedy at law.
Voluntary legal waste is a crime of commission, or it consists in the active doing of something.
For example, pulling down houses, pulling down wainscots, doors, windows, furnaces, and other such fixtures, causing timber trees to decay, stubbing up underwood, cutting down fruit trees in an orchard, cutting down trees which shelter the mansion; also opening new gravel pits, lime pits, clay pits, etc., or new mines of metal, coal, and the like ; also the conversion of old meadow-land into arable, or of arable into plantation, or the like, and even ploughing up a rabbit warren, or reclaiming deer in a park, or altering the character of a building.
Permissive legal waste is a matter of omission only, or it consists of a mere passive act, e. g., allowing a house to go to rack and ruin by reason of non-repair.
Equitable waste consisted in “malicious, extravagant, or humorsome” acts of destruction on the part of a tenant who was not impeachable for waste at law. Equitable waste is such as cannot be imputed to any fair acts of ownership, but is destructive of the property itself.3) It came to be called equitable, because if a tenant for life or other qualified owner was entitled to do all ordinary acts of ownership, there was at law no remedy to prevent an abuse of this right and so Courts of Equity had to interfere to prevent the unconscientious abuse of a legal right.4)
For example, where a tenant for life without impeachment of waste, pulls down or dismantles, without any proper purpose, the mansion house, or pulls down farm houses, or totally destroys a plantation, or fells ornamental timber; or, again, where the tenant in tail after possibility of issue extinct commits the like acts of waste; or again where a devisee in fee simple with an executory devise over on his death without leaving issue or any other event, does the like acts of waste; or again where a tenant in possession under a disputed title does the like acts of waste.
Indian case: Laying a drain in land and the incidental interference with the soil necessary for that purpose cannot be regarded as an ouster or destruction or an act of waste, and will not entitle a tenant-in-common of the land to maintain an action against another tenant-in-common.5)
But by the Judicature Act the jurisdiction of the Court to interfere to prevent equitable waste seems to be rested upon a new ground, namely, the presumption of absence of intention on the part of the settlor to confer a right to commit it.
Tenants for life, for years, at will, and at sufferance, are liable for waste. But in the absence of an express covenant or an obligation not to commit waste imposed by the instrument creating the estate, neither a tenant for life, nor a tenant at will, is liable for permissive waste. A tenant in fee simple is not liable for waste; nor is a tenant in tail, because he can at any time bar the entail, and make himself tenant in fee simple; but a tenant in tail, after possibility of issue extinct, is liable for equitable waste, inasmuch as he cannot bar the entail.
A tenant for life of leaseholds is not liable to the remainderman for permissive waste.
In India, actions for waste was generally by reversioners against Hindu widows. Action for waste must generally be brought by the person next entitled in remainder; and, if the latter has only a little estate, he is only entitled to such damages as are commensurate with the injury done to his life estate. It is no answer to an action of waste to say that the value of the property is enhanced by the changes made. The lessor is entitled to have the premises kept in the state in which he demised them.
In an action for waste the actual damage sustained may be recovered and an injunction obtained against the recurrence of the mischief. The right of injunction against waste may be lost by long delay and practical acquiescence. To obtain an injunction the plaintiff must prove that what the defendant is doing is prejudicial to the inheritance; if it improves the value of the land it is not waste.6)