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CASE OF IMPEACHMENT OF WASTE.
BEFORE ALL THE JUDGES IN THE EXCHEQUER CHAMBER.
THE case needs neither repeating nor opening. The point is, in substance, but one, familiar to be put, but difficult to be resolved; that is, Whether, upon a lease without impeachment of waste, the property of the timber trees, after severance, be not in him that is owner of the inheritance?
The case is of great weight, and the question of great difficulty: weighty it must needs be, for that it doth concern, or may concern all the lands in England; and difficult it must be, because this question sails in confluentiis aquarum, in the meeting or strife of two great tides. For there is a strong current of practice and opinion on the one side, and there is a more strong current, as I conceive, of authorities, both ancient and late, on the other side. And, therefore, according to the reverend custom of the realm, it is brought now to this assembly; and it is high time the question receive an end, the law a rule, and men's conveyances a direction.
First, That if that clause should be taken in the sense which the other side would force upon it, that it were a clause repugnant to the estate and void.
Secondly, That the sense which we conceive and give is natural in respect of the words; and for the matter agreeable to reason and the rules of law.
And, lastly, That if the interpretation seem ambiguous and doubtful, yet the very mischief itself, and consideration of the commonwealth, ought rather to incline your lordships' judgment to our construction.
My first assertion therefore is, that a timber tree is a solid parcel of the inheritance; which may seem a point admitted, and not worth the labouring. But there is such a chain in this case, as that which seemeth most plain, if it is sharply looked into, doth invincibly draw on that 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, absque impetitione vasti: for within these two branches will aptly fall whatsoever can be pertinently spoken in this question, without obscuring the question by any other curious division.
For the first of these considerations, which is the interest or property of a timber tree, I will maintain and prove to your lordships three things. First, That a timber tree, while it groweth, is merely parcel of the inheritance, as well as the soil itself.
And, secondly, I will prove, that when either nature or accident, or the hand of man hath made it transitory, and cut it off from the earth, it cannot change the owner, but the property of it goes where the inheritance was before. And thus much by the rules of the common law.
And, thirdly, I will show that the statute of Gloucester doth rather corroborate and confirm the property in the lessor than alter it, or transfer it to the lessee.
And for the second consideration, which is the force of that clause, absque impetitione vasti, I will also uphold and make good three other assertions
sense teacheth there be, of the soil and earth, parts that are raised and eminent, as timber trees, rocks, houses. There be parts that are sunk and depressed, as mines, which are called by some arbores subterraneæ, because that as trees have great branches and smaller boughs and twigs, so have they in their region greater and smaller veins; so if we had in England beds of porcelain, such as they have in China, which porcelain is a kind of a plaster buried in the earth, and by length of time congealed and glazed into that fine substance, this were as an artificial mine, and no doubt part of the inheritance. Then are the ordinary parts, which make the mass of the earth, as stone, gravel, loam, clay, and the like.
Now, as I make all these much in one degree, so there is none of them, not timber trees, not quarries, not minerals nor fossils, but hath a double nature; inheritable and real while it is contained within the mass of the earth, and transitory and personal when it is once severed. For even gold and precious stone, which is more durable out of earth than any tree is upon the earth, yet the law doth not hold of that dignity as to be matter of inheritance if it be once sever
Nevil's case proving there which are not local.
ed. And this is not because it be- ritance and particular estate is in effect their are inheritances cometh movable, for there be mov- dominium and usus-fructus; for so it was conable 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 nature of perpetuity, which is of the essence of an inheritance.
The consent of the law with philosophy in distinguishing between perpetual and tran sitory.
of the land should re-edify the houses of husbandry," that the word owner, which answereth to dominus, was he that had the immediate inhe. ritance; and so ran the later statutes. Let us see therefore what judgment the law maketh of a timber tree; and whether the law doth not place it within the lot of him that hath the inheritance as parcel thereof.
And herein I do not a little admire the wisdom of the laws of England, and the consent which they have with the wisdom of philosophy and nature itself: for it is a maxim in philosophy 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 partium. the waste is laid to be ad exhæredationAnd it is most evident that the elements them-em, which presupposeth hæreditatem : selves, and their products, have a perpetuity not in individuo, but by supply and succession of parts. For example, the vestal fire that was nourished by the virgins at Rome was not the same fire still, but was in perpetual waste and in perpetual renovation. So it is of the sea and waters, it is not the same water individually, for that exhales by the sun, and is fed again by the showers. And so of the earth itself, and mines, quarries, and whatsoever it containeth, they are corruptible individually, and maintained only by succession of parts, and that lasteth no longer than they continue fixed to the main and mother globe of the earth, and is destroyed by their separation.
