Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
THE fourth species of injury, that may be offered to one’s real property, is by waste, or destruction in lands tenements. What shall be called waste was considered at large in a former volume,1 as it was a means of forfeiture, and thereby of transferring the property of real estates. I shall therefore here only beg lease to remind the student, that waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demolishing not the temporary profits only, but the very substance of the thing; thereby rendering it wild and desolate; which the common law expresses very significantly by the word vastum: and that this vastum, or waste, is either voluntary or permissive; the one by actual and designed demolition of the lands, woods, and houses; the other arising form mere negligence, and want of sufficient care in reparations, fences, and the like. So that my only business is at present to show, to whom this waste is an injury; and of course who is entitled to any, and what, remedy by action.
I. THE persons, who may be injured by waste, are such as have some interest in the estate wasted: for if a man be the absolute tenant in fee-simple, without any encumbrance or charge on the premises, he may commit whatever waste his own indiscretion may prompt to, without being impeachable or accountable for it to any one. And, though his heir is sure to be the sufferer, yet nemo est haeres viventis: no man is certain of succeeding him, as well on account of the uncertainty which shall die first, as also because he has it in his own power to constitute what heir he pleases, according to the civil notion, so an haeres natus and an haeres factus; or, in the more accurate phraseology of our English law, he may aliene or devise his estate to whomever he thinks proper, and by such alienation or devise may disinherit his at law. Into whose hands soever therefore the estate wasted comes, after a tenant in fee-simple, though the waste in undoubtedly damnum, it is absque injuria.
ONE species of interest, which is injured by waste, is that of a person who has a right of common in the place wasted; especially if it be common of estovers, or a right of cutting and carrying away wood for house-bote, plow-bote, etc. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, amounting to no less than a disseizin of his common of estovers, if he chooses so to consider it; for which he has his remedy to recover possession and damages by assize, if entitled to a freehold in such common: but if he has only a chattel interest, then he can only recover damages by an action on the case for this waste and destruction of the woods, out of which his estovers were to issue.2
BUT the most usual and important interest, that is hurt by this commission of waste, is that of him who has the remainder or reversion of the inheritance, after a particular estate for life or years in being. Here, if the particular tenant, (be it the tenant in dower or by curtesy, who was answerable for waste at the common law,3 or the lessee for life or years, who was first made liable by the statutes of Marlbridge4 and of Gloucester5) if the particular tenant, I say, commits or suffers any waste, it is a manifest injury to him that has the inheritance, as it tends to mangle and dismember it of its most desirable incidents and ornaments, among which timber and houses may justly be reckoned the principal. To him therefore in remainder or reversion the law has given a remedy; that is, to him to whom the inheritance appertains in expectancy.6 For he, who has the remainder for life only, is not entitled to sue for waste; since his interest may never perhaps come into possession, and then has suffered no injury. Yet a parson, vicar, arch-deacon, prebendary, and the like, who are seized in right of their churches of any remainder or reversion, may have an action of waste; for they, in many cases, have for the benefit of the church and of the successor a fee-simple qualified: and yet, as they are not seized in their own right, the writ of waste shall not say, ad exhaeredationem ipsius, as for other tenants in fee-simple; but ad exhaeredationem ecclesiae, in whose right the fee-simple is held.7
II. THE redress for this injury of waste is of two kinds, preventive, and corrective: the former of which is by writ of estrepement, the latter by that of waste.
1. ESTREPEMENT is an old French word, signifying the same as waste or extirpation: and the writ of estrepement lay at the common law, after judgment obtained in any action real,8 and before possession was delivered by to sheriff; stop any waste which the vanquished party might be tempted to commit in lands, which were determined to be no longer his. But, as in some cases the defendant may be justly apprehensive, that the tenant may make waste or estrepement pending the suit, well knowing the weakness of his title, therefore the statute of Gloucester9 gave another writ of estrepement, pendente placito, commanding the sheriff firmly to inhibit the tenant “ne faciat vastum vel estrepamentum pendente placito dicto indiscusso.”10 And, by virtue of either of these writs the sheriff may resist them that do, or offer to do, waste; and, if otherwise he cannot prevent them, he may lawfully imprison the wasters, or make a warrant to others to imprison them: or, if necessity require, he may take the posse comitatus to his assistance. So odious in the sight of the law is waste and destruction.11 In suing out these two writs this difference was formerly observed; that in actions merely possessory, where no damages are recovered, a writ of estrepement might be had at any time pendente lite , nay even at the time of suing out the original writ, or first process: but, in an action where damages were recovered, the defendant could only have a writ of estrepement, if he was apprehensive of waste after verdict had;12 for, with regard to waste done before the verdict was given, it was presumed the jury would consider that in assessing the quantum of damages. But now it seems to be held, by an equitable construction of the statute of Gloucester, and in advancement of the remedy, that a writ of estrepement, to prevent waste, may be had in every stage, as well of such actions wherein damages are recovered, as
so those wherein only possession is had of the lands: for peradventure, says the law, the tenant may not be of ability to satisfy the demandant his full damages.13 And therefore now, in an action of waste itself, to recover the place wasted and also damages, a writ of estrepement will lie, as well before as after judgment. For the plaintiff cannot recover damages for more waste than is contained in his original complaint; neither is he at liberty to assign or give in evidence any waste made after the suing out of the writ: it is therefore reasonable that he should have this writ of preventive justice, since he in his present suit debarred of any farther remedial.14 If a writ of estrepement, forbidding waste, directed and delivered to the tenant, as it may be, and he afterwards proceeds to commit waste, and action may be carried on upon the foundation of this writ; wherein the only plea of the tenant can be, non fecit vastum contra prohibitionem: and, if upon verdict it be found that he did, the plaintiff may recover costs and damages;15 or the party may proceed to punish the defendant for the contempt: for if, after the writ directed and delivered to the tenant or his servants, they proceed to commit waste, the court will imprison them for this contempt of the writ.16 But not so, if it be directed to the sheriff, for then it is incumbent upon him to prevent the estrepement absolutely, even by raising the posse comitatus, if it can be done no other way.
