WASTE. A spoil or destruction houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee simple or fee tail 2 Bl. Comm. 281.
2. The doctrine of waste is somewhat different in this country from what it is in England. It is adapted to our circumstances. 3 Yeates, R. 261; 4 Kent, Com. 76; Walk. Intr. 278; 7 John. Rep. 227; 2 Hayw. R. 339; 2 Hayw. R. 110; 6 Munf. R. 134; 1 Rand. Rep. 258; 6 Yerg. Rep. 334. Waste is either voluntary or permissive.
3. - 1. Voluntary waste. A voluntary waste is an act of commission, as tearing down a house. This kind of waste is committed in houses, in timber, and in land. It is committed in houses by removing wainscots, floors, benches, furnaces, window-glass, windows, doors, shelves, and other things once fixed to the freehold, although they may have been erected by the lessee himself, unless they were erected for the purposes of trade. See Fixtures; Bac. Ab. Waste, C 6. And this kind of waste may take place not only in pulling down houses, or parts of them, but also in changing their forms; as, if the tenant pull down a house and erect a new one in the place, whether it be larger or smaller than the first; 2 Roll. Ab. 815 , 1. 33; or convert a parlor into a stable; or a grist-mill into a fulling-mill; 2 Roll. Abr. 814, 815; or turn two rooms into one. 2 Roll. Ab. 815, 1. 37. The building of a house where there was none before is said to be a waste; Co. Litt. 53, a; and taking it down after it is built, is a waste. Com. Dig. Waste, D 2. It is a general rule that when a lessee has annexed anything to the freehold during the term, and afterwards takes it away, it is waste. 3 East, 51. This principle is established in the French law. Lois des Bit. part. 2,
3, art. 1; 18 Toull. n. 457.
4. But at a very early period several exceptions were attempted to be made to this rule, which were at last effectually engrafted upon it in favor of trade, and of those vessels and utensils, which are immediately subservient to the purposes of trade. Ibid.
5. This relaxation of the old rule has taken place between two descriptions of persons; that is, between the landlord and tenant, and between the tenant for life or tenant in tail and the remainder-man or reversioner.
6. As between the landlord and tenant it is now the law, that if the lessee annex any chattel to the house for the purpose of his trade, he may disunite it during the continuance of his interest, 1 H. B. 258. But this relation extends only to erections for the purposes of trade.
7. It has been decided that a tenant for years may remove cider-mills, orna-mental marble chimney pieces, wainscots fixed only by screws, and such like. 2 Bl. Com. 281, note by Chitty. A tenant of a farm cannot remove buildings which he has erected for the purposes of husbandry, and the better enjoyment of the profits of the land, though he thereby leaves the premises the same as when he entered. 2 East, 88; 3 East, 51; 6 Johns., Rep. 5; 7 Mass. Rep. 433.
8. Voluntary waste may be committed on timber, and in the country from which we have borrowed our laws, the law is very strict. In Pennsylvania, however, and many of the other states, the law has applied itself to our situation, and those acts which in England would amount to waste, are not so accounted here. Stark. Ev. part 4, p. 1667, n.; 3 Yeates, 251. Where wild and uncultivated land, wholly covered with wood and timber, is leased, the lessee may fell a part pf the wood and timber, so as to fit the land for cultivation, without being liable to waste, but he cannot cut down the whole so as permanently to injure the inheritance. And to what extent the wood and timber on such land may be cut down without waste, is a question of fact for the jury under the direction of the court. 7 Johns. R. 227. The tenant may cut down trees for the reparation of the houses, fences, hedges, stiles, gates, and the like; Co. Litt. 53, b; and for mixing and repairing all instruments of husbandry, as ploughs, carts, harrows, rakes, forks, &c. Wood's Inst. 344. The tenant may, when he is unrestrained by the terms of his lease, out down timber, if there be not enough dead timber. Com. Dig Waste, D 5; F. N. B. 59 M. Where the tenant, by the conditions of his lease, is entitled to cut down timber, he is restrained nevertheless from cutting down ornamental trees, or those planted for shelter; 6 Ves. 419; or to exclude objects from sight. 16 Ves. 375.
9. Windfalls are the property of the landlord, for whatever is severed by inevitable necessity, as by a tempest, or by a trespasser, and by wrong, belongs to him who has the inheritance. 3 P. Wms. 268; 11 Rep. 81, Bac. Abr. Waste, D 2.
