28 LIABILITY OF TENANT AS TO WASTE 



34. Commissive, Permissive and Equitable Waste. 



Different forms of waste were recognized by the common 

 law. Any positive action on the part of the tenant which 

 resulted in a permanent and substantial injury to the in- 

 heritance constituted what was known as voluntary waste. 

 Any neglect, or omission, of a legal duty which resulted 

 in such injury was known as permissive waste. Thus if 

 a tenant tore down a building or cut down a growing tim- 

 ber tree he would be held liable for voluntary waste while 

 if he suffered a building to become ruinous or allowed 

 young timber trees to be destroyed through neglect he 

 might be held liable for permissive waste. There was 

 still another form of waste for which the common law 

 afforded no adequate remedy but of which cognizance was 

 taken in the equity court. This was called "equitable 

 waste" and arose when a tenant did something which was 

 not inconsistent with his legal rights, but which, nevertheless, 

 was not such as a prudent man would do in the management 

 of his own property and which actually resulted in an in- 

 jury to the inheritance. It has been said that the doctrine 

 of equitable waste has not been developed in the United 

 States. l However, the doctrine has been defined in Ameri- 

 can cases. 2 



There appears to have been much doubt and conflict of 

 opinion as to whether the Statutes of Marlbridge and of 

 Gloucester comprehended permissive as well as voluntary, 

 or commissive, waste. This uncertainty as to the law 

 has found expression in conflicting American opinions. 3 

 The weight of opinion seems to be that in the United States 



1. Landlord and Tenant. Tiffany, Ed. 1910, p. 721. 



2. Belt. v. Simklns, 113 Ga. 894; Clement v. Wheeler, 25 N. H. 361; Gannon v. 



Peterson, 193 111. 372; Chapman v. Epperson Circled Heading Co., 101 111. App. 

 164. 



3. Following hold tenant liable for permissive waste. Moore v. Townshend, 33 



N. J. L. 284; Cargill v. Sewall, 19 Me. 288; White v. Wagner, 4 Hair. & J. (Md.) 

 373, 7 Am. Dec. 674; Stevens v. Rose, 69 Mich. 259, 37 N. W. 305; Newbold v. 

 Brown, 44 N. J. L. 266; Sampson v. Grogan, 21 R. I. 174, 42 Atl. 712, 44 L. R. A 

 711; Parrott v. Barney, 18 Fed. Cas. No. 10,773a, Deady 405. 

 Contra Danziger v. Silberthau, 18 N. Y. Suppl. 350, 21 N. Y. Civ. Proc. 283; 

 Shult v. Barker, 12 Serg. & R. (Pa.) 272; Smith v. Follansbee, 13 Me. 273; Rich- 

 ards v. Tarbert, 3 Houst. (Del.) 172; Smith v. Mattingly, 96 Ky. 228, 28 S. W. 

 203, 16 Ky. L. Rep. 418. 



