The plaintiff counted that the defendant had committed waste in certain land that he held by curtesy of his inheritance and assigned as waste allowing a sewer within the land not to be maintained so that so much meadow being part of the land is flooded, to the disinheritance etc.
Markham. That cannot be waste for the banks of the sewer can be repaired and then the meadow will be as good as before and so there is no disinheritance of the plaintiff.
NEWTON, J. If the sea breaks through the sea dikes and floods my meadow so that I cannot get it back that will be accounted waste; and the same reasoning applies where it is done by fresh water and so this waste seems to be well assigned.
Fortescue. Even if the banks are repaired if the water has caused my meadow to become rushy that is waste; and so etc.
Portington. The writ is that per inundacionem et loturam the meadow has become wasted and that proves that the waste etc. for if the land had been arable and not meadow and had been well cultivated and well looked after if the water per inundaciones et loturam had washed away and voided this good land so that nothing remained except the ‘tough clay’ that would have been waste; and so here and therefore etc.
AYSCOUGH, J. This waste is surprisingly assigned.
Portington. Even if the meadow by repair of the banks is able to grow again and become as good as before that cannot be for a long time because if a wood is wasted that can grow as well as before but that cannot be for such a long time it will be accounted waste; here too.
Markham. We may have advantage of that afterwards as much as belongs because whereas he has supposed by his count that the waste was committed in lands held by curtesy after the death of our wife we tell you that our wife never had anything in these lands after the marriage.
Portington wished to have demurred on the plea because it was no more than an assertion. So Markham said that one Ellis enfeoffed him without him ever having anything by way of curtesy.
Citations:
[1441] [Co. Litt. 53b (r) and Viner 439, nos. 33, 34]
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.196965