10. Waste is frequently committed on cultivated fields, orchards, gardens, meadows, and the like. It is proper here to remark that there is an implied covenant or agreement on the part of the lessee to use a farm in a husbandman-like manner, and not to exhaust the soil by neglectful or improper tillage. 5 T. R. 373. See 6 Ves. 328. It is therefore waste to convert arable to woodland and the contrary, or meadow to arable; or meadow to orchard. Co. Lit. 53, b. Cutting down fruit trees; 2 Roll. Abr. 817, l. 30; although planted by the tenant himself, is waste; and it was held to be waste for an outgoing tenant of garden ground to plough up strawherry beds which be had bought of a former tenant when he entered. i Camp. 227.
11. It is a general rule that when lands are leased on which there are open mines of metal or coal or pits of gravel, lime, clay, brick, earth, stone, and the like, the tenant may dig out of such mines, or pits. Com. Dig. Waste, D 4. But he cannot open any new mines or pits without being guilty of waste Co. Lit. 53 b; and carrying away the soil, is waste. Com. Dig. Waste, D 4.
12. - 2. Permissive waste. Permissive waste in houses is punishable where the tenant is expressly bound to repair, or where he is so bound on an implied covenant. See 2 Esp. R. 590; 1 Esp. Rep. 277; Bac. Abr. Covenant, F. It is waste if the tenant suffer a house leased to him to remain uncovered so long that the rafters or other timbers of the house become rotten, unless the house was uncovered when the tenant took possession. Com. Dig. Waste, D 2.
13. - 3. Of remedies for waste. The ancient writ of waste has been superseded. It is usual to bring case in the nature of waste instead of the action of waste, as well for permissive as voluntary waste.
14. Some decisions have made it doubtful whether an action on the case for permissive waste can be maintained against any tenant for years. See 1 New Rep. 290; 4 Taunt. 764; 7 Taunt. 392; S. C. 1 Moore, 100; 1 Saund. 323, a, n. i. Even where the lessee covenants not to do waste, the lessor has his election to bring either an action on the case, or of, covenant, against the lessee for waste done by him during the term. 2 Bl. Rep. 1111; 2 Saund. 252, c. n. In an action on the case in the nature of waste, the plaintiff recovers only damages for the waste.
15. The latter action has this advantage over an action of waste, that it may be brought by him in reversion or remainder for life or years, as well as in fee or in tail; and the plaintiff is entitled to costs in this action, which he cannot have in an action of waste., 2 Saund. 252, n. See, on the subject in general, Woodf. Landl. & T. 217, ch. 9, s. 1; Bac. Abr. Waste; Vin. Abr. Waste; Com. Dig. Waste; Supp. to Ves. jr. 50, 325, 441; 1 Vern. R. 23, n.; 2 Saund. 252, a, n. 7, 259, n. 11; Arch. Civ. Pl. 495; 2 Sell. Pr. 234; 3 Bl. Com. 180, note by Chitty; Anier. Dig. Waste; Whart. Dig. Waste; Bouv. Inst. Index, h. t.
As to remedies against waste by injunction, see 1 Vern. R. 23, n.; 5 P. Wms. 268, n. F; 1 Eq. Cas. Ab. 400; 6 Ves. 787, 107, 419; 8 Ves. 70; 16 Ves. 375; 2 Swanst. 251; 3 Madd. 498; Jacob's R. 70; Drew. on Inj. part 2, c. 1, p. 134. As between tenants in common, 5 Taunt. 24; 19 Ves. 159; 16 Ves. 132; 3 Bro. C. C. 622; 2 Dick. 667; Bouv. Inst. Index, h. t.; and the article Injunction. As to remedy by writ of estrepement to prevent waste, see Estrepement; Woodf Landl. & T. 447; 2 Yeates, 281; 4 Smith's Laws of Penn. 89; 3 Bl. Com. 226. As to remedies in cases of fraud in committing waste, see Hov. Fr. ch. 7, p. 226 to 238.
WASTE BOOK, com. law. A book used among merchants. All the dealings of the merchant are recorded in this book in chronological order as they occur.
WATCH, police. To watch is, properly speaking, to stand sentry and attend guard during the night time: certain officers called watchmen are appointed in most of the United States, whose duty it is to arrest all persons who are violating the law, or breaking the peace. (q. v.) Vide 1 Bl. Com. 356; 1 Chit. Cr. Law, 14, 20.
