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The next matter that by order offereth it selfe to your conference, is to treat of Wast done in a mans land: And for my more perfit apprehension of the thinges concerning that point, I will pre∣scribe vnto you certaine particulars, wherein you may imploy your trauell for my further instruction. First, of what things Wast may be committed. 2. What thing properly your Lawes censure, and determine to be wast.
3. What punishment by your lawes is to be in∣flicted vpon these that commit wast? You shall doe me great pleasure in vnfolding the secrecie of your knowledge hereof. And first to begin* 1.1 with the first, let me know of what things wast may be committed.
Wast may be committed in suffe∣ring* 1.2 the walles of houses, or closes to fall a 1.3. So if there be a wood which is thick with great tymber trees, which in Latin is called Saltus, or which is but thinly set with slender trees wher∣in hunters may ride vp and downe, which the Latinists do call Nemus, spoile or hauock made in such woods may be accompted wast b 1.4. But* 1.5 to cut wood in silua caedua which is apt to be cut is no wast, and therfore it is said apt to be cut, because it groweth easilie again. Neither doth wast seeme to be committed in silua pascua, if brush-wood, small wood, or vnderwood be cut for the better pasturage of the beasts that go vp∣on the soyle. Likewise wast may be committed in cutting down trees which grow sparsim, here & there in the land which is demised to farme: for this is wast in the land it selfe, because Ar∣borum non est seperatum corpus afundo. But this word Arbor extendeth by our Law very far, for it may be affirmed of Vines, which not∣withstanding by reason of the tendernes of them may seeme to obteine a middle nature betwixt a tree, and an hearbe. Likewise to iuie,
though that doe rather cleaue to trees, then participate the nature of trees: And the name of Arbor doth extende to reedes, and to wil∣lowes. But the cutting of some trees, that is the lopping or pruning of them may be more a∣uaileable for their growth, so that onelie their cutting downe, and not their cutting only shall be adiudged to be Wast. Such trees are named of vs Arbores caeduae: which may grow againe either by the same stocke, or by some other impes, which may be grafted vpon them. Such are the Cherie tree, the ashe, the medlar tree, the oake, the laurell, the alder tree, and the poplar tree c 1.6. But the cutting down of such trees may well be called wast, and is punishable by our Law. And to open the sluces of the riuer Nilus is sharpelie punished cc 1.7.
Our Law doth not in any of these things varie from yours.
Of all these things, vnlesse it be reedes, iuy, & the like things which do more ap∣proch to the nature of weedes, then of trees, we hold in our Law that wast may be cōmitted.
Well, then I pray you shew what may properly be tearmed Wast by your Law Anglonomoph. and for that purpose consider well of the points of the former speech of Co∣dicgnostes, who hath shewed promiscue, both of what things wast may be committed, and what may be said to be Wast.
Anglonomoph. I will by your pacience seue∣rally conferre the parcels of his discourse with the determination of our law concerning that which may properly be said to bee waste (for the other point will be thereby manifest,) as he hath before pronounced by their law. Waste may bee committed in the decay or demolish∣ment* 1.8 of an house: this likewise is waste by our law; therefore in an action of waste, 42. E. 3. the declaration was that the tenant had done wast in certain tenements demised vnto him by the predecessor of the plaintife for tearme of life, and the wast was assigned to bee in a chamber, a furnace, and a graunge: and the defendant said, that there was no chamber at the time of the lease made: but by the opinion of Cand. hee ought to haue said (nor at any time after) wherefore so hee did d 1.9. But the termor is not bound to repayre houses which were ruinous at the time of the lease made vnto him e 1.10. And if all the house in such case do happen to fall saue onely the postes, and the termor abateth the postes, this is not waste, because waste must be assigned in a house (or some like tenement) so it is if a house newly edified be abated, which house was neuer couered ee 1.11, (and therefore may not properly bee said to bee a house, as I take it by the ciuill law: for a house according to the ciuill law doeth consist of foundation, wall, and couer f 1.12.) And 38. E. 3. waste was as∣signed
