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THE

CASE OF IMPEACHMENT OF WASTE.

ARGUED

BEFORE ALL THE JUDGES IN THE EXCHEQUER CHIAMBER.

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Tue case needs neither repeating nor opening. First, That if that clause should be taken in The point is, in substance, but one, familiar to be the sense which the other side would force upon put, but difficult to be resolved ; that is, Whether, it, that it were a clause repugnant to the estate npon a lease without impeachment of waste, the and void. property of the timber trees, after severance, be Secondly, That the sense which we conceive not in him that is owner of the inheritance ? and give is natural in respect of the words; and

The case is of great weight, and the question for the matter agreeable to reason and the rules of great difficulty: weighty it must needs be, for of law. that it doth concern, or may concern all the lands And, lastly, That if the interpretation seem in England; and difficult it must be, because this ambiguous and doubtful, yet the very mischief question sails in confluentiis aquarum, in the itself, and consideration of the coinmonwealth, meeting or strife of two great tides. For there is ought rather to incline your lordships' judgment a strong current of practice and opinion on the to our construction. one side, and there is a more strong current, as I My first assertion therefore is, that a timber conceive, of authorities, both ancient and late, on tree is a solid parcel of the inheritance; which the other side.

And, therefore, according to the may seem a point admitted, and not worth the reverend custom of the realm, it is brought now labouring. But there is such a chain in this to this assembly; and it is high time the question case, as that which seemeth most plain, if it is receive an end, the law a rule, and men's con- sharply looked into, doth invincibly draw on that veyances a direction.

which is most doubtful. For if the tree be parcel This doubt ariseth and resteth upon two things of the inheritance unsevered, inherit in the reverto be considered ; first, to consider of the interest sion, severance will not alien it, nor the clause and property of a timber tree, to whom it belong- will not divest it. eth: and, secondly, to consider of the construc- To open, therefore, the nature of an inheritance; tion and operation of these words or clause, abs- sense teacheth there be, of the soil and earth, que impetitione vasti: for within these two parts that are raised and eminent, as timber trees, branches will aptly fall whatsoever can be perti- rocks, houses. There be parts that are sunk and nently spoken in this question, without obscuring depressed, as mines, which are called by some the question by any other curious division. arbores subterranea, because that as trees have

For the first of these considerations, which is great branches and smaller boughs and twigs, so the interest or property of a timber tree, I will have they in their region greater and smaller maintain and prove to your lordships three things. veins; so if we had in England beds of porcelain,

First, That a timber tree, while it groweth, is such as they have in China, which porcelain is a merely parcel of the inheritance, as well as the kind of a plaster buried in the earth, and by length soil itself.

of time congealed and glazed into that fine subAnd, secondly, I will prove, that when either stance, this were as an artificial mine, and no nature or accident, or the hand of man hath made doubt part of the inheritance. Then are the ordiit transitory, and cut it off from the earth, it can- nary parts, which make the mass of the earth, as not change the owner, but the property of it goes stone, gravel, loam, clay, and the like. where the inheritance was before. And thus Now, as I make all these much in one degree, much by the rules of the common law.

so there is none of them, not timber trees, not And, thirdly, I will show that the statute of quarries, not minerals nor fossils, but hath a Gloucester doth rather corroborate and confirm double nature; inheritable and real while it the property in the lessor than alter it, or transfer contained within the mass of the earth, and tranit to the lessee.

sitory and personal when it is once severed. And for the second consideration, which is For even gold and precious stone, which is more the force of that clause, absque impelilione vasti, I durable out of earth than any tree is upon the will also uphold and make good three other earth, yet the law doth not hold of that dignity assertions

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ed. And this is not because it be- ritance and particular estate is in effect their uso cometh movable, for there be mov- dominium and usus-fructus ; for so it was con

able inheritances, as villains in gross, ceived upon the ancient statute of depopulations, and dignities which are judged hereditaments; 4 Hen. VII. which was penned, “ that the owner but because by their severance they lose their of the land should re-edify the houses of husnature of perpetuity, which is of the essence of bandry,” that the word owner, which answereth an inheritance.

to dominus, was he that had the immediate inhe. And herein I do not a little admire ritance; and so ran the later statutes. Let us see the wisdom of the laws of England, therefore what judgment the law maketh of a and the consent which they have with timber tree; and whether the law doth not place the wisdom of philosophy and nature it within the lot of him that hath the inheritance

itself: for it is a maxim in philosophy as parcel thereof. that in regione elementari nihil est æternum, nisi First, It appeareth by the register out per propagationem speciei, aut per successionem of the words of the writ of waste, that we are supposeb partium.

