for the recovery of damages by the remainderman, after the injury is done. It has been held, however, that the statutes of Marlebridge and Gloucester concerning waste are a part of the common law, brought to this country from England. Whilst the timber is growing, it is part of the realty, and its destruction constitutes that kind of waste, the commission of which a court of equity will, upon petition, restrain. When once cut, the character of the property is changed; it has ceased to be a part of the realty, and has become personalty, but its title is not changed. It belongs to the owner of the land as much afterwards as previously, and he may pursue it into whosoever hand it goes, and is entitled to all the remedies for its recovery which the law affords for the recovery of any other personal property wrongfully taken or detained from its owner. And if he can not find the property, to enforce its specific return, he may waive the wrong committed in its removal and use, and sue for the value, as upon an implied contract of sale.

§ 2540. Injunction, when lies. Cutting, destroying, or removing growing timber is sufficient ground for an injunction, without any allegation of insolvency.8 A purchaser of standing timber can not obtain an injunction to stay waste committed by the cutting of the timber: 1. Because as to him the cutting of the timber is no waste, neither the remainder in fee simple nor in fee tail being vested in him; 2. Because being a mere purchaser of the timber, he has adequate relief at law, if it does not appear that the defendants are irresponsible.

§ 2541. Mining claims. The working of a mine is waste." The removal of gold from a mine is emphatically taking away the entire substance of the estate, and comes within that class of trespass for which injunctions are now universally granted,10

5 McCay v. Wait, 51 Barb. 225; see Calvert v. Rice, 91 Ky. 533; 34 Am. St. Rep. 240; Crothers v. Acock, 43 Mo. App. 318.

6 Parrott v. Barney, Deady's Rep. 405.

7 Halleck v. Mixer, 16 Cal. 574.

For forms of

8 Natoma Water & Mining Co. v. Clarkin, 14 Cal. 544; Silva v. Garcia, 65 id. 591; Duncome v. Felt, 81 Mich. 333. complaints for an injunction restraining waste, see post.

46

Injunction,"

9 United States v. Parrott, 1 McAll. 271; and see Gaines v. Mining Co., 30 N. J. Eq. 86.

10 Merced Min. Co. v. Fremont, 7 Cal. 317; 68 Am. Dec. 262; see, also, Henshaw v. Clark, 14 Cal. 465; Logan v. Driscoll, 19 id. 623;

when the injury threatens to be continuous and irreparable.11 It is no objection to an injunction in such case that the party may possibly recover what others may deem an equivalent in money. 12 Where a ditch has been excavated from the bed of a stream, and its water has been diverted through the same for mining purposes, a miner has no right to work a claim located above its head, after the ditch is dug, so as to mingle mud and sediment with the water, and injure the ditch, or fill it up, and lessen its capacity.18

13

§ 2542. Parties. The action for waste may be maintained against a guardian, tenant for life or years, joint tenant, or tenant in common of real property. It may be maintained by any person aggrieved.14 It has been held in Wisconsin, that under their statute, the action could only be maintained where there is a privity of estate; and that the doctrine of relation could only be applied for the protection of persons standing in some privity with the party who institutes the proceedings for the land and acquires an equitable claim or right to the title, and would not aid plaintiff in maintaining an action for waste.15

§ 2543. Removal of building. An injunction will not be granted at the suit of the landlord, against the tenant or his assigns, to restrain the commission of waste by the removal from

81 Am. Dec. 90; McLaughlin v. Kelly, 22 Cal. 212; People v. Morrill, 26 id. 337; More v. Massini, 32 id. 595; Hess v. Winder, 34 id. 270; Willard's Eq. Jur. 370.

11 Merced Mining Co. v. Fremont, 7 Cal. 317; 68 Am. Dec. 262; Consult Hill v. Taylor, 22 Cal. 191.

12 Hicks v. Michael, 15 Cal. 107.

13 Hill v. Smith, 27 Cal. 476. One of several tenants in common of a mine, who does not exclude his cotenants, may work the mine in the usual way, and extract ore therefrom, without being chargeable with waste, or liable to the other cotenants for damages, and an injunction will not be granted at their instance to prevent the working of the mine. McCord v. Mining Co., 64 Cal. 134; 49

Am. Rep. 686.

14 Cal. Code Civ. Pro., § 732.

15 Whitney v. Morrow, 34 Wis. 644. A tenant in possession, under a lease containing a clause conferring upon him the privilege of purchasing the demised premises, having failed to exercise such privilege within the time allowed, is liable for waste committed on the premises during his possession. Powell v. Dayton, etc., R. R. Co., 16 Oreg. 33; 8 Am. St. Rep. 256; and see Regan v. Luthy, 11 N. Y. Supp. 709. And equity may interfere and cancel a lease to prevent irreparable waste by tenants. Anderson v. Hammon,

the demised premises of a building erected by the tenant, if it appears that the landlord is not entitled to the reversion.16 But where the landlord is entitled to the reversion, the tearing down or destruction of the demised buildings by a tenant, unless authorized by the terms of the lease, is waste, and if threatened, will be restrained by injunction. And a provision in a lease authorizing a tenant to alter and repair, does not authorize him to tear down or destroy.17 But it is not waste in a tenant for life to cut down timber trees for the purpose of making necessary repairs on the estate, and to sell them and purchase boards with the proceeds, provided it is the most economical mode.18

§ 2544. Triple damages. The statutes of most all the states, including California, provide that in an action for waste the judgment may be for triple damages.19 At common law there is no forfeiture of estate for years for the commission of waste, but it was made so by statute of 6 Edward I, and it was expressly confined to the place wherein the waste was committed; but the statute of California confines the remedy to triple damages.20 If the court refuse to triple the damages, the remedy is on appeal, and not by mandamus.21 When triple damages are given by statute, it must be expressly inserted, and conclude, to the damage of the plaintiff, against the statute.22 This rule, however, does not apply to Justices' Courts.23

2545. Waste defined. "Waste," says Mr. Justice Blackstone, "is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee simple or fee tail."24 It 19 Oreg. 446; 20 Am. St. Rep. 832. A contingent remainderman, before the contingency happens, may maintain an injunction to restrain waste by the life tenant. University v. Tucker, 31 W. Va. 621; see Lawry v. Lawry, 88 Me. 482.

16 Perrine v. Marsden, 34 Cal. 14.

17 Davenport v. Magoon, 3 West Coast Rep. 328.

18 Loomis v. Wilbur, 5 Mason, 13.

19 Cal. Code Civ. Pro., §§ 732, 733.

20 Chipman v. Emeric, 3 Cal. 283.

21 Early v. Mannix, 15 Cal. 149.

22 Chipman v. Emeric, 5 Cal. 239; but see contra, Robinson v. Kinne, 1 N. Y. Sup. Ct. 60; Carris v. Ingalls, 12 Wend. 70.

23 O'Callaghan v. Booth, 6 Cal. 66.

4 Sedg. on Dam. 146; see, also, the common law with regard to waste, expounded by Lord Chief Justice Eyre, in Jefferson v.

is waste to cut timber trees and sell them in exchange for firewood, but not to use for posts on the premises.25 In this country no act of a tenant constitutes waste, unless it is or may be prejudicial to the inheritance, or to those who are entitled to the reversion or remainder.26

§ 2546. When action lies. The action for waste lies, even after assignment of the reversion.27 An action of waste is not maintainable against a tenant by elegit on the principles of the common law.28 The action may be maintained under the California Code of Civil Procedure, § 732, for commissive or permissive waste.29 But a tenant at will is not liable; though if he commit voluntary waste he is liable, not as tenant, but as a trespasser; and for permissive waste, as for failure to keep premises in repair, he was never liable.30

§ 2547. When injunction will not be dissolved. An injunction will not be dissolved restraining defendants from felling trees, where the question of boundary is in dispute; especially where the plaintiff's bond will fully protect them for any delay, if it should turn out that they have any right.31

A. B. was the owner in fee of the following-described premises [description of premises].

Bishop of Dunham, 1 Bos. & Pul. 120; and Story's Eq. Jur., § 909. To constitute waste, the injury to real property must be of a permanent character, some unauthorized act of the tenant which does a lasting injury, or tends to destroy its identity. Davenport v. Magoon, 13 Oreg. 3; 57 Am. Rep. 1; Stewart v. Wood, 48 Ill. App. 378.

25 Padelford v. Padelford, 7 Pick. 152; see, also, Clark v. Holden, 7 Gray, 8; 66 Am. Dec. 450; Cannon v. Barry, 59 Miss. 289.

26 Pynchon v. Stearns, 11 Met. 304; 45 Am. Dec. 207.

27 Robinson v. Wheeler, 25 N. Y. 252.

28 1 Co. Litt. 54; 3 Co., Part 6, 37; Scott v. Lenox, 2 Brock. Marsh, 57.

20 Parrott v. Barney, Deady's Rep. 405.

31 Buckalew v. Estell, 5 Cal. 108.

II. That the said premises were at the time subject to the lien of a judgment recovered by one C. D. against E. F., in an action in the Superior Court of the county of

....

in this state, which judgment was docketed in said county [or state the county], and that the sheriff of said county, by virtue of an execution issued thereon, sold the same.

III. That at such sale the plaintiff became a purchaser, and the sheriff executed and delivered to him a certificate of the said sale, and on the ........ day of .....

18.., and before this action, executed and delivered to plaintiff a deed of the premises pursuant to the said sale thereof, and the plaintiff paid the purchase money therefor.

IV. That intermediate the sale and delivery of the deed, the defendant being in possession [allege act of waste and damage, against form of the statute].32

The plaintiff complains, and alleges:
I. and II. [As in preceding form.]

III. That at such sale the defendant became the purchaser, and the sheriff executed and delivered to him a certificate of the sale thereof.

IV. That afterwards, and before the expiration of six months. the plaintiff redeemed the same from said sale by paying the necessary amount therefor, and on the ...... day of

18.., and before this action, the sheriff executed and delivered to the plaintiff a deed of the premises pursuant to the sale and redemption.

V. [Allege acts of waste, intermediate sale and redemption, against the form of the statute.]

The plaintiff complains, and alleges:

I. That at the time of his death, one A. B. was seised in fee

of [describe the premises].

32 The deed and payment should be alleged. Farmers' Bank of Saratoga v. Merchant, 13 How. Pr. 10.

Vol. II-29