ELEMENTS OF WASTE 31 



a tenant holds realty without impeachment for waste, he can - 

 not lawfully commit malicious waste and if his action is un- 

 conscientious a court of equity will restrain him as one com- 

 mitting equitable waste. 1 It should be noted that waste is 

 an injury to the estate by one who is rightfully in posses- 

 sion, while trespass is an injury by one who is a stranger 

 to the title and has no right whatever to the property. 



37. The Essential Elements of Waste. Although 

 it has always been the rule in common law that there was 

 a presumption that waste had not been committed or con- 

 templated by the one charged with it, 2 and that the com- 

 plainant must show that an injury to the inheritance had 

 been, or was about to be, done, 3 yet the doctrine of waste 

 lias been very strictly construed against the one in possession 

 under a life estate or other tenancy whenever the plaintiff 

 succeeded in establishing a permanent and substantial 

 injury. The essence of the doctrine was that the reversioner, 

 remainderman, or other owner of the fee was entitled to 

 have the property come to him, after the termination of 

 the tenancy, in substantially the same form in which it 

 was at the time the tenant took possession. Acts which 

 actually increased the pecuniary value of the inheritance 

 but nevertheless tended to destroy the identity of the 

 property, to increase the burden upon it or to impair the 

 evidence of title were held to constitute waste. 4 Such 

 waste has been called "meliorating waste." A legal duty 

 rested upon the tenant to preserve the character of the 

 estate, and, as a matter of law, irrespective of whether 

 the market value of the estate or its capacity for producing 

 income were actually diminished or increased, it was waste 

 for him either to convert woodland into arable land or pas- 

 turage, or to permit arable land or pasturage to grow up 

 to brush or woods. 



1. Clement v. Wheeler, 25 N. H. 361; Duncombe v. Felt. 81 Mich. 332, 45 N. W. 



1004; Stevens v. Rose, 69 Mich. 259, 37 N. W. 205; Kane v. Vanderburgh. I 

 Johns, Ch. (N. Y.) 11. For English cases see: 16 Cyc. 627; 40 Cyc. 500. 



2. Lynn's App., 31 Pa. St. 44, 72 Am. Dec. 721; Rutherford v. Wilson, 95 Ark. 246, 



129 S. W. 534; Morris v. Knight, 14 Pa. Super. Ct. 324; Glass v. Glass, & Pa. 

 Co. Ct., 408. 



3. Morris v. Knight, 14 Pa. Super. Ct. 324. 



Act must be more than merely bad husbandry. Patterson v. Central Canada 

 Loan, Etc. Co., 29 Ont. 134. 



4. Palmer v. Young, 108 111. App. 252, 255; McCullough v. Irvine, 13 Pa. S*. 438; 



Livingston v. Reynolds, 26 Wend. (N. Y.) 115. 



