Chap. IV.
Sect. 4.

Act, 1873, s. 25, sub-s. 3, was not only to allow a tenant for life or years to commit waste, but it was a special power permitting him to appropriate the produce of the waste to Equitable waste. his own use (e). A Court of equity, however, considers the excessive use of the legal power incident to an estate unimpeachable of waste to be inequitable and unjust, and therefore controls it (f).

Pulling down mansion-house or other buildings.

It appears that if an owner in fee settles his estate on himself for life with remainders over, he will not be allowed any larger privileges than he would have had if the settlor had been a stranger (g).

Waste which will be restrained as being an unconscientious exercise of a legal power, is called equitable waste. An act may amount to equitable waste although there is a total absence of malice. "The presence or absence," said Lord Campbell, in Turner v. Wright (h), "of a bad motive will not enable us to draw any satisfactory line between what is to be considered malicious and what is to be considered equitable waste, and no line to regulate the interposition of a Court of equity by injunction can well be drawn other than the recognised and well-established line between legal and equitable waste" (i).

It is declared by the Judicature Act, 1873, s. 25, sub-s. 3, that an estate for life without impeachment of waste, shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate.

The case which is frequently referred to as being the leading decision on the subject of equitable waste is well known by the name of Lord Barnard's case (j). It is however far from being the earliest decision on the subject, as it appears to have been (e) Lewis Bowle's case, 11 Co. Rep. 380. See Vane v. Lord Barnard, 2 81 b; Kekewich v. Marker, 3 Mac. Vern. 738, Prec. Ch. 454; Barry v. & G. 327. Barry, 1 J. & W. 652.

(f) Marker v. Marker, 9 Ha. 1, 17; Micklethwait v. M., 1 D. & J. 504, 524.

(g) Vincent v. Spicer, 22 Beav

(h) 2 D. F. & J. 234, 245.

(i) See Aston v. Aston, 1 Ves. Sen. 265.

(j) Prec. Ch. 454; 1 Salk. 161.

a well-known branch of equitable jurisdiction in the time of
Lord Nottingham. In Abraham v. Bubb (k), we find that great
judge treating it as a settled point that if a tenant for life does
waste maliciously, a Court of equity will restrain him, though
he had an express power to commit waste. He cited the
Bishop of Winchester's case and Lady Evelyn's case as instances
in his recollection in which the Court had so interposed. In
several other cases about the same period the Court declared
that it would restrain both tenant for life without impeach-
ment of waste, and tenant in tail after possibility of issue
extinct, from committing "wilful," "destructive,' "mali-
cious," "extravagant,'
extravagant," or "humorsome" waste (l). These
determinations led to the remarkable case of Vane v. Lord
Barnard (m). Lord Barnard, who was tenant for life without
impeachment of waste of Raby Castle under the marriage
settlement of his son, with remainder to his son, in con-
sequence of some displeasure which he had conceived against
him, got workmen together and stripped the castle of the
lead, iron, glass, &c., and was proceeding to pull it down,
whereupon Lord Cowper granted an injunction and directed an
inquiry as to the amount of damage actually done, and ordered
it to be repaired at the expense of Lord Barnard. The ground
upon which the doctrine was as yet founded, was said to be
the destruction of the inheritance, and upon this principle
Lord Hardwicke said that if a tenant for life without impeach-
ment of waste were to pull down farm-houses he would restrain
him as much as if it were the case of a mansion-house (n).

If the acts complained of are of a trivial nature the Court will not interpose. Thus Lord Hardwicke observed that if the decision in Lord Barnard's case could be made use of to permit a son to call his father into a Court of equity for every alteration he might make in pulling up the floor of the house, &c., it would be better for the public that Raby Castle

(k) 2 Eq. Ca. Ab. 757, Free. Ch. 63, 2 Show. 69.

(1) Williams v. Day, 2 Ch. Ca. 32; Cooke v. Whaley, 1 Eq. Ca. Ab. 400, Anon. Freem. Ch. 278.

(m) Prec. Ch. 454, 1 Salk. 161, 2 Vern. 738.

() 1 Ves. Sen. 265. See Rolt v. Somerville, 2 Eq. Ca. Ab. tit. Waste,

pl. 8.

Chap. IV.
Sect. 4.

Chap. IV.
Sect. 4.

Ornamental

timber.

had been pulled down than that such a precedent should have been set (o).

The cutting of timber planted or left standing for ornament comes within the principle of equitable waste. The presumed will and intention of the settlor or devisor being the ground for the interference of the Court, the Court does not proceed upon any fancied notions of its own as to whether or not timber may be ornamental (p), but confines its protection to trees which have been planted or left standing for ornament by him (q). However ornamental in fact trees may be, they will not be protected unless they have been dedicated in some way or other by the settlor or devisor to the purposes of ornament (r). Trees, on the other hand, which have been treated as ornamental by him will be considered by the Court to be ornamental, whether they are or are not, in point of fact, ornamental. The taste of the grantor is binding upon the tenant for life, and the Court will not inquire as to what is beautiful or not. All it has to ascertain is the intention of the settlor or devisor (s). Where land is taken in exchange for settled property, timber left standing for ornament or shelter on the land taken in exchange cannot be cut down by the tenant for life (t).

