1-2 -Z ACTS OF WASTE. 



the annual produce, I think it is not very likely tliat the lessor Avould 

 make apple trees the subject of an express exception." A covenant in 

 a lease to deliver up at the end of the term all the trees standing in an 

 orchard at the time of the demise, ''reasonable use and ivear onhj cx- 

 cepfed,'' is not broken by removing trees decayed and past bearing from 

 a part of the orchard, which was too crowded {Boe dem Jones v. Crouch). 

 Here nine trees had been cut down, and nine planted, and Lord 

 EUenloromjh held that the above was " a reasonable use of the orchard 

 and the trees.-" A tenant of a nurscr// //round and garden may, at the 

 expiration of his tenancy, remove such trees as are saleable l)y him in 

 his trade as a nurseryman, but not such as are only cultivated with a 

 view to the fruit they yield, and are used by him as a market gardener ; 

 and it is entirely a question for the jury, whether they come under one 

 description or the other (Wardell v. Uslter). 



Alderson B. in Fhittips v. Smith thus defined Waste: "The destruc- 

 tion of germens or young plants destined to become trees (Co. Litt. 43), 

 which destroys the future timber, is waste ; the cutting of apple trees 

 in. a garden or orchard, or the cutting down a quickset hedge of thorns 

 (Co. Litt. 53 a), which changes the nature of the thing demised ; or the 

 eradicating or unseasonable cutting of white thorns (Vin. Abr. "Waste, 

 E), which destroys the future growth, are all acts of waste. On the 

 other hand, those acts are not waste which, as Richardson C.J. in 

 Barrett v. Barrett says, are not prejudicial to the inheritance, as, in that 

 case, the cutting of sallows, maples, beeches, and thorns, those alleged 

 to be of the age of 33 years, but which were not timber either by the 

 general law or particular local custom. So likewise cutting even of 

 oaks or ashes, where they are of seasonable wood, i.e., where they are 

 cut usually as underwood, and in due course are to grow up again from 

 the stumps, is not waste." It is laid down in Co. Litt. 53 a, that 

 "waste properly is in timber trees (oak, ash, and elm, and these be timber 

 in all places), either by cutting of them down, or topping of them, or 

 doing any act whereljy the timber may decay. Also in countries where 

 timber is scant, and beeches or the like are converted to buildings for 

 the habitations of man or tlie like, they are all accounted timber : " and 

 that " cutting down of wittows, beech, birch, ash, maple, or the like, 

 standinfj in tlie defence and safecjuard of the house, is destruction." 



In PMJlips V. Smith, the only acts proved against the defendant Avere 

 cutting down for sale several 2)ollard willow trees, of a considerable 

 size, u'hicli grew on the side of a broolr, but were not shown to be of any 

 service as a support of the bank against the water, nor to be of any 

 protection to the farmhouse, and also some trivial injuries to the fences. 

 The willows were cut close to the ground, leaving the stools or butts, 