The writ of
waste suppose h
the felling timber to be ad ex
The statute of
Gloucester, rem vastalam,
not locum vas. tatum.
for there cannot be a disinherison by the cutting down of the tree, except there was an inheritance in the tree, quia privatio præsupponit actum. Again it appeareth out of the words of the statute of Gloucester, well observed, that the tree and the soil are one entire thing, for the words are, quod recuperet rem vastatam; and yet the books speak, and the very judgment in waste is quod recuperet locum vastatum, which shows, that res and locus are in exposition of law taken indifferently; for the lessor shall not recover only the stem of the tree, but he shall recover the very soil, whereunto the stem continues. And therefore it is notably 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 mineral, no tree, no mould to be longer inheritance than they adhere to the mass, and so are capable of supply in their parts; for by their continuance of body stands their continuance of time. Neither is this matter of discourse, except the deep and profound reasons of law, which ought chiefly to be searched, shall be accounted discourse, as the slighter sort of wits, Scioli, may esteem them.
And, therefore, now that we have opened the nature of inheritable and transitory, let us see, upon a division of estates, and before severance, what kind of interests the law allotteth to the owner of inheritance, and what to the particular tenant, for they be competitors in this case.
The consent of the law with the civil law in distingui h
heritance and particular estates, which
First, In general the law doth assign to the lessor those parts of the soil conthe den joined, which have obtained the reputation to be durable, and of continuhath reation to ance, and such as being destroyed are not but by long time renewed; and to the terminors it assigneth such intethe stat. 4 H. 7. rests as are tender and feeble against the force of time, but have an annual or seasonable return or revenue. And herein it consents again with the wisdom of the civil law; for our inhc
of dominan and unes face tus Owner in
22 H. 6. f. 13.
damages for them severally. But, says the book, he must bring but one writ, for he can recover the place wasted but once.
And farther proof may be fitly alleged out of Mullin's case in the commentaries, Mullin's case. where it is said, that for timber trees tithes shall not be paid. And the reason of the book is well to be observed; "for that tithes are to be paid for the revenue of the inheritance, and not for the inheritance itself."
Co. p. 4, f. 62.
Nay, my lords, it is notable to consider what a reputation the law gives to the trees, even after they are severed by grant, as may be plain.y inferred out of Herlackenden's case, L. Coke, p. 4, f. 62. I mean the principal case; where it is resolved, that if the trees being excepted out of a lease granted to the lessee, or if the grantee of trees accept a lease of the land, the property of the trees drown not, as a termi should drown in a freehold, but subsist as a chattel divided; which shows plainly, though they be made transitory, yet they still to some purpose savour of the inheritance: for if you go a little farther, and put the case of a state tail, which is a state of inheritance, then I think clearly they are reannexed. But, on the other side, if a man buy corn standing upon the ground, and take a
lease of the same ground, where the corn stands, I say plainly it is reaffixed, for paria copulantur cum paribus.
And it is no less worthy the note, what an operation the inheritance leaveth behind it in matter of waste, even when it is gone, as appeareth in the case of tenant after possibility, who shall not be punished; for though the new reason be, because his estate was not within the statute of Gloucester; yet I will not go from my old master Littleton's reason, which speaketh out of the depth of the common law, he shall not be punished "for the inheritance sake which was once in him."
and its solid parts grow putrefied, and, as the poet saith, non jam mater alit tellus viresque ministrat. then the law returns it back to the lessee. This is true justice, this is suum cuique tribuere; the law guiding all things with line of measure and proportion.
The aetat the lessee bath a special proper.
very improper; for he hath but the profis of
And therefore that interest of the lessee in the tree, which the books call a special property, is scarce worth that the name. He shall have the shade, so shall he have the shade of a rock; but the tree. he shall not have a crystal or Bristol diamond growing upon the rock. He shall have the pannage; why? that is the fruit of the inheritance of a tree, as herb or grass is of the soil. He shall have seasonable loppings; why? so he shall have seasonable diggings of an open mine. So all these things are rather profits of the tree, than any special property in the tree. But about words we will not differ.
But this will receive a great deal of illustration, by considering the terminor's estate, and the nature thereof, which was well defined by Mr. Heath, who spake excellent well to the case, that it is such as he ought to yield up the inheritance in as good plight as he received it; and therefore the word firmarius, which is the word So as I conclude this part, that the reason and and force of the of the statute of Marlebridge, cometh, wisdom of law doth match things, as they conas 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 nature and limit of a particular tenant is to make the inheritance certain, and not to make it worse. 1. Therefore he cannot break the soil otherwise than with his ploughshare, to turn up perhaps a stone that lieth aloft; his interest is in superficic, not in profundo, he hath but tunicam terræ, little more than the vesture.
ance in the
cular tenants of
not have aid.
in the proper place. And therefore the tree standing belongs clearly to the owner of the inheritance.
Now come I to my second assertion, that by the severance the ownership or property cannot be altered; but that he that had the trees as part of the inheritance before, must have it as a chattel transitory after. This is pregnant and followeth