John de Hull and Maud his wife brought a writ of waste against H. Hadenham and assigned the waste in buildings, namely the knocking down of a hall, chamber, cowshed and grange, and in lands in the digging for ironstone and coal, and in gardens and woods etc.
Pulteney. We tell you that by this deed they leased to us the buildings where the waste is alleged on terms that allowed us to dispose of the buildings there except for a chamber and a hall at the end of the chamber and that has been kept in repair; judgment if they are receivable against their own deed. As to the grange and cowshed there were none when the lease was made and none thereafter, as we are ready etc. As to the waste in respect of the land we tell you that they leased to us certain acres of land where there was a mine for ironstone and coal, with all the profits arising therefrom; judgment whether they can be received etc. As for eighteen oaks and an ash he granted us them by his deed etc. that we might fell them for the repair of a mill etc.; judgment. As to waste in the wood that is a place where wood was growing and adjacent to the garden, he granted us permission by this deed to cut it down.
Gaynesford. As for the grange and the oxshed whereas they say there were none etc. that is tantamount to saying no waste committed (and this was not allowed).
And so Gaynesford said that he wished to prove that there were some etc. and that these were wasted and the same went for the chamber which they said was in good repair, ready to prove etc.
And as to the waste in respect of the remainder of the buildings they have not denied the knocking down and sale which is a matter of disinheritance and he does not have express warranty by our deed to do this but only to make his profit, which Common Law would give him even if he did not have it by this specialty. So we ask for seisin by virtue of his acknowledgment and our damages. And as to the waste in respect of the land he has not denied that he has dug and sold and that amounts to disinheritance and he does not have warranty for that by our deed but only to make his profit, which cannot be interpreted so broadly but only to take his necessary requirements and not to make a sale which amounts to permanent disinheritance. Judgment.
Thorpe. Then is this your deed?
SHARESHILL, J. You must both be agreed and thus we assume that you are.
Thorpe. If I lease you a pond and a fishery with all the profits etc. are you not allowed to fish and sell the fish?
R. Thorpe. For that there lies no action of waste unless they sues; but if you lease me a wood with the profits am I allowed to cut down and sell? (Implying not)
Thorpe. It appears that you can for you may cut for your own benefit and erect buildings otherwise than in the messuage to which the wood is appendant and so you can give and sell.
R. Thorpe. Certainly not you will have nothing other than what common right gives you for if you take that broadly ‘all kind of profit’ it follows that you might alienate.
Thorpe. We ask for judgment as he has admitted that at the time of the lease there was a mine for stone and coal and this was leased to us with the profits by his own deed; and as we ask for judgment if he is receivable against his own deed.
SHARDLOW, J. What profit can one have from a mine when it is leased to one other than by selling etc.?
Thorpe. He may have his necessary requirements without making any sale of gift.
Citations:
[1343] [Co.Litt. 53b (p)]
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.196927