the waste is laid to be ad exhæredation- ber to be ad er. And it is most evident that the elements them- em, which presupposeth hæreditatem : selves, and their products, have a perpetuity not for there cannot be a disinherison by the cutting in individuo, but by supply and succession of down of the tree, except there was an inheritance parts. For example, the vestal fire that was in the tree, quia privalio præsupponit actum. nourished by the virgins at Rome was not the Again it appeareth out of the words same fire still, but was in perpetual waste and of the statute of Gloucester, well ob- Gloucester, in perpetual renovation. So it is of the sea and served, that the tree and the soil are waters, it is not the same water individually, for one entire thing, for the words are, quod talum. that exhales by the sun, and is fed again by the recuperet rei vastatam; and yet the books speak, showers. And so of the earth itself, and mines, and the very judgment in waste is quod recuperet quarries, and whatsoever it containeth, they are locum vastatum, which shows, that res and locus corruptible individually, and maintained only are in exposition of law taken indifferently; for by succession of parts, and that lasteth no longer the lessor shall not recover only the stem of the than they continue fixed to the main and mother tree, but he shall recover the very soil, whereunto globe of the earth, and is destroyed by their the stem continues. And therefore it is notably separation.

ruled in 22 H. VI. f. 13, that if the terAccording to this I find the wisdom of the law, minor do first cut down the tree, and by imitation of the course of nature, to judge of then destroy the stem, the lessor shall declare inheritances and things transitory; for it allow-upon two several wastes, and recover treble eth no portions of the earth, no stone, no gold, no damages for them severally. But, says the book, mineral, no tree, no mould to be longer inherit- he must bring but one writ, for he can recover the ance than they adhere to the mass, and so are place wasted but once. capable of supply in their parts; for by their con- And farther proof may be fitly alleged out of tinuance of body stands their continuance of time. Mullin's case in the commentaries,

Neither is this matter of discourse, except the where it is said, that for timber trees deep and profound reasons of law, which ought tithes shall not be paid. And the reason of the chiefly to be searched, shall be accounted dis book is well to be observed ; “ for that tithes are course, as the slighter sort of wits, Scioli, may to be paid for the revenue of the inheritance, and esteem them.

not for the inheritance itself.” And, therefore, now that we have opened the Nay, my lords, it is notable to consider what a nature of inheritable and transitory, let us see, reputation the law gives to the trees, even after upon a division of estates, and before severance, they are severed by grant, as may be plain.y what kind of interests the law allotteth to the inferred out of Herlackenden's case,

Co. p. 4, s. 62. owner of inheritance, and what to the particular L. Coke, p. 4, f. 62. I mean the printenant, for they be competitors in this case. cipal case; where it is resolved, that if the trees

First, In general the law doth assiyn being excepted out of a lease granted to the lessec,

to the lessor those parts of the soil con- or if the grantee of trees accept a lease of the land, the other joined, which have obtained the repu- the property of the trees drown not, as a terni

tation to be durable, and of continu- should drown in a freehold, but subsist as a chat

and such as being destroyed are tel divided; which shows plainly, though they not but by long time renewed; and to be made transitory, yet they still to some purpose

the terminors it assigneth such inte savour of the inheritance: for if you go a little the siai. 4 N. 1. rests as are tender and feeble against the farther, and put the case of a state tail, which is force of time, but have an annual or seasonable a state of inheritance, then I think clearly they return or reventie. And herein it consents again are reannexed. But, on the other side, if a man with the wisdom of the civil law; for our inhe-'buy corn standing upon the ground, and take a

22 H. 6. I. 13.

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lease of the same ground, where the corn stands, and its solid parts grow putrefied, and, as the poet I say plainly it is reaffixed, for paria copulantur saith, non jam mater alit tellus virecque ministrat. cum paribus.

then the law returns it back to the lessee. This And it is no less worthy the note, what an ope- is true justice, this is suum cuique tribucre ; the ration the inheritance leaveth behind it in matter law guiding all things with line of measure and of waste, even when it is gone, as appeareth in proportion. the case of tenant after possibility, who shall not And therefore that interest of the les. be punished; for though the new reason be, see in the tree, which the books call a because his estate was not within the statute of special property, is scarce worth that is in Gloucester; yet I will not go from my old master name. He shall have the shade, so forte hat bei Liuleton's reason, which speaketh out of the shall he have the shade of a rock ; but the tree. depth of the common law, he shall not be punished he shall not have a crystal or Bristol diamond " for the inheritance sake which was once in growing upon the rock. He shall have the panhim."