in a graunge, which was worth but 4. S. and because it was of so small value, that none would hold it nor maintaine it, it was held to bee no waste g 1.13. Yet M. Fitzh. citeth a case out of 34. E. 3. that if waste be done by the warden to the value of 20. pence, this shal be adiudged waste, and the plaintife shall recouer gg 1.14. And the booke 14. H. 4. is, that if a man cutte trees, but to the value of three shillings 4. pence. This shall be adiudged waste h 1.15. But a wall or pale, which hath beene couered with thatch or tim∣ber, if the tenant suffer it to be discouered, this shalbe said to be waste i 1.16. But if a house become ruinous for default of some couering, at the time of the death of the auncestor, and after the tenant suffereth the house to be more rui∣nous, the heire may haue an action of wast for the late ruine, which happened after the death of the auncestor k 1.17. Neither is it sufficient in barre of a writ of waste of a house that the de∣fendant hath built a new house in lieu of that which is fallen, but the defendant must say that it is as much in length, and as much in latitude as the other was, or at least hee must say, that it is as profitable: but when a house is rui∣nous and decayed at the time of the lease of it made, and it afterwarde falleth, and the de∣fendant buildeth a newe, it is not necessarie that hee should make an other house of equall longitude or latitude l 1.18. And the necessitie of
building a house ought to come in question, as if the lessee haue great need of a stable: and if no house be built vpon the land at the time of the lease, the lessee may not cutte trees to make an house m 1.19. But if waste bee made by the kinges enemies or by tempest, the tenant shall not therefore bee punished by a writte of Waste n 1.20. Yet in such case a speciall coue∣nant will binde the tenant. And therefore it was adiudged 15. Elizab. that whereas the termor did couenant and agree pro se & exe∣cutoribus, to repayre and maintaine the hou∣ses, and to finde principall timber, which is decayed by the default of him or his execu∣tors, and dyeth, and the house is burnt in defaulte of the executors, that a writte of couenaunt in this case woulde lye agaynst the executors, and that dammages shoulde bee recouered de bonis testatoris, and not con∣dicionally, if there were none such, of their owne goodes: and yet this happened by ca∣sualtie o 1.21. But the reason thereof is giuen in an other place, Modus & conuentio vincant legem p 1.22. And 29. Henrici octaui, the lessee of a meadowe did couenaunt and agree to keepe and maintaine the bankes in good re∣paire, and the saide bankes were drowned & ouerflowed by high waters or sodaine floud, yet the lessee is bounde to repayre and main∣tayne them because of his couenaunt, but
according to the opinion of Fitzh. and Shelley, because the decay of the bankes was the acte of God, he ought to haue conuenient time to re∣paire them q 1.23. Now I will shew how and in what cases the cutting of wood & trees is wast by our law. It is cleare by our law, that the te∣nant may cut trees for the amendment of hou∣ses,* 1.24 and the reparation of them, but if the hou∣ses be decaied by the default of the tenant, the cutting of trees to amend them is waste r 1.25: but the lessee may not in any sort cut apple trees for the amendment of houses s 1.26. And 7. H. 6. it is said, that he shal not meddle with great timber∣woode without the assent of his lessor: other∣wise it is of seasonable wood which is but of the age of ten yeres or therabout t 1.27. But the cut∣ting of dead wood is not waste u 1.28: And the ter∣mor hath house-wood, hedge-wood, and fire∣woode belonging to his tearme of common right: and he may cut wood for that purpose x 1.29. But if hee cutte wood to burne where there is dead wood sufficient this is waste a 1.30. And it is not waste to cut seasonable wood which hath vsed to be cut euerie twentie yeares, or within* 1.31 that time b 1.32. And the cutting of thornes is no wast because they are not fit for timber c 1.33. Nei∣ther is the cutting of willowes waste, vnlesse they lie about the site of the mannor d 1.34. And the termor may cutte vnder-woode growing vnder the great trees, and the high wood, but
if there bee no high wood, or great trees there, he can not cut at all e 1.35. And whereas Codicgnost. hath said, that the lopping & pruning of some* 1.36 trees may be more auailable for their growth, & therefore the cutting of them is not wast, be∣cause they may grow by the same stocke or by some other imps grafted vpon it: In verie truth our lawe runneth with this streame. For as I haue shewed before, to cutte seasonable wood is no waste: but if certaine sprowtes or braun∣ches doe grow vpon the stocke, the cutting of these sprowtes or braunches or the destroying of them is wast f 1.37. And plantes which can not be conueniently sold, neither beare any fruite, yet (because of the possibilitie of the fructify∣ing of them) if they bee cutte downe, this is waste g 1.38.
