104 Wis. 7 | Wis. | 1899
The following opinion was filed July 3, 1899:
Our statutes recognize waste, and provide a remedy by action and the recovery of double damages therefor ’(Stats. 1898, sec. 3170 et seg.); but they do not define it. It may be either voluntary or permissive, and may be of houses, gardens, orchards, lands, or woods (Id. sec. 3171); but, in order to ascertain whether a given act constitutes waste or not, recourse must be had to the common law as expounded by the text-books and decisions. In the present case a large dwelling house, expensive when constructed, has been destroyed, and the ground has been graded down, by the owner of the life estate, in order to make the property serve business purposes. That these acts would consti
These recent judicial utterances in this court settle the general rules which govern waste, without difficulty, and it may be said, also, that these rules are in accord with the general current of the authorities elsewhere. But, while they are correct as general expressions of the law upor> thesubject, and were properly applicable to the cases under consideration, it must be remembered that they are general rules only, and, like most general propositions, are not to be accepted without limitation or reserve under any and all circumstances. Thus the ancient English rule which prevented the tenant from converting a meadow into arable land was early softened down, and the doctrine of meliorating waste was adopted, which, without changing the legal definition of waste, still allowed the tenant to change the course of husbandry upon the estate if such change be for the betterment of the estate. Bewes, Waste, 134 et seq., and eases cited. Again, and in accordance with this same prjn-
These familiar examples of departure from ancient rules will serve to show that, while definitions have remained much the same, the law upon the subject of waste is not an unchanging and unchangeable code, which was crystallized for all time in the days of feudal tenures, but that it is subject .to such reasonable modifications as may be demanded by the growth of civilization and varying.conditions. And so it is now laid down that the same act may be waste in one part of the country while in another it is a legitimate use of the land, and that the usages and customs of each community enter largely into the settlement of the question. Tiedeman, Eeal Prop. (2d ed.), § 73. This is entirely consistent with, and in fact springs from, the central idea upon which the disability of waste is now, and always has been, founded, namely, the preservation of the property for the benefit of the owner of the future, estate without permanent injury to it. This element will be found in all the definitions of waste, namely, that it must be an act resulting in permanent injury to the inheritance or future estate.
There are no contract relations in the present case. The -defendants are the grantees of a life estate, and their rights may continue for a number of years. The evidence shows that the property became valueless for the purpose of residence property as the result of the growth and development of a great city. Business and .manufacturing interests advanced and surrounded the once elegant mansion, until it stood isolated and alone, standing upon just enough ground, to support it, and surrounded by factories and railway tracks, absolutely undesirable as a residence and incapable of any use as business property. Here was a complete change of •conditions, not produced by the tenant, but resulting from -causes which none could control. Can it be reasonably or logically said that this entire change of condition is to be •completely ignored, and the ironclad rule applied that the tenant can make no change in the Uses of the property because he will destroy its identity ? Must the tenant stand b}r and preserve the useless dwelling-house, so that he may .at some future time turn it over to the reversioner, equally useless ? Certainly, all the analogies are to the contrary. As we have before seen, the cutting of timber, which in England was considered waste, has become in this country an act which may be waste or not, according to the surrounding conditions and the rules of good husbandry; and the same rule applies to the change of a meadow to arable land. The changes of conditions which justify these departures from early inflexible rules are no more marked nor •complete than is the change of conditions which destroys
It is certainly true that a case involving so complete a change of situation as regards buildings has been rarely, if ever, presented to the courts, yet we are not without authorities approaching very nearly to the case before' us. Thus, in the case of Doherty v. Allman, 3 App. Cas. 709, before cited, a court of equity refused an injunction preventing a tenant for a long term from changing storehouses into dwelling-houses, on the ground that by change of conditions the demand for storehouses had ceased and the property had become' worthless, whereas it would be productive when fitted for dwelling-houses. Again, in the case of Sherrill v. Connor, 107 N. C. 630, which was an action for permissive waste against, a tenant in dower, who had permitted large
In the present case this consideration was regarded by the trial court as controlling, and we are satified that this is the right view. This base is not to be construed as justifying a tenant in making substantial changes in the leasehold property, or the buildings thereon, to suit his own whim or convenience, because, perchance, he may be able to show that the change is in some degree beneficial. Under all ordinary circumstances the landlord or reversioner, even in the absence of any contract, is entitled to receive the property at the close of the tenancy substantially in the condition in which it was. when the tenant received it; but when, as here, there hasoccurred a complete and permanent change of surrounding conditions, which has deprived the property of its value and usefulness as previously used, the
By the Oourt.— Judgment affirmed.
A motion for a rehearing was denied September 26, 1899.