Trees which have been planted or left standing for the purpose of excluding objects from view (u), or for the purpose of shelter and protection to a mansion-house (x), are regarded as ornamental timber. In Coffin v. Coffin (y), Lord Eldon refused that part of the order for an injunction which had been granted by the Vice-Chancellor, restraining a man from cutting trees which protected the premises from the

(0) Piers v. Piers, 1 Ves. Sen. 521. (p) Marker v. Marker, 9 Ha. 1, 17. (q) Marker v. Marker, 9 Ha. 1, 17; Ford v. Tynte, 2 D. J. & S. 127.

(r) Ib.; Williams v. Macnamara, 8 Ves. 70; Halliwell v. Philipps, 4 Jur. N. S. 607.

(8) Wombwell v. Bellasyse, 6 Ves. 110, n; Marquis of Downshire v. Sandys, ib. 110; Ford v. Tynte, 2 D. J. & S. 127.

(t) Ashby v. Hicks, 58 L. T. 557.

(u) Day v. Merry, 16 Ves. 375; 10 R. R. 200; Campbell v. Allgood, 17 Beav. 627.

(a) Chamberlayne v. Dummer, 1 Bro. C. C. 166, 3 ib. 549; Tamworth v. Lord Ferrers, 6 Ves. 419; Marquis of Downshire v. Sandys, ib. 107; Coffin v. Coffin, Jac. 71; 23 R. R. 1. Campbell v. Allgood, 17 Beav. 626. (y) Jac. 71.

effects of the sea.

The reasons of his lordship are not given, and it is difficult to see why that part of the order was refused.

It has been said that the protection of the Court is confined to trees of a purely ornamental character, and that trees which have been planted for profit as well as for ornament will not be protected (z); but this statement seems too wide (a).

The Court has often much difficulty in determining whether trees have been planted or left standing for ornament. The question in all cases of the sort is a question of fact, and the main difficulty lies in the evidence necessary to establish the fact (b). The existence of a mansion-house will in many cases supply the Court with evidence on which to determine the point as to the ornamental character of timber, for trees when in the neighbourhood of a mansion-house will be assumed to have been planted for ornament (c).

It is not, however, necessary that timber should be contiguous to a house or park in order to entitle it to the protection of the Court as being ornamental (d).

Chap. IV.
Sect. 4.

timber.

The Court has greater difficulty in determining that trees Ornamental have been left standing or preserved for ornament, than in determining that trees have been planted for ornament; but the leaving trees standing beyond the usual and provident period of cutting, the clearing out of trees and surrounding them by pleasure walks and seats, and other circumstances, from which an inference arises that the settlor or devisor regarded the trees with other views than as mere subjects of profit, may be considered as primâ facie evidence that trees were left standing for shelter or ornament (e). It is doubtful whether the Court can ever go back beyond the time of an

(z) Halliwell v. Philipps, 4 Jur. N. S. 608; and see Micklethwait v. Micklethwait, 1 D. & J. 527.

(a) See Bedoyère v. Nugent, 25 L. R. Ir. 143; Ford v. Tynte, 2 D. J. & S. 127, 133.

(b) 9 Ha. 17.

(c) Micklethwait v. Micklethwait,

1 D. & J. 504, 526.

(d) See Marquis of Downshire v. Sandys, 6 Ves. 110; and Wombwell v. Bellasyse, 6 Ves. 110, n.

(e) Lushington v. Boldero, 6 Madd. 149; 22 R. R. 261. See Halliwell v. Philipps, 4 Jur. N. S. 607.

Chap. IV.
Sect. 4.

Thinning of

trees.

absolute owner of the estate for the purpose of ascertaining whether timber is to be treated as ornamental (ƒ).

Although the Court will, as a general rule, abstain from exercising a judgment upon matters of taste, yet where a deed of settlement provided that enough of the most ornamental timber should always remain to leave the beauty of the place unimpaired, and the deed evidently referred to the state of the property at the time of its execution as the standard of beauty, the Court directed an inquiry whether certain trees could be cut without impairing the beauty of the place as it stood at the date of the settlement (g). "Although there will be, no doubt," said L. J. Turner (h), "great difficulty in executing a trust or enforcing an injunction to preserve the property according to a certain standard of beauty, the difficulty is not such as it is beyond the power of the Court to grapple with.”

The question what a prudent owner would do in the proper and ordinary course of management of his property, is not the measure of the obligation which attaches in a Court of equity upon a tenant for life without impeachment of waste with reference to timber planted or left standing for ornament. But if there be evidence to show that a wood planted or left standing for ornament had been resorted to by the absolute owner for the supply of timber for repairs or sale, a tenant for life without impeachment of waste may do the same, provided he acts as a prudent owner in a due course of management would do (i).

In v. Copley (k), where the defendant by his answer stated that he had cut down trees for the improvement of the estate, Lord Erskine granted an injunction against cutting down ornamental timber and trees planted in the situations of others cut down, but without prejudice to the thinning of trees for the sake of ornament (1). So also if a tempest has produced gaps in a piece of ornamental planting by which

(f) Micklethwait v. M., 1 D. & J.
504, 513.

(g) Marker v. M., 9 Ha. 1.
(h) Ib. 18.

(i) Ford v. Tynte, 2 D. J. & S.

127.

(k) 3 Madd. 525 n. Barry, 1 J. & W. 654.

See Barry v.

(1) See s. 28, sub-s. (2) of the Settled Land Act, 1882.