Well, I pray you satisfie mee in this: If a man ought to keepe certaine bankes in repaire, whereby the land adioyning, and which he hath in farme, may be better kept & yeeld more profite, and hee doth not repaire these bankes, but suffereth the sea to ouerflow them, and so to make the lande a great deale worse, whether is this by your law accompted waste Anglonomophilax, according as Codicg∣nostes hath shewed of opening the sluces of Nilus.
By our law if such bankes be not repaired, whereby the land demised that
is adioyning is ouerflowed & made vnapt for* 1.39 present profite, this in our lawe is accompted waste h 1.40.
Well, now I pray you resolue me in this, whether is it lawfull for the termor to digge in the land demtsed, for water, mines, or treasure hid, or this shal be accompted wast, if hee doe it without the permission of the lessor.
He that commeth to land or to any other thing by an other mans graunt or* 1.41 demise can not vse the lande or that which is graunted, further then the graunt or demise be∣ing reasonably construed will permit. There∣fore if a man be seised of a stagne or pond sto∣red with fish, and he sell and the fish in the pond to a straunger, the grantee may not digge the land &c. to make a trench, because he may take the fish with nettes or other engines i 1.42. But if a man grant to me licence to make a trench from such a fountaine in his land to my mannor of Dale, and that I may put a conduit-pipe in the land to conuay the water to my mannor, if af∣ter the pipe bee stopped, I may dig in the land to amend the pipe k 1.43: because that is as it were implied in the graunt: but if a man plough vp meadowes demised vnto him, this is waste l 1.44. So if the termor doe alter woode into arable, this is wast, or arable into meadow, this is wast. For this is preiudiciall to the inheritance: for
the euidence concerning the lande serueth to proue an other thing m 1.45. And so it is if land bee ouerflowed for default of repayring bankes n 1.46: but of this I haue lately spoken, and therefore will rather apply other cases to the opening and explaning the reason hereof. The dig∣ging in the lande demised for claye, or for* 1.47 stone, or for coales shall bee said to bee waste o 1.48 for the reason abouesaid: and likewise because the soile by that meane becommeth worse p 1.49: & according to M. Fortescues report 20. H. 6. if the particular tenant haue not kept the water from the ground, so that it is made waste by the gro∣wing of rushes and other weedes, this hath bin adiuged to be wast, and the wordes of the writ were: Quòd permisit aquam terram illam inun∣dare,* 1.50 ita quòd deuenit iuncosa q 1.51. But 33. E. 3. the defendant iustified in a writte of waste because hee did cutte downe an elme tree in the place where the waste was assigned, and did make a ditch in that place to water cattell, which went vpon that ground, which was necessary, because the water was very lowe, and almost dryed vp in that place, & by that meane he de∣duced water out of the earth, and this was ad∣iudged a good answere r 1.52.
That which you haue said is to reason consonant, to our law correspondent: for as to your first case of the clearing or amending of
the conduit-pipes &c. Though it be in another mans ground, this in our law is not accomp∣ted iniurious s 1.53. But wee haue a rule in our* 1.54 lawe: that if a man ought to conuey water per subterraneos meatus, through certain chinkes or crauies of the earth in an other mans ground, he must not doe this by a leuill of stones, but with pipes of leade, because the other mans grounde is by stones more annoyed and em∣paired t 1.55. But for the improouing of ground from worse to better, is clearely permitted by our law. As to turne waste grounde into ara∣ble, or fennish ground into firme ground, this we accompt rather a benefite to the owner of the soyle, then an iniurie u 1.56. So it is, if a wood become arable x 1.57: but to destroy any thing in an other mans ground, or to digge a pitte, and so to alter the forme and nature of the soyle, and by that meane to make it worse is accoun∣ted of vs very iniurious, but to repaire an olde building, or to make some commodious addi∣tion, is not wrongfull, but beneficiall, because Non videtur nouum opus facere, sed vetus re∣ficere a 1.58.
Our lawe doth not withstand any of these assertions.
Well, now I pray you proceed* 1.59 to speake of the penaltie which hee is to suffer by your lawes that committeth waste.
Codicgn. By our Law he that in such case* 1.60 will denie the wrong done shall be punished with double damages: But if he iustifie, and it be found against him, with single b 1.61. But he that doth breake the sluces of Nilus, so that verie great iniurie is done, and to verie manie, he is burnt in the same place, where the fault was committed, in a fire of the height of twelue cubites, and his goodes and landes are confis∣cated, because it is crimen, quasi laesae Maiesta∣tis c 1.62.
