by one who has the remainder or reversion in fee simple, after an intervening estate for life or years, and also by one who has a remainder or reversion for life or years only.1 The action can be maintained by tenants in common, tenants of a joint tenancy, and by parceners against their cotenants, and in every case the party entitled to the action can recover such damages as it appears he has suffered from the act complained of." But the provisions of the code, giving the reversioner or remainderman the right to maintain the action, notwithstanding any intervening estate for life or years, authorizes only waste against a tenant and trespass against a stranger to the possession; it does not authorize the action of waste against a third party.3

1 Bliss on Code Pleading, 30, and cases cited. "Digging lead ore from the lead mines upon the public lands is such waste as entitles the United States to an injunction." U. S. v. Gear, 3 How. 132; M. M. D. 135. "It is not destructive waste for a tenant in common of a coal mine to get, or to license another to get, the coals, he, the working tenant, not appropriating to himself more than his share of the proceeds." Job v. Patton, L. R. 20 Eq. 84; M. M. D. 206. "Charge of waste in mining against tenant for life must be made affirmatively to appear; the presumption is in favor of the tenant for life." Lynn's Appeal, 31 Pa. St. 44; M. M. D. 400. Waste can only be maintained by the holder of the legal title. Gillett v. Treganza et al., 13 Wis. 472; s. c. 7 Mor. Min. Rep. 432. In action of waste against life tenant, the remainder man must not only prove the acts of waste, but that such acts injured the inheritance. Morris v. Knight, 14 Pa. Super. Ct. 324. And where the acts were cutting timber, tenant may show trees were dying. Idem. The action can, generally, be maintained by any one owning a reversionary estate in the premises, against the tortious tenant. Howard v. Patrick, 38 Mich. 795; Thompson v. Manhattan Co., 130 N. Y.360; 22 Enc. Pl. & Pr. 1104. A purchaser at sheriff sale cannot recover for acts of waste by the former owner. Baker v. Johnson (Del.) 42 Atl. Rep. 449; O'Connor v. Bank, 116 Ala. 585; 22 So. Rep. 902. A mortgagor in possession, working a mine, is liable for the waste committed. Capner v. Flemington Min. Co., 3 N. J. Eq. 467.

2 R. S. Mo., 1899, supra; and Statutes different States.

3 Taylor's L. & T., note, § 698; Cole et al. v. Han. & St. J. Ry. Co., 60 Mo. 227.

§ 501. Same Against representative of lessee. The common law action of waste was considered a tortious action which died with the person of the tenant and although the executor and administrator of a tenant for years can be held liable for waste committed by themselves, while in possession of the land, they cannot be charged for waste committed by a testator in his lifetime, for the reason that the action does not survive the person of the tenant.1 During his own lifetime, however, every lessee is liable for waste committed on the leased premises, whether committed by the tenant or not, if he is in possession of the premises, under the lease, at the time the waste is committed.2 Statutes have been passed in most of the code States, however, providing for a remedy in case of the death of the tenant of the particular estate,3 and under such statutes, any person, or his personal representatives, may maintain the action of trespass against the executor or administrator of any testator, or intestate, who during his life committed any act of trespass or conversion, either in regard to the real or personal estate of such person. But when treble damages are imposed by the statute against persons committing waste, such damages can only be recovered against the person actually committing the waste."

1 "But the Sta. 3 Edw. III., Chap. 8, having always been in force in this country, may so far be treated as the common law," and according to this statute every kind of injury to personal property gives a right of action, which survives to the personal representative. Bliss on Code Pleading, § 39.

2 Taylor's Land & Ten., § 689, p. 282. And he is responsible even for the acts of a third party. Supra.

3 Statutes and codes of different States; Bliss on Code Pleading, § 40.

4 Bliss on Code Pleading, §§ 40-41, and cases cited.

Taylor's Land. & Ten. 689.

§ 502. What acts constitute waste. It is impossible to lay down any fixed rule to determine in each particular case whether certain acts would constitute waste or not. Every case must be determined according to the facts and circumstances peculiar to that given case, and the usages or customs of the community or mining district, enter very largely into the settlement of the question.1 Under certain circumstances many things would be injurious, which, at other times and places, or under other conditions, might be really beneficial to the premises. A familiar illustration is the cutting of timber on land leased for mining purposes. In some localities the lessee would be limited strictly to what was necessary for these purposes, and he could be held liable for waste if he exceeded what was reasonably necessary. In another section of the country where the timber was plentiful, it would be beneficial to the inheritance to have the wood removed, and there it would not be considered waste in the lessee to remove such timber from the land, even though he should cut more than was reasonably necessary for his mining operations. But, although the removal of the timber might be beneficial to

McCoy v. Wait, 51 Barb. 225; Bond v. Lockwood, 33 Ill. 212; Drown v. Smith, 52 Me. 141. Whether the particular acts amount to waste is a question of fact for the jury. B. & W. L. C., p. 319.

2 Ante, idem. Tiedeman R. P. 78 et sub.; Moyle v. Moyle, 6 Wen. 66; s. c. B. & W. L. C. 319. Working through into another's land is trespass, and not waste. Mitchell v. Dore, 6 Ves.174; B. & W. L. C., supra. 3 Tiedeman R. P., § 74, p. 51; Drown v. Smith, 52 Me. 141; Keeler v. Eastman, 11 Vt. 293; McGregor v. Brown, 10 N. Y. 118.

4 McCollough v. Irwine, 13 Pa. St. 438; Harder v. Harder, 20 Barb. 414; Morehouse v. Cobhead, 22 N. J. Eq. 521; Crockett v. Crockett, 2 Ohio St. 180. "The law of waste must be accommodated to the circumstances of a new and unsettled country." (Virginia, 1818.) Findley v. Smith, 6 Munf. 134; M. M. D. 400. It is an act of waste to work unopened mines and quarries. Bainbridge (1 Am. Ed.), 39; Bond v. Lockwood, 33 Ill. 212; Shaw v. Wallace, 25 N. J. L. 453; Crouch v. Puryear (Va.), 10 Am. Dec. 528.

the premises, the lessee would not have the right to sell the same, unless such a course was customary in the community, for this right belongs strictly to the owner of the land.1 Generally speaking, any act which results injuriously to the inheritance, would be considered waste, and especially would this be the case when the land was used for purposes other than those for which the same was leased. A resulting damage to the reversioner must always be shown, however, and whether or not a particular act would be considered waste, is always a question of fact for the jury to determine.3

§ 503. Same As In respect to mineral deposits. before explained, any act which would be considered injurious to the inheritance and which was not in accordance with the purposes for which the land was leased, would be considered waste. This rule applies as well to the lessee

1 Chase v. Hazelton, 7 N. H. 171; Clemence v. Steere, 1 R. I. 272; Parkins v. Coxe, 2 Hayw. 339; Tiedeman R. P. 74, p. 52.

2 2 Bl. Com. 281; Moyle v. Moyle, Owen, 66; B. & W. L. C. 319, and cases cited.

3 Taylor's Land. & Ten. 346-689, and cases cited; 1 Washb. R. P. 108-109; Gallagher v. Shipley, 24 Md. 418; Jackson v. Brownson, 7 Johns. 227; B. & W. L. C. 319. If one tenant in common take coal from the common property, without accounting therefor, this will constitute waste. Cecil v. Clark (W. Va.), 35 S. E. Rep. 11. And so as to timber. State v. 4 Jud. Dist., 52 La. Ann. 103; 26 So. Rep. 769; Nevels v. Ky. &c. Co., 56 S. W. 969; 49 L. R. A. 416. Or quarrying rock. Griff v. Dewey, 164 N. Y. 1; 58 N. E. Rep. 1. If a lessee commit an act which alters the nature of the premises, it is waste. West Ham. Cent. Bd. v. Waterworks Co., 69 L. J. Ch. 257; 1 Ch. (1900), 624. Drilling for oil by

a lessee, under a lease by a life tenant, is waste. Kenton Gas Co. v. Dorney, 17 Ohio C. C. 101. A mortgagee in possession is not liable for waste who only cuts timber necessary for firewood and to repair buildings on the premises. Chase v. Driver, 92 Fed. Rep. 780. large quantities of growing timber by a life tenant is waste. Smith, 105 Ga. 106; Davis v. Clark, 40 Mo. App. 515.

41 Wash. R. P. 108, 109, and authorities cited, supra.

Sale of Smith v.

who enters under a mining lease and willfully or negligently causes injury to the inheritance, as it does to any other lessee who is guilty of a similar act.1 The act of mining itself would be considered waste, and the opening of new mines, or making excavations in search of ore, would be considered waste, unless the right to do so is expressly granted by the owner of the land. And where the right to mine is not expressly given the lessee, as where he enters under the lease for other than mining purposes, he will not be permitted to dig or sell any of the mineral deposits found upon the land, or to convert the same to his own use, unless his action in this regard had been previously ratified by the owner of the land or his course established by the custom of the community. If, however, it had been the custom of previous owners to make such a use of the land, or if his acts were warranted by the custom of the community, such a lessee could not be charged with waste by converting mineral deposits found in the land to his own use.1 But even though his acts were justified by the custom of former owners, he would only be allowed to use such mines or pits as were already open at the time of his entry, and if he should open new ones for the purpose of obtaining mineral he would still be liable for waste. But a lessee.

1 And an act by one of two joint lessees amounting to waste would be waste by both. Greene ». Cole, 2 Wms. Saund. 259b.

2 Tiedeman on R. P., p. 52, § 75, and note; 2 Bl. Com. 281; Saunders' Case, 5 Rep. 12; Stoughton v. Liegh, 1 Taunt. 410; Irwin v. Covode, 24 Pa. St. 162; Owings v. Emery, 6 Gill. 260; 8 M. M. R. 337.

3 Moyle v. Moyle, Owen, 66; Knight v. Mosley, Amb. 176; Neele v. Neele, 19 Pa. St. 324; Kier v. Peterson, 41 Id. 361; Crouch v. Puryear, 1 Rand. 258; Billings v. Taylor, 10 Pick. 460; Lenfers v. Henke, 73 Ill. 405; Hendrix v. Macbeth, 61 Ind. 473.

4 Whitfield v. Bewit, 2 P. Wms. 240; Co. Litt. 37a, 54b; Bac. Abr. Waste, 3; B. & W. L. C. 318.

5 Tiedeman R. P., § 75 and cases; Owings v. Emery, 6 Gill. 260; Taylor's Land. & Ten., § 346, p. 405; B. & W. L. C., supra.