WATCH AND WARD. A phrase used in the English law, to denote the superinten-dence and care of certain officers, whose duties are to protect the public from harm.
WATCHMAN. An officer in many cities and towns, whose duty it is to watch during the night and take care of the property of the inhabitants.
2. He possesses generally the common law authority of a constable (q. v.) to make arrests, where there is reasonable ground to suspect a felony, though there is no proof of a felony having been committed. 1 Chit. Cr. L. 24; 2 Hale, 96; Hawk. B. 2, c. 13, s. 1, &c.; 1 East, P. C. 303; 2 Inst. 52; Com. Dig. Imprisonment, H 4; Dane's Ab. Index, h. t.; 3 Taunt. R. 14; 1 B. & A. 227; Peake, R. 89; 1 Moody's Cr. Cas. 334; 1 Esp. R. 294; and vide Peace.
3. By an act of congress, approved Sept. 30, 1850, the compensation of watchmen in the various departments of government, shall be five hundred dollars per annum.
WATER. That liquid substance of which the sea, the rivers, and creeks are composed.
2. A pool of water, or a stream or water course, is considered as part of the land, hence a pool of twenty acres, would pass by the grant of twenty acres of land, without mentioning the water. 2 Bl. Com. 18; 2 N. H. Rep. 255; 1, Wend. R. 255; 5 Paige, R. 141; 2 N. H. Rep. 371; 2 Brownl. 142; 5 Cowen, R. 216; 5 Conn. R. 497; 1 Wend. R. 237. A mere grant of water passes only a fishery. Co. Lit. 4 b.
3. Like land, water is distinguishable into different parts, as the sea, (q. v.) rivers, (q. v.) docks, (q. v.) canals, (q. v.) ponds, q v.) and sewers, (q. v.) and to these may be added at water course. (q. v.) Vide 4 Mason, R. 397 River; Water course.
WATER BAILIFF, English law. An officer appointed to search ships in ports. 10 H. vii., 30.
WATER COURSE. This term is applied to the flow or movement of the water in rivers, creeks, and other streams.
2. In a legal sense, property In a water course is comprehended under the general name of land; so that a grant of land conveys to the grantee not only fields, meadows, and the like, but also all the rivers and streams, which naturally pass over the surface of the land. 1 Co. Lit. 4; 2 Brownl. 142; 2 N. Hamp. Rep. 255; 5 Wend. Rep. 128.
3. Those who own land bounding upon a water course, are denominated by the civilians riparian proprietors, and this convenient term has been adopted by judges and writers on the common law. Ang. on Water Courses, 3; 3 Kent, Com. 354; 4 Mason's R. 397.
4. Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat) without diminution or alteration.
5. No proprietor has a right to use the water to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct as it passes along. Agua currit et debet currere, is the language of the law. 3 Rawle, Rep. 84; 9 Co. 57, b.
6. Though he may use the water while it runs over his lands, he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of the water, which would otherwise descend to the proprietor below, nor throw the water back upon the proprietor above, without a grant, or an uninterrupted enjoyment of twenty years, which is evidence of it. 3 Kent, Com. 353; 1 Wils. R. 178; 6 East, 203; 1 Simon & Stuart, 190; 2 John. Ch R. 162, 463; 4 Mass. R. 401 17 John. R. 321; 5 Ohio R. 822; 3 Fairf. R. 407; 8 Greenl. R. 268; 16 Pick. Rep. 247; 1 Coxes Rep, 460; Dig. 39, 3, 4, and 10; Pothier, Traite du Contrat de Societe, 2e app. n. 236, 237; Bell's Law of Scotland, 691; Ang. on' Water Courses, 12; 2 Conn. R. 584.
7. When there are two opposite riparian proprietors, each owns that portion of the bed of the river which is adjoining his land usque ad filum aquae; or, in other words, to the thread or central line of the stream; Harg. Tracts, 5; Holt's Rep. 499; and if hydraulic works be erected on both banks, each is entitled to an equal share of the water. 1 Paige's Chanc. Rep. 448.
8. The water can only be used by each as an entire stream, in its natural channel; for of the property in the water there can be no severance. 13 John. R. 212.