nage; why? that is the fruit of the inheritance of But this will receive a great deal of illustration, a tree, as herb or grass is of the soil. He shall by considering the terminor's estate, and the have seasonable loppings; why ? so he shall hare nature thereof, which was well defined by Mr. seasonable diggings of an open mine. So all Heath, who spake excellent well to the case, that these things are rather profits of the tree, than ang it is such as he ought to yield up the inheritance special property in the tree. But about words we in as good plight as he received it; and therefore will not differ.

the word firmarius, which is the word So as I conclude this part, that the reason and and friend the of the statute of Marlebridge, cometh, wisdom of law doth match things, as they con

as I conceive, a firmando; because he sort, ascribing to permanent states permanent makes the profit of the inheritance, which other interest, and to transitory states transitory inwise should be upon account, and uncertain, firm terest; and you cannot alter this order of law by and certain; and, accordingly, feodi firma, fee- fancies of clauses and liberties, as I will tell you farm, is a perpetuity certain. Therefore the in the proper place. And therefore the tree standnature and limit of a particular tenant is to make ing belongs clearly to the owner of the inheritance. the inheritance certain, and not to make it worse. Now come I to my second assertion, that by

1. Therefore he cannot break the soil otherwise the severance the ownership or property cannot be than with his ploughshare, to turn up perhaps a altered ; but that he that had the trees as part of stone that lieth aloft; his interest is in superficic, the inheritance before, must have it as a chatte! not in profurdo, he hath but lunicam terræ, little transitory after. This is pregnant and followeth more than the vesture.

of itself, for it is the same tree still, and, as the If we had fir timber here, as they have in Mus. Scripture saith, uti arbor cadet, ita jacet. covy, he could not pierce the tree to make the The owner of the whole must needs ourn the pitch come forth, no more than he may break the parts; he that owneth the cloth owneth the thread, earth.

and he that owneth an engine when it is entire, So we see the evidence, which is pro- owneth the parts when it is broken; breaking lumehedila. pugnaculum hæreditatis, the fortress and cannot alter property. defence of the land belongeth not to the And therefore the book in Herlack

Heriackendest lessee, but to the owner of the inheritance. enden's case doth not stick to give it cases

So the lessee's estate is not account- somewhat plain terms; and to say that it were an porter continu. ed of that dignity, that it can do ho- absurd thing, that the lessee which hath a parti

mage, because it is a badge of continu- cular interest in the land, should have an absoSeigneuries shall ance in the blood of lord and tenant. lute property in that which is part of the inherit

Neither for my own opinion can a par- ance : you would have the shadow draw the body, ticular tenant of a manor have aid pour file marier, and the twigs draw the trunk. These are truly on pour faire fitz chevalier ; because it is given by called absurdities. And, therefore, in a conclulaw upon an intendment of continuance of blood sion so plain, it shall be sufficient to vouch the and privity between lord and tenant.

authorities without enforcing the reasons. And for the tree, which is now in question, do And although the division be good, that was but consider in what a revolution the law moves, made by Mr. Heath, that there be four manners and as it were in an orb: for when the tree is of severances, that is, when the lessee fells the young and tender, germen terræ, a sprout of the tree, or when the lessor fells it, or when a stranger Earth, the law giveth it to the lessee, as having a fells it, or when the act of God, a tempest, sells nature not permanent, and yet easily restored ; it; yet this division tendeth rather to explanation when it comes to be a timber tree, and hath a nature than to proof, and I need it not, because I do mainsolid and durable, the law carrieth it to the lessor. tain that in all these cases the property is in the But after again if it become a sear and a dotard, lessor.

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meas of property, damages, seisire, and power lo graal.

41 E. 3, f. 27.

And therefore I will use a distribu. fell timber trees, they shall join in an action of tion which rather presseth the proof. waste; but he in the reversion shall recover the The question is of property. There be whole damages: and great reason, for the special

three arguments of property; damages, property was in the lessee for years, the general seisure, and grant: and according to these I will in him in the reversion, so the tenant for life examine the property of the trees by the authority meane had neither the one nor the other. of books.

