DEVELOPMENT OF DOCTRINE OF WASTE 27 



for waste; upon the theory, evidently, that in all estates 

 created by conveyance or deed it was the duty of the party 

 creating the estate to provide such protection for the re- 

 version or remainder as was necessary. It was found ad- 

 visable to widen the scope of the action of waste as a pro- 

 tection against the destruction or diminution of landed 

 estates by persons occupying them temporarily under wills, 

 leases, etc. Accordingly, the Statutes of Marlbridge 1 and 

 Gloucester 2 extended the common law action for waste to 

 tenancies for life and for years, but these statutes did not 

 specifically include tenancies at will. 



32. Waste under Tenancies of Dower and Cur- 

 tesy and for Definite Periods. Tenancy of real estate 

 by either the right of dower or that of curtesy is essentially 

 a life estate. The incidents of such an estate are substan- 

 tially the same as those enjoyed by a life tenant and the 

 general rules of liability for waste applicable to a life es- 

 tate will be applied in legal controversies arising in con- 

 nection with the use of realty by one claiming either by 

 dower or curtesy. Furthermore, the rules of law as to 

 waste which are enforced against a life tenant are like- 

 wise applicable to a tenant for years or from year to year. 



33. Waste by Tenants at Will. In addition to the 

 fact that tenancies at will were not covered by the 

 Statutes of Ma/rlbridge and of Gloucester, the courts 

 considered that the other legal remedies available for a 

 landlord, who could at any time enter and thus end the 

 tenancy at will, were sufficient. 3 Although this theo- 

 retical distinction between a tenancy at will and the 

 other forms of tenancy has been generally observed in Eng- 

 land, and although authorities have announced this dis- 

 tinction as an American rule of law, 4 it appears that Ameri- 

 can courts have held tenants at will to be guilty of waste. 5 



1. St. 52 Henry III, Chap. 23, Sec. 2, A. D. 1287. 



2. St. 6 Edw. I, Chap. 5, A. D. 1278. 



3. Eng. & Am. Ency. of Law, 2d Ed. Vol. 30, p. 269, Note 6. 



4. 40 Cyc. 512. 



5. In the cutting of timber. Suffern v. Townsend, 9 Johns, (N. Y.) 35; Phillips v. 



Covert, 7 Johns (N. Y.) 1; Wright v. Roberts, 22 Wis. 161. 



In destroying fruit trees. Bellows v. McGinnis, 17 Ind. 64; Cf. Freeman v. Head- 

 ley, 33 N. J. L. 523; and Chalmers v. Smith, 152 Mass. 561. 



Contra. Coale v. Hannibal, etc. R. Co., 60 Mo. 227; Lothrop v. Thayer, 138 

 Mass. 466. However, both of these cases refer to permissive waste. 