9. But it seems that when an island is on the side of a river, so as to give the riparian owner on that side one-fourth of the water, the other is entitled to the whole of the three-fourths of the river. 10 Wend. Rep. 260. See, also, 13 Mass. Rep. 507; 2 Caines' Cas. 87; 9 Pick. R. 528; 3 Kent, Com. 344, 345; 3 Rawle's R. 84; 2 Watts, R. 327; 8 Greenl. R. 138, 253; 9 Pick. Rep. 59; 10 Pick. R. 348; 10 Wend. R. 167; Com. Dig. Action for Nuisance, A; 4 D. & R. 583; S. C. 2 B. & C. 910; 1 Campb. R. 463; 6 East, R. 208; 1 Wils. Rep. 174;; 1 B. & A. 258; 5 Taunt. R. 454; 2 Esp. R. 679; 2 Hill. Abr. c. 14, 16, 17; Ham. N. P. 199; 1 Vin. Ab. 557 22 Vin. Abr. 525; 2 Chit. Bl. 403, n. 7; 3 Roll. 140, l. 40; Lois des Bat. part 1, c. 3, sed. 1, art. 3; Crabb on R. P. 398 to 443. Vide River.
WATER ORDEAL. An ancient form of trial, now abolished, by which the accused, tied band and foot, were cast into cold water, and if they did not sink they were deemed innocent or they were compelled to plunge their limbs into hot water, and if they came out unhurt they were considered innocent. Vide Ordeal.
WAVESON. This name is given to such goods as after shipwreck appear upon the waves. Jacob, Law Dict. h. t.
WAY, estates. A passage, street or road. A right of way is a privilege which an individual or a particular description of persons, such as the inhabitants of a particular place, or the owners or occupiers of such place may have, of going over another person's ground.
2. It is an incorporeal hereditament of a real nature, a mere easement, entirely different from public or private roads.
3. A right of way may arise, 1. By prescription and immemorial usage. 2 McCord, 447 5 Har. & John. 474; Co. Litt. 113, b; Br. Chem. 2; 1 Roll. Ab. 936. 2. By grant. 3 Lev. 305; 1 Ld. Raym. 75; 17 Mass. 416; Crabb on R. P. 366. 3. By reservation 4. By custom. 5. By acts of the legislature. 6. From necessity, when a man's ground is enclosed and completely blocked up, so that he cannot, without passing over his neighbor's land, reach the public road. For example, should A grant a piece of land to B, surrounded by land belonging to A; a right of way over A's land passes of necessity to B, otherwise he could not derive any benefit from the acquisition. Vide 3 Rawle, 495; 2 Fairf. R. 1,56; 2 Mass. 203; 2 McCord, 448; 3 McCord, 139; 2 Pick. 577; 14 Mass. 56; 2 Hill, S. C. R. 641; and Necessity. The way is to be taken where it will be least injurious to the owner. 4 Kent, Com. 338. 4. Lord Coke, adopting the civil law, says there are three kinds of ways. 1. A foot-way, called iter. 2. A foot-way and horse-way, called adus. 3. A cart-way, which contains the other two, called via. Co. Lit. 56, a; Pothier, Pandectae, lib. 8, t. 3, 1; Dig. 8, 3; 1 Bro. Civ. Law, 177. Vide Yelv. 142, n; Id. 164; Woodf. Landl. & Ten. 544; 4 Kent, Com. 337; Ayl. Pand. 307; Cruise's Dig. tit. 24; 1 Taunt. R. 279; R. & M. 151; 1 Bail. R. 58; 2 Hill. Abr. c. 6; Crabb on Real Prop. 360 to 397; Bouv. Inst. Index, h. t.; Easement; Servitude.
WAY BILL, contracts. A writing in which is set down the names of passengers, who are carried in a public conveyance, or the description of goods sent with a common carrier by land; when the goods are carried by water, the instrument is called a bill of lading. (q. v.)
WAY GOING CROP. In Pennsylvania, by the custom of the, country, a tenant for a term certain is entitled after the expiration of his Iease, to enter and take away the crop of grain which he had put into the ground the preceding fall. This is called the way going crop. 5 Binn. R. 289; 2 S. & R. 14; 1 P. R. 224.
WAYS AND MEANS. In legislative assemblies there is usually appointed a committee whose duties are to inquire into, and propose to the house, the ways and means to be adopted to raise funds for the use of the government. This body is called the committee of ways and means.