BESIDES this preventive redress at common law, the courts of equity, upon bill exhibited therein, complaining of waste and destruction, will grant an injunction or order to stay waste, until the defendant shall have put in his answer, and the court shall thereupon make farther order. Which is now become the most usual way of preventing waste.
2. A WRIT of waste is also an action, partly founded upon the common law and partly upon the statute of Gloucester;17 and may be brought by him who has the immediate estate of inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by the curtesy, or tenant for years. This action is also maintainable in pursuance18 of statute Westm.2.by one tenant in common of the inheritance against another, who makes waste in the estate held in common. The equity of which statute extends to joint-tenant, but not to coparceners: because by the old law coparceners might make partition, whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint-tenants could not; and therefore the statute gave them this remedy, compelling the defendant either to make partition, and take the place wasted to his own share, or to give security not to commit any farther waste.19 But these tenants in common and joint-tenants not liable to the penalties of the statute of Gloucester, which extends only to such as have life-estates, and do waste to the prejudice of the inheritance. The waste however must be something considerable; for if it amount only to twelve pence, or some such petty sum, the plaintiff shall not recover in an action of waste: nam de minimis non curat lex.20
THIS action of waste is a mixed; partly real, so far as it recovers land, and partly personal, so far as it recovers damages. For it is brought for both those purposes; and, if the waste be proved, the plaintiff shall recover the thing or place waste, and also treble damages by the statute of Gloucester. The writ of waste calls upon the tenant to appear and show cause, why he has committed waste and destruction in the place named, ad exhaeredationem, to the disinheritance, of the plaintiff.21 And if the defendant makes default, or does not appear at the day assigned him, then the sheriff is to take with him a jury of twelve men, go in person to the place alleged to be wasted, and there inquire of the waste done, and the damages; and make a return or report of the same to the court, upon which report the judgment is founded.22 For the law will not suffer so heavy a judgment, as the forfeiture and treble damages, to be passed upon a mere default, without full assurance that the fact is according as it is stated in the writ. But if the defendant appears to the writ, and afterwards suffers judgment to go against him by default, or upon a nihil dicit, (when he makes no answer, puts in no plea, in defense) this amounts to a confession of the waste; since, having once appeared, he cannot now pretend ignorance of the charge. Now therefore the sheriff shall not go to the place to inquire of the fact, whether any waste has, or has not, been committed; for this is already ascertained by the silent confession of the defendant: but he shall only, as in defaults upon other actions, make inquiry of the quantum of damages.23 The defendant, on the trial, may give in evidence any thing that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king’s enemies, or other inevitable accident.24 But it is no defense to say, that a stranger did the waste, for against him the plaintiff has no remedy: though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and
shall recover the damages he has suffered in consequence of such unlawful act.25
WHEN the waste and damages are thus ascertained, either by confession, verdict, or inquiry of the sheriff, judgment is given, in pursuance of the statute of Gloucester, c. 5. that the plaintiff shall recover the place wasted; for which he has immediately a writ of seizin, provided the particular estate be still subsisting, (for, if be expired, there can be no forfeiture of the land) and also that the plaintiff shall recover treble the damages assessed by the jury; which he must obtain in the same manner as all other damages, in actions personal and mixed, are obtained, whether the particular estate be expired, or still in being.
1. See Vol. II. ch. 18.
2. F.N.B. 59. 9 Rep. 112.
3. 2 Inst. 299.
4. 52 Hen. III. c. 23.
5. 6 Edw. l. c. 5.
6. Co. Litt. 53.
7. Ibid. 341.
8. 2 Inst. 328.
9. 6 Edw. J. c. 13.
10. Regist. 77.
11. 2 Inst. 329.
12. F.N.B. 60, 61.
13. Ibid. 61.
14. 5 Rep. 115.
15. Moor. 100.
16. Hob. 85.
17. 6 Edw. I. c. 5.
18. 13 Edw. I. c. 22.
19. 2 Inst 403, 404.
20. Finch. L. 29.
21. F.N.B. 55.
22. Poph. 24.
23. Cro. Eliz. 18. 290.
24. Co. Litt. 53.
25. Law of nisi prius. 112.