Rogers v. Atlantic, G.&P. Co.

Decision Date05 January 1915
Citation213 N.Y. 246,107 N.E. 661
PartiesROGERS v. ATLANTIC, G. & P. CO.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Elizabeth M. Rogers against the Atlantic, Gulf & Pacific Company. From a judgment of the Appellate Division (152 App. Div. 916,137 N. Y. Supp. 1140) affirming a judgment on a verdict for plaintiff, defendant appeals. Affirmed.

Charles Irving Oliver, of Albany, for appellant.

Erskine C. Rogers, of Hudson Falls, for respondent.

MILLER, J.

[1] The plaintiff, a life tenant, has recovered a judgment for all of the damages, both to the life estate and to the inheritance, caused by a fire set by the defendant, a canal contractor, on adjoining lands of the estate, and negligently allowed to spread to the lands of the plaintiff. The single question involved in this appeal is whether the recovery should have been limited to the damages to the life estate. The right of the plaintiff to recover all of the damages has thus far been maintained on the ground that she is liable to the remaindermen for any injury to the inheritance not caused by them, the act of God, or the public enemy. No case is known in which a tenant has been subjected to such a rule of liability, and the proposition is so startling as to demand examination before it is made the ground of a decision by us.

The text-writers, generally, state the rule broadly that the tenant is liable to the reversioner for all injuries amounting to waste, by whomsoever committed, even by a stranger, the only exceptions noted being injuries caused by the act of God, the public enemy, or the reversioner himself, and the obligation of the tenant if frequently likened to that of a common carrier. See 4 Kent, *77. But Chancellor Kent says:

‘Perhaps the universal silence in our courts upon the subject of any such responsibility of the tenant for accidental fires is presumptive evidence that the doctrine of permissive waste has never been introduced, and carried to that extent, in the common-law Jurisprudence of the United States.’ 4 Kent, *82.

And the text-writers, generally, concur in the doctrine that the tenant is not liable for accidental fires. 1 Washburn on Real Property, 116; 1 Cruise's Digest (Greenleaf Edition), 139, and note; Taylor's Landlord and Tenant, § 196. Obviously the word ‘waste’ in the broad, general statements above referred to is used in the legal, not in the popular, sense.

This is an action for negligence against a stranger both to the life estate and the remainder, and it may well be doubted whether the doctrine of waste has any application at all to it. Waste is thus defined by Bouvier:

‘Spoil or destruction done or permitted to lands, houses, or other corporeal hereditaments, by the tenant thereof, to the prejudice of the heir or of him in reversion or remainder. Permissive waste consists in the mere neglect or omission to do what will prevent injury; as to suffer a house to go to decay for the want of repair. And it may be incurred in respect to the soil, as well as to the buildings, trees, fences, or live stock on the premises. Voluntary waste consists in the commission of some destructive act; as in pulling down a house or ploughing up a flower garden.’ ‘There are two kinds of waste, viz., voluntary or actual, and negligent or permissive. Voluntary waste may be done by pulling down or prostrating houses, or cutting down timber trees; negligent waste may be suffering houses to be uncovered, whereby the spars or rafters, planches or other timber of the house are rotted.’ Bacon's Abridgment, vol. 10, p. 422.

In the popular sense, any injury may be waste, but it is not waste in the legal sense, unless caused in such manner as to be within the legal definition of either commissive or permissive waste.

The rule contended for is based on Lord Coke's interpretation of two English statutes passed in the thirteenth century, the statute of Marlbridge, 52 Henry III, c. 24, and the statute of Gloucester, 6 Edward I, c. 5. The former provided:

‘That fermors, during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of anything belonging to the tenements that they have to farm, without special license had by writing of covenant, making mention that they may do it, which thing if they do, and thereof be convict, they shall yield full damage, and shall be punished by amerciament grievously.’

The latter provided:

‘That a man from henceforth shall have a writ of waste in chancery against him that holdeth by law of England, or otherwise for a term of life, or for a term of years, or a woman in dower; and he which shall be attainted of waste shall lose the thing that he hath wasted, and moreover shall recompense thrice so much as the waste shall be taxed at.’

