One N brought an action of waste against J, suggesting that he had cut down certain trees etc. And the defendant pleaded that he had committed no waste. Subsequently at nisi prius in the county he gave in evidence that the plaintiff had leased him a messuage with certain lands for a term of years by a deed and had granted to him that he might cut down trees to repair the house; and he also showed that the house was ruinous at the time of the lease and how he had cut down certain trees to repair it. And the plaintiff demurred on this evidence. And subsequently this was argued in the Common Bench. And
BROOKE, J. said that where one pleads the general issue in detinue or trespass or similar actions and then gives special matter in evidence which is in discharge of the action this evidence is not good nor will it support this issue and if the plaintiff demur on this evidence it is peremptory to the defendant. As for example if in debt he pleads that he owes him nothing and they join issue on this and the defendant gives in evidence a release made to him by the plaintiff he does not discharge his action in accordance with the evidence by this evidence. So too in trespass, if he pleads not guilty and gives in evidence a release; the same in battery if he pleads not guilty and gives in evidence that he acted in self-defence; the same in maintenance, if he pleads not guilty and gives in evidence a lawful maintenance; the same in an action for poaching, if he pleads not guilty and gives in evidence a licence; the same in an appeal, if he pleads not guilty and shows how he was sheriff and was carrying out his duties, or that he was a forester and killed him because he was fleeing and would not surrender. So also in waste if he pleads ‘no waste committed’ and shows that he cut down the trees to repair the house and so he has done here. But where a special evidence shows that he himself has title to the thing, that is a good evidence and will support the issue. As in the case of trespass for entering the land, if the defendant pleads not guilty and gives in evidence a lease of the same land; or in the case of trespass for carrying off goods the defendant pleads not guilty and gives in evidence a gift of them; so in waste to plead ‘no waste committed’ and to give in evidence things that show it was not waste, as where a house was burned by enemies or by lightning or that it was ruinous at the time the lease was made and fell down as a result or that a house or trees fell down as a result of wind or storm.
Then as to whether this is to be called waste and it seems not for he shows that the house was ruinous at the time the lease was made and thus he could well cut down trees to repair it. And this was not to the disinheritance of the lessor because it was to repair the house for otherwise it would decay. But if the house was rotten or ruinous at the time of the lease and the lessee agreed to repair all the houses on the land then by that deed he is bound to maintain and support them and otherwise an action of waste lies against him and he can take trees for this and it is certainly justifiable. For by the Common Law where the lessee is bound and charged with repairs and he may take trees or other necessary things such as stones that are on the land for repairs. And so at Common Law the lessee will have heybote, ploughbote, housebote and hedgebote on the land for necessary use even though that is not expressed in the lease. (This ALL THE JUSTICES agreed). But if he took more than is necessary then he will be punished in waste. And if the house is ruinous at the time of the lease or rotten or consumed and collapses within the term no action lies for this waste for the lessee is not bound to repair unless he agrees this, but he may cut trees and repair with them and justify this in an action of waste. But if the lessee of a park allows the park fence to decay to the point that the park is no longer enclosed an action of waste does lie in respect of a wall or a hedge that is ‘quickset’ and a fortiori if the lessee destroys it, as also if he allows the house to fall into decay or cuts great trees and sells them or converts them to his own use. So too if he himself burns down the house even if this is against his wishes as where others destroy or burn it an action lies. Again if the house is sufficiently repaired but burned by the king’s enemies or by lightning that is no waste. So in this case it is not waste because he did this by virtue of his lease and it was also ruinous at the time of the making of the lease and he might cut down trees at Common Law and it is justifiable. But because he did not plead justification nor plead this is in bar he has lost the advantage of this and the plaintiff will recover.
POLLARD AND ELYOT, JJ. argued like Brooke in effect.
BRUDENEL, J. If one has special matter to plead in bar but takes the general issue he may not give special matter in evidence and will never have any advantage from this and that is if the evidence is contrary to the issue as here where he pleaded ‘no waste committed’ and showed in evidence that he had committed waste but for such a purpose; now he will have no advantage of this. As if someone gives me licence to commit waste and then makes a lease to me and brings a writ of waste against me I may plead this matter but if I take the general issue I will never have advantage of this matter. Then as the other point, it seems that it is waste but not punishable. As where the reversioner cuts down trees it is waste because it is prejudicial to the inheritance but it is not punishable. So if the lessor ought to repair the house and allows it to decay it is waste but not punishable; but if the lessee is obliged to repair it then it is waste. As cutting down willows is not waste if they are growing in one place but if they are within view of a manor to shield it from the wind or on a bank to support the bank then it is waste. But in this case it was waste but justifiable. For if the lessor agrees to repair a house and refuses to do so the lessee can do so and keep back as much money as is needed and if there are trees growing there he can cut them down and use them in repair (which was agreed). But here because he has not shown this he has lost the advantage of it.
And the plaintiff had judgment to recover.
Citations:
[1520] [Co. Litt. 53a (c)]
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: 25 November 2022; Ref: scu.196993