Now, for the seisure, you may not look for And first for damages.

plentiful authority in that: for the lessor, which For damages, look into the books of the law, had the more beneficial remedy by action for and you shall not find the lessee shall ever recover treble damages, had little reason to resort to the damages, not as they are a badge of property ; for weaker remedy by seisure, and leases without the damages, which he recovereth, are of two impeachment were then rare, as I will tell you natures, either for the special property, as they anon. And, therefore, the question of the seisure call it, or as he is chargeable over. And for this, came chiefly in experience upon the case of the to avoid length, I will select three books, one windfalls, which could not be punished by action where the lessee shall recover treble damages, of waste. another where he shall recover but for his special First, therefore, the case of 40 E.

40 E. 3, pl. 22. property, and the third where he shall recover for III. pl. 22, is express, where at the the body of the tree, which is a special case, and king's suit, in the behalf of the heir of Darcy, standeth merely upon a special reason.

who was in ward, the king's lessee was questioned The first is the book of 44 E. III. in waste, and justified the taking of the trees,

f. 27, where it is agreed, that if tenant because they were overthrown by winds, and for life be, and a disseisor commit waste, the taken away by a stranger. But Knevet saith, lessee shall recover in trespass as he shall answer although one be guardian, yet the trees, when by in waste; but that this is a kind of recovery of their fall they are severed from the freehold, he dimages, though per accidens, may appear plainly. hath no property of the chattels, but they apper

For if the lessor die, whereby his action is gone, tain to the heir, and the heir shall have trespass then the disseisor is likewise discharged, other of them against a stranger, and not the guardian, wise than for the special property.

no more than the bailiff of a manor. So that The second book is 9 E. IV. f. 35, that book rules the interest of the tree to be in the 9 E. 4, 6.35.

where it is admitted, that if the lessor heir, and goes to a point farther, that he shall have himself cut down the tree, the lessee shall recover trespass for them; but of seisure there had been but for his special profit of shade, pannage, lop- no question. pings, because he is not charged over.

So again in 2 H. VII. the words of
The third is 44 E. III. f. 44, where Brian are, that, for the timber trees, the

it is said, that if the lessee fell trees to lessor may take them; for they are his; and T-pair the barn, which is not ruinous in his own scemeth to take some difference between them default, and the lessor come and take them away, and the gravel. he shall have trespass, and in that case he shall The like reason is of the timber of a house, as recover for the very body of the tree, for he hath appears 34 E. III. f. 5, abridged by

34 E. 3, f. 5. an absolute property in them for that intent. Brook, tit. Waste, pl. 34, when it is And that it is only for that intent appeareth said, it was doubted who should have the timber

notably by the book 38 Ass. f. 1. If of a house which fell by tempest; ana, saith the

the lessee after he hath cut down the book, it seems it doth appertain to the lessor; tree employ it not to reparations, but employ other and good reason, for it is no waste, and the trees of better value, yet it is waste; which lessee is not bound to re-edify it: and, therefore, showeth plainly the property is respective to the it is reason the lessor have it; but Herlackenden's employment.

case goes farther, where it is said that the lessee Nay, 5 E. IV. f. 100, goeth farther may help himself with the timber, if he will 6 E.4, f. 100.

and showeth, that the special property re-edify it; but clearly he hath no interest but which the lessee had was of the living tree, and towards a special employment. deterinines, as Herlackenden's case saith, by Now, you have had a case of the timber tree, severance; for, then, magis dignum trahit ad se and of the timber of the house, now take a case minus dignum: for it saith, that the lessee cannot of the mine, where that of the trees is likewise pay the workmen's wages with those parts of the put, and that is 9 E. IV. f. 35, where tree which are not timber. And so I leave the it is said by Needham, that if a lease first demonstration of property, which is by be made of land wherein there is tin, or iron, or damages; except you will add the case of lead, or coals, or quarry, and the lessor enter and

27 H. VIII. f. 13, where it is said, that take the tin or other materials, the lessee shall

if tenant for life, and he in the rever- punish him for coming upon his lard, but not for sion join a lease for years, and lessee for years taking of the substances. And so of great treee :

2 B. 7, 1. 14.

4: E. 3, L 41.

33 Am. f. 1.

9. E. 4, f. 35

27 IL 8, f. 13.

13 H. 7, L. 9.

Marwood and
San Jers. C.

Foster and

but Danby goes farther, and saith, the law that speak not a word what he shall recover, nor inat gives him the thing, doth likewise give him it shall be to the value. And, therefore, 9 E. IV. means to come by it; but they both agree that is a good expositor, for that distinguisheth where the interest is in the lessor. And thus much for the other two books speak indefinitely; yea, but the seisure.

