Jackson ex dem. Thomas v. Tibbits , 3 Wend. 341 ( 1829 )

By the Court,

Makoy, J.

The very term waste implies the idea of detriment to the landlord or reversioner. The party who recovers for it, when he brings his action of waste, not only recovers the locum devastum, but treble damages. Without damage, it would seem that there could be no waste: indeed, Blachstone defines waste to be whatever does a lasting damage to the freehold or inheritance. (2 Black. Comm. 281. See, also, Bac. Abr. tit. Waste c.) It cannot be pretended that the tenant has committed waste in this case by converting the premises to purposes different from those for which they were demised.

If the action had been under the statute for waste, and the defendant had pleaded no waste committed, the jury would not have been authorized to find a verdict for the plaintiff, unless they had been satisfied that the acts complained of as waste were prejudicial to the estate of the plaintiff. The evidence would not, I think, have warranted such a finding, and if not, the judge erred in instructing the jury that the acts complained of, being done without the permission of the lessor, worked a forfeiture of the defendant’s interest. At least, he should have submitted the testimony to the jury to determine whether the acts done were in fact prejudicial to the plaintiff’s property in the premises.

But on the assumption that the acts did amount to waste, the right of the tenant to the whole premises was not forfeited. The forfeiture would not extend beyond the house, and 1 have very great doubt whether it would include the whole of it. Sheppard says, “ That the plaintiff in this suit (action of waste) if he recover, shall recover treble damages and the place wasted, that is, if it be the whole house, the whole house ; if it be one or two rooms sparsim, those rooms; if it be in a close, so much of the close as is wasted.” (Faithful Counsellor, 553. Lord Coke says, “If waste be done in houses, so many rooms shall be recovered wherein there is waste done; but if waste be done sparsim throughout, all shall be recovered.” (Co. Litt. 54 a.)

It is not necessary to examine whether the facts warrant the inference that the plaintiff waived the forfeiture, if it was ever incurred, or assented to the alterations relied on .as evidence of waste. The proof did not, in my opinion, warrant the position taken by the judge in his charge to the jury, and I am therefore for granting a new trial.

New trial granted.