bility of adopting it is perhaps the reason for the above rule by the courts.1

He can

§ 509. Exemption from liability for waste. It is quite frequent, in demises of land, for mining purposes, for the lessor or reversioner by grant, to exempt the lessee from liability for waste. Where there is such a provision in the instrument of demise, the lessee is then said to hold his estate without impeachment for waste." do many acts which would be denied such a lessee when not exempt from this liability, and even though the land was not demised to him for mining purposes, when relieved from the liability for waste, he could convert mineral deposits to his own use and perform many other acts which would ordinarily be denied the lessee of land for other than mining purposes, and such acts would not enable the lessor or reversioner to hold him liable for waste.3. But under certain circumstances the lessee could be held liable for waste, although the lessor or reversioner had exempted him from this liability in the instrument of demise, and this can be done whenever the injury results from the willfulness, maliciousness, or gross neglect of the lessee." In such cases, he cannot release himself under the clause exempting him from liability for waste, for it is not sup

1 For distinction between abandonment and cesser of work, as regards the action of waste, in quarrying cr mining, see Elias v. Snowden Slate Co., 15 M. M. R. 143.

2 Tiedeman on R. P., § 80, p. 56.

3 Tiedeman R. P., ante, idem. 2 Bl. Com. 283; 1 Cruise's Dig. 128; Lewis Bowle's Case, 11 Rep. 83; Pyne v. Dorr, 1 T. R. 56; Chalmeley v. Paxton, 2 Bing. 207. "The intent of this phrase is that new mines may be opened and timber cut. The tenant under pretense of such clause attempting to pull down the castle, was enjoined." Vane v. Bernard, 1 Salk. 161; s. c. 2 Vernon, 738; M. M. D. 402.

4 Tiedeman on Real Property, supra.

5 Ante, idem. 1 Washb. on R. P. 155.

posed that the lessor intended to exempt him in such cases and an injunction will lie to restrain him from committing acts of willful and malicious waste,1 or if he has already committed such acts he can be made to respond in damages for the injury resulting to the lessor.2

§ 510. Waste by licensee Action on the case. - Inasmuch as mining is carried on in some of the States under rules and regulations, prescribed by the owner of the land, it may be well to premise that such tenants are governed generally by such rules and regulations, and are liable to the owner of the land for any waste committed on the premises where they are at work.3 Parties mining under such rules and regulations are held to be mere licensees on the premises, where they are conducting their mining operations, and as licensees they are not justified in committing waste, and it is immaterial whether the license is merely parol or reduced to writing, their liability for injuries to the inheritance is the same.5 The action of case would be the proper remedy of the owner for an injury by a licensee to the inheritance, and

1 2 Bl. Com. 283; Jones v. Hill, 1 Moore, 100; Mayo v. Feaston, 2 McCord Ch. 137; Mollineux v. Powell, 3 P. Wms. 268; Harris v. Thomas, 1 Hen. & M. 18.

2 Vane v. Barnard, 2 Vern. 738; Marker v. Marker, 4 Eng. Law & Eq. 95. And at common law treble damages would be given. 1 Wash. on R. P. 152; 2 Bl. Com. 283.

3 Kinleyside v. Thornton, 2 W. Bl. 1111. But see West v. Tuende, Cro. Cor. 187; Co. Lit. 57a.

4 Lunsford v. La Motte Lead Co., 54 Mo. 426; Grubb's App., 90 Pa. St. 228.

5 Taylor on L. & T., § 697, and cases cited; s. c. McGregor v. Brown, 10 N. Y. 114.

6 Taylor's Land. & Ten., § 687, and cases cited. For before one can be chargeable with waste, he must be in possession of the land, and where one has a mere license to mine, or perform other acts upon the

2

3

in fact this action has now almost superseded the common law action of waste, and is the ordinary action for the recovery of damages in the case of voluntary waste.1 By this action any reversioner or remainderman can recover damages, whether he has an estate in fee for life, or for years, and for an injury to the inheritance the action will lie, either against the lessee or a stranger, and against the tenant by sufferance, or for years, even though the waste was committed after notice to quit. But in the case of estates at will and all estates which are made estates at will by statute, this action will not lie, and the action of trespass and not case, is the proper action against the party committing the waste.5 Generally, however, the action will lie against any of the parties above mentioned, and it is by far the most common remedy, for in cases where the lease contains a covenant against waste, the owner is not confined to his action on the covenant, but at his election may sue in either covenant or case.

§ 511. Joinder of plaintiffs under the code. The general statutory provision in this, as in other actions, is that where two or more are jointly entitled, or have a joint legal interest in the property affected, they must in

land of another, his license does not entitle him to the possession, and if he exceeds his license and performs other acts which result in injury to the inheritance, trespass, and not waste, is the proper Grubb's App., 90 Pa. St. 228; Lunsford

remedy for the land owner.

v. La Motte Lead Co., 54 Mo. 420; Id. v. Lockwood, 56 Mo. 68.

1 Taylor's Land. & Ten., supra.

2 Green v. Cole, 2 Wms. Saund. 252.

3 Kinleyside v. Thorton, supra.

4 Taylor's L. & T., supra.

Taylor's L. & T., § 687, p. 281; Goodnight v. Vivian, 8 East, 190.

6 Harder v. Harder, 26 Barb. 409. And in ascertaining the damages for the waste committed, the jury, in such an action, can take into con

general join in the action." 1 Under this provision partners must join in an action for waste committed in regard to the partnership estate, and although, at common law, tenants in common could not join in an action for an injury to the estate, unless they were jointly affected by the injury, where they were all affected by the injury, as in personal actions, they must all join in seeking the redress.1 In actions for injuries to the title, tenants in common are not required to join, for as the titles spring from different sources, an injury to the title of one may have nothing to do with that of another; 5 but as the possession of such tenants is joint, they are all equally affected by an injury to the possession in proportion to their several interests and all should join in an action for such an injury. This statute does not permit several actions for the same injury by those having a common interest therein. It prevents different actions for the same trespass or for other injury where the title to the land is not affected and the damages survive to all. At common law, if any one of the plaintiffs in such an action failed to show an existing right to sustain the cause, this prevented the other from recovering, but under the code the equitable rule has been adopted which permits persons having an interest in the subject of the action and

all

sideration, not only the market value of the mineral removed, but also the injury resulting to the inheritance from the removal. As to measure of damages in such cases, see Austin v. Coal Co., 72 Mo. 535.

1 See code provisions of different States.

2 Medburg v. Watson, 6 Met. 246.

8 See Bliss Code Pleading, § 24.

4 Love v. Dobyns, 11 Mo. 106; Dupuy v. Strong, 37 N. Y. 372; Low v. Munford, 14 Johns. 426.

the relief" to join as plaintiffs, and under this provision a judgment can be given in favor of one or more of the plaintiffs and against the others.1

§ 512. When equity will interfere. The original province of a court of equity was to provide remedies in cases wherein the common law remedy was defective, and since at common law there was no remedy until the waste had actually been committed, it was early recognized as clearly within the jurisdiction of a court of equity to interfere to restrain such acts as would result injuriously to the inheritance. A lessor need not, relying on his legal remedy, wait until waste has actually been committed, but when he discovers any act on the part of the tenant, which would cause permanent injury to the inheritance, if carried into effect, equity will grant an injunction to restrain him from carrying out this act.3 And if such act would result injuriously to the inheritance, it is immaterial whether he has shown an intention to commit waste or not, an injunction would be granted, and where there is a covenant on the part of the lessee against the commission of a certain act, or the lessee is about to commit an act in contravention of such covenant, an injunction will lie to restrain him from doing this act, whether it amounts to waste or not.5 An injunction will also lie to prevent the

1 Bliss on C. P., § 24, p. 31.

2 Bispham's Principles of Equity, § 431, and cases cited; Bishop of London v. Webb, 1 P. Wms. 526; Blanchard & Weeks Ld. Cas., p. 323; U. S. v. Parrott, 1 McAll C. C. 271; 2 Story's Eq. Jur. 929; Breman v. Gaston, 17 Cal. 372; McLaughlin v. Kelly, 22 Id. 212; Sedman v. Vaudry, 16 Ves. 393; and see B. & W. L. C., p. 645.

3 Taylor's Land. & Ten. 691; 2 Story's Eq. Jur. 179; Bisp. Prin. Eq. 431-434.

4 Kingston v. Eve, 2 Ves. & B. 349; Caldwell v. Bayles, 2 Mer. 408.

5 Taylor's Land & Ten., § 691, p. 284; citing Rollfe v Peterson, 2 Bro. P. C. 436; Lewis v. Fothergill, 5 Ch. App. 103; Abinger v. Ashton, L. R. 17 Eq. 358; B. & W. L. C. 646.