5 H. IV. goeth farther, and saith, that the writ For the grant; it is not so certain a badge of shall purport arbores suas, which is true in respect property as the other two; for a man may have a of the special property; neither are writs to be property, and yet not grantable, because it is varied according to special cases, but are framed turned into a right, or otherwise suspended. to the general case, as upon lands recovered And, therefore, it is true, that by the book in in value in tail, the writ shall suppose donum, 21 H. VI. that if the lessor grant the trees, the a gift. grantee shall not take them, no, not after the lease And the third kind of authority is some books, expired; because this property is but de futuro, as 13 H. VII. f. 9, that say, that tresexpectant; but it is as plain on the other side pass lies not by the lessor against the that the lessee cannot grant them, as was resolved lessee for cutting down trees, but only waste;

in two notable cases, namely, the case but that it is to be understood of trespass ri et

of Marwood and Sanders, 41 El. in armis, and would have come fitly in question if communi banco; where it was ruled, that the there had been no seisure in this case. tenant of the inheritance may make a feoffment Upon all which I conclude, that the whole with exception of timber trees : but that if lessee current of authorities proveth the properties of the for life or years set over his estate with an excep- trees upon severance to be in the lessor by the tion of the trees, the exception is utterly void; rules of the common law; and that although the and the like resolution was in the case between common law would not so far protect the folly of

Foster and Mills, plaintiff, and Spencer the lessor, as to give him remedy by action, Spene-r's cases and Boord, defendant, 28 Eliz. rot. 820. where the state was created by his own act, yet,

Now come we to the authorities, which have the law never took from him his property ; so an appearance to be against us, which are not that, as to the property, before the statute and many, and they be easily answered, not by dis- since, the law was ever one. tinguishing subuilly, but by marking the books Now come I to the third assertion, that the advisedly.

statute of Gloucester hath not transferred the pro1. 'There be two books that seem to cross the perty of the lessee upon an intendment of recomauthorities touching the interest of the windfalls, pense to the lessor; which needs no long speech :

7 H. VI. and 44 E. III. f. 44, where, it is grounded upon a probable reason, and upon

upon waste brought and assigned in one special book. the succision of trees, the justification is, that they The reason is, that damages are a recompense were overthrown by wind, and so the lessee took for property; and, therefore, that the statute of them for fuel, and allowed for a good plea; but Gloucester giving damages should exclude prothese books are reconciled two ways: first, look perty. The authority seems to be 12 into both the justifications, and you shall find E. IV. f. 8, where Catesbey, affirming that the plea did not rely only in that they were that the lessee at will shall have the great trees, windfalls, but couples it with this, that they were as well as lessee for years or life; Fairfax and first sear, and then overthrown by wind; and that Jennings correct it with a difference, that the makes an end of it, for sear trees belong to the lessor may take them in the case of tenant at lessee, standing or felled, and you have a special will, because he hath no remedy by the statute, replication in the book of 44 E. III. that the wind but not in case of the termors. did but rend them, and buckle them, and that This conceit may be reasonable thus far, that they bore fruit two years after. And, secondly, the lessee shall not both seise and bring waste; you have ill luck with your windfalls, for they be but if he seise, he shall not have his action; if he still apple trees, which are but wastes, per accidens, recover by action, he shall not seise; for a man as willows or thorns are in the sight of a house; shall not have both the thing and recompense; it but when they are once felled they are clearly is a bar to the highest inheritance, the kingdom matter of fuel.

of heaven, receperunt mercedem suam. But at the Another kind of authorities, that make show first, it is at his election whether remedy he will against us, are those that say that the lessee shall use, like as in the case of trespass : where if a punish the lessor in trespass for taking the trees, man once recover in damages, it hath concluded

which are 5 H. IV. f. 29, and 1 Mar. and turned the property. Nay, I invert the argu.

Dier. f. 90, Mervin's case; and you ment upon the force of the statute of Gloucester might add if you will 9 E. IV. the case vouched thus: that if there had been no property at combefore : unto which the answer is, that trespass mon law, yet the statute of Gloucester, by remust be understood for the special property, and straining the waste, and giving an action, doth not for the body of the tree; for those two books'imply a property: whereto a better case cannot

7 11. 6.
44 E.3, 1. 44.

12 E. 4, L. &

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A H. 4, f. 29.
I Ma go.

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