Our Law in this doth not gainsay you.
By an action of Wast at our* 1.63 Law, the plaintife if it be found for him, shall recouer treble dammages d 1.64: and execution may be had by Elegit of the landes, which the defendant had at the time of the inquest ta∣ken e 1.65: and he shall recouer likewise the place wasted f 1.66.
I will put you to no more paines in this matter, but will discend to other things which haue not yet been discussed.
1. Diuision.
1. Of what things wast may be com∣mitted by the ciuill Law.
Gazalup. verb. rudera.
C. de ••un. pa. et Salluen. li. 11.
2. Cutting of wood in silua caedua by the ciuill Law is ••o wast.
ff. Arbo. furtim. caesa. l. 1. et l. vitem. et in gl. ff. de arbo. ceden. l. 1. §. arbo.
C. de Nili. agge. non rumpen. l. vnica.
3 The cōmon law agreeth with the ciuil that wast may be in the de∣cay of an house.
42. E. 3. 22.
12. H. 4. fol. 5 10. H. 7. 3. 12 H. 8. 1. 7. H. 6. 40.
40. Assis. pl. 22.
Spi. egeli. verb. aedes & domus.
38. E. 3. 7.
Fitz. N. B. 60. c.
14. H. 4. 11.
44. E. 3. 44. 10. H. 7. 21. 22. H. 6. B. 16. H. 7. per Fin. waste. 131.
2. Mari. Br. wast. 117.
22. H. 6. 18.
11. H. 4. 32.
43. E. 3. 6.
15. Eliz. 324. Dy.
28. H. 8. 19. Dy.
29. H. 8. 33. Dy. 35. H. 8. 56. Dy.
5 The tenant by the commō law may cut trees for the reparation of houses.
44. E. 3. 21. & 44. 11. H. 4. 32.
Temps E. 1. waste 122.
7. H. 6. 38.
Fitzh. N. B. 59. M.
21. H. 6. 50.
20. E. 3. waste. 32.
6 The commō law agreeth with the ciuill in the cutting of Silua caedua.
7. H. 6. 40. 11 H. 6. 1.
46. E. 3. 17.
40. E. 3. 15. 10. H. 7. 2. 12. H. 8. 1. 12. E. 4. 1.
40. E. 3. 25. 10. H. 7. 2.
7 The com∣mon law a∣greeth with the ciuill in tollerating the lopping of trees, which may be auail∣able for their growth.
5. E. 4. 102. 9. H. 6. 42. 11. H. 6. 1. 22. H. 6. 14
20. E. 3. waste. 32.
1 That both by the ciuill law and com∣mon law where land is empeired by the inundation of water this is wast. 3 Diuision.
20. H. 6. 1.
1 That by the common law he that com∣meth to land by an other mans graunt ought to vse it according to the graunt.
Perk. tit. Graunts. 23.
13. H. 8. 15.
20 H. 6. 1. 16. H. 7. wast. 131. Fitzh. N. B. 59. N.
29. H. 8. 35. Dy. Maleue∣rers. C.
20. H. 6. 1.
2 The digging for clay or cole in the land demised is wast by the common law.
2. H. 7. 14. 22. H. 6. 21. 9. H. 6. 42. 17. E. 3. 7.
22. H. 6. 18.
3 The suffe∣ring of the ground to be∣come rushie or weedie, by the common law is waste.
20. H. 6. 1. per Fortesc.
33. E. 3. Double plea. 9
l. 1. c. de quae duc. l. 11. & l. de cerni∣mus eo. ti. li. 2.
4 That the ci∣uil law agreeth▪ with the com∣mon law▪ in suffering and to amend con∣duit-pipes in another mans ground.
ff. de con∣trah. emp. l. si aquae duct.
c. de fund. patr. l. si. li. 11.
c. quod per noual. de verb. signif.
ff. de noua. l. 1. §. nouum. et §. si quis aedificium.
3. Diuision.
1. The pu∣nishment of wast by the Ciuill Law.
ff. de insti. l. 1. §. 1.
C. de ag∣ge. Ni non rump. l. v••. ••••.
2. The pu∣nishment of wast by the common Law.
Fitzh. nat. bre. 58. H.
17. E. 3. 5. 18. E. 3. 38. 31. E. 3. Exe∣cut. 66.
Stat▪ Glouc. cap. 6.