Lord Coke construed those statutes as applying to permissive waste. 2 Inst. 145, 303. But the English cases at least raise a doubt on the point, and there seems to be a distinction between tenancies for years and for life. See Jones v. Hill, 7 Taunt. 393; Harnett v. Maitland, 16 Mees. & W. 257; Yellowly v. Gower, 11 Exch. 274; Powys v. Blagrave, 4 De Gex, M. & G. 448; Woodhouse v. Walker, 5 Q. B. D. 404 (1880); Davies v. Davies, 38 Ch. Div. (L. R. 1888) 499; Matter of Cartwright, Avis v. Newman, 41 Ch. Div. (L. R. 1889) 532. In the last case Kay, J., said:

‘Lord Coke's words only include permissive waste where there is an obligation to repair.’

He further said:

‘Since the statutes of Marlbridge and Gloucester there must have been hundreds of thousands of tenants for life who have died leaving their extates in a condition of great dilapidation. Not once, so far as legal records go, have damages been recovered against the estate of a tenant for life on that ground . To ask me in that state of the authorities to hold that a tenant for life is liable for permissive waste to a remainderman if to my mind a proposition altogether startling.’

Bacon's Abridgment contains several pages of examples of actionable waste. See volume 10, pp. 422 to 434. Also see Viner's Abridgment, vol. 22, p. 435 et seq. Neither there, nor anywhere in the books, have I been able to find a case of waste instanced in which the injury was caused by the negligent act of a stranger to the estate, though it has been assumed in some cases that such an injury would amount to waste. Lord Coke gives two reasons for allowing the reversioner to recover of the tenant for waste commited by a stranger:

(1) ‘For it is presumed in law that the former may withstand it’ (2 Inst. 145, 146); and (2) ‘for he in the reversion cannot have any remedy but against the tenant’ (2 Inst. 303).

It may be open to some question whether by ‘stranger’ he did not mean the assignee of the tenant, against whom he said that the heir could not maintain an action for waste. 2 Inst. 300. But, at any rate, it is plain that under that head he referred to voluntary, not permissive, waste. The Court of Chancery did not interfere to prohibit permissive waste. In Lord Castlemain v. Lord Craven, the master of the rolls said:

‘But, as to repairs, the court never interposes in case of permissive waste, either to prohibit or give satisfaction, as it does in case of willful waste.’ 22 Vin. Abr. 523.

Certainly there is no basis for any presumption that the tenant could have prevented such an injury as was done in this case. One of the reasons given for likening the liability of a tenant to that of a common carrier is that it is imposed to prevent collusion. Attersollv. Stevens, 1 Taunt. 183, 198. That reason cannot apply with any force except to cases of voluntary waste. Lord Coke does except the case of injuries done by the enemies of the king, and by tempest, lightning, and the like, but in that connection he also instances a case in which it was adjudged:

‘That if thieves burn the house of tenant for life, without evil keeping of lessees for lives fire, the lessees shall not be punished therefor in an action of waste.’ 2 Inst. 303.

In Halsbury's Laws of England (volume 18, p. 499) it is said:

‘Lessees for years, or from year to year, or for any other period, are liable for voluntary waste, whether committed by themselves or any other person, for, if committed by another, it is their duty, and they are presumed to be able, to withstand it .’

The case in 1 Taunton, supra, is the one generally cited as the leading case in support of the proposition that the tenant is liable for waste committed by a stranger, but that was a case of voluntary waste, the removal of clay.

Even assuming that by the rule of the ancient common law an injury caused by the negligent act of a stranger both to the estate for life or years and to the reversion or remainder amounted to waste, for which the tenant for life or years was responsible, the reasons for the rule given by Lord Coke either no longer exist or do not apply to the facts of this case. The ancient common-law forms of action have been abolished, and the impediment of the common law against the maintenance of an action for waste by reversioner or remaindermen in case there was an intervening estate (2 Inst. 301; Coke upon Littleton, vol . 3, p. *243) was removed in this state by chapter 246, § 47, of the Laws of 1811, which provided:

‘That it shall and may be lawful for any person or persons seised of an estate in remainder or reversion, to maintain an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or for years.’

It may be of interest to note that for some reason that provision was apparently concealed in the Supply Bill. It was substantially re-enacted by 1 R. S. 749, § 8, and is now section 1665 of the Code of Civil Procedure. It is still undoubtedly true that contingent remaindermen, possibly persons not in being, may not maintain the action, but that is because their estate is contingent, and is not due to any of the impediments of the ancient common law.

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