WASTE BY COTENANTS 29 



tenants for life 1 and for years 2 are liable for permissive 

 waste, but tenants at will are not liable for permissive 

 waste 3 on the ground largely that the tenancy is too un- 

 certain for the tenant to assume obligations as to repair, 

 etc. 4 Thus upon the theory that the Statutes of Marl- 

 bridge and Gloucester form a part of the common law in 

 the United States, except as modified by American stat- 

 utes, 5 American courts have held that, in the absence 

 of a special agreement to the contrary, a tenant is ordinarily 

 responsible for waste committed on the premises of which 

 he has lawful possession, by whomever committed, unless 

 such waste is the result of an act of God, of a public enemy , 

 or of the person holding the unltimate fee. 6 



35. Waste under a Joint Tenancy or a Tenancy 



in Common. Under the early common law a tenant in 

 common or joint tenant 7 could not be held for waste, but the 

 statute of Westminster II 8 gave to every tenant in common 

 the right to bring an action for waste against his co-tenant. 9 

 To remove any doubt as to the liability of co-tenants for 

 waste statutes have been enacted in many American states 

 under which relief against waste is given a tenant in 

 common. 10 In some jurisdictions the common law as modi- 



1. Miller v. Shields, 55 Ind. 71; Stevens v. Rose, 69 Mich. 259; Wilson v. Edmonds, 



24 N. H. 517; Schulting v. Schulting, 41 N. J. Eq. 130; Moore v. Town- 

 shend, 33 N. J. L. 284; Harvey v. Harvey, 41 Vt. 373. Contra Richards v. 

 Torbert, 3 Houst. (Del.) 172. 



2. White v. Wagner, 4 Harr & J. (Md.) 373; Moore v. Townshend, 33 N. J. L. 284; 



Newbold v. Brown, 44 N. J. L. 266; Suydam v. Jackson, 54 N. Y. 450; Long v. 

 Fitzsimmons, 1 W. & S. (Pa.) 530. 



3. Lothrop v. Thayer, 138 Mass. 466. Harnett v. Maitland, 16 M. & W. 257. 



4. Moore v. Townshend, 33 N. J. L. 284. 



5. Parker v. Chanbliss, 12 Ga. 235; Sackett v. Sackett, 8 Pick. 309; Chase v. Hazel- 



ton, 7 N. H. 171; Sherrill v. Conner, 107 N. C. 543, 12 S. E. 588; Dozier v. 

 Gregory, 46 N. C. 100; Parrott v. Barney, 18 Fed. Cas. No. 10773a, Deady 405. 

 But see. Stetson v. Day, 51 Me. 434; Smith v. Follansbee, 13 Me. 273; Moss 

 Point Lumber Co. v. Harrison County, 89 Miss. 448, 42 So. 290, 293 ; Hamden 

 v. Rice, 24 Conn. 350. 



6. Miller v. Shields, 55 Ind. 71; Babb v. Perley, 1 Me. 6; Neel v. Neel, 19 Pa. St. 323; 



Real Prop. Tiff., Sec. 254, N. 234-5. 



7. Nelson v. Clay, 7 J. J. Marsh (Ky.) 138, 23 Am. Dec. 387; 23 Cyc. 492. 



8. 13 Edw. I, Chap. 22, A. D. 1285. 



9. Shiels v. Stark, 14 Ga. 429; Nelson v. Clay, supra. 



10. Cal. McCord v. Oakland Quicksilver Min. Co., 64 Gal. 134; 49 Am. Rep. 686. 

 Ga. Shiels v. Stark, 14 Ga. 429. 

 111. Murray v. Haverty, 70 111. 318. 

 Ky. Novels v. Ky. Lumber Co. 108 Ky. 550; Nelson v. Clay, 7 J. J. Marsh 



138, 23 Am. Dec. 387. 



Me. Maxwell v. Maxwell, 31 Me. 184, 50 Am. Dec. 657; Hubbarb v. Hubbard, 

 15 Me. 198; Moody v. Moody, 15 Me. 205. 



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