Waste brought against a tenant for term of years for the cutting down of one hundred oaks and in allowing the wood to lie unenclosed so that animals have eaten the shoots of the said wood so that they have ceased to grow.
Danby. It was not the practice in such cases until recently to count in this way but to count generally that he has felled the trees and destroyed the underwood and the shoots; no more than one would mention it in the count if it was a stranger who came on to the land and felled the wood; but it is now the practice to count thus about ‘allowing’.
MARTIN, J. It is a good practice for if he counts generally in this case and the other plead ‘no waste committed’ the lay men will perhaps find that none was committed.
Danby. You will show in evidence to the inquest the whole state of things and if it is so found it will be adjudged waste. And one time in the Chancery it was found by an ex officio inquisition that the lands and tenements contained in the verdict had been given to one in tail and that he after whose death the inquisition was taken had died seised and that by the permission of the tenant in tail and the verdict was held good because notwithstanding that it was found that he died seised of a good estate for each man who dies seised it is by my permission because it is my fault to allow them seisin of their own land.
Rolf. You are not entitled to bring action because we say in respect of the oaks that they are a crop and we say that all the wood growing in this wood which has been leased for a life term or a term of years has always been lopped at the age of twenty years or less as a crop. And since it is of the age of twenty years he lopped it as a crop.
Judgment.
Fulthorpe. Oaks cannot be described as a crop to lop at a certain age; and so we ask for judgment on his own admission and ask that he be convicted of waste.
Rolf. We have alleged that this has always been the usage for them to be felled at that age, and thus we have committed no waste etc.
Fulthorpe. You have not alleged that the custom of such a hundred or county within which the wood lies is such and so the custom you allege is not to the purpose.
MARTIN, J. There is no need to say more. In some places that which is called high timber is only croppable wood and underwood and vice versa according to whether timber if plentiful or not. For where there is great plenty of wood great oaks of the age of twenty years or below are customarily lopped as croppable wood but where there is a scarcity of wood it is not customary to lop it as croppable timber. So if it has not been the usage to cut it as cultivated timber show this to the court because there can be cultivated timber and oaks called ‘wranlons’ which will not become timber but are good only for burning and it is not adjudged waste and in some places it is so; and thus etc.
And then MARTIN, J. ordered Rolf to plead in respect of the shoots.
Rolf. As to them we tell you that our servants when they carted away wood negligently left the gates to the wood open and animals entered and ate the shoots but they grew back and we committed no other waste.
Fulthorpe. We ask that he be convicted on his own admission because if the animals have eaten the shoots they will never afterwards become timber but only shrubs.
Rolf (maintaining our claim that the animals entered the wood by the negligence of our servants and ate the shoots and they grew again afterwards) by way of plea we say no waste committed.
MARTIN, J. If in your protestation you admit waste the plaintiff will be able to take advantage of this as much as if you had admitted it in your plea; and so etc.
And then Rolf. No waste committed in the manner etc., as we are ready etc.
Danby. Nothing will be entered on the roll except generally ‘no waste committed’.
And so they pleaded thus ‘Ready etc. and the others to the contrary’.
And as to the oaks the opinion of the whole court was that Rolf could not have justified the lopping as of a crop unless he had said they were of the age of twenty years because if they were over the age of twenty years it is not a croppable wood.
Citations:
[1432] [Co. Litt. 53a (i) and Viner 438, no. 10]
Jurisdiction:
England and Wales
Cited by:
Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 06 May 2022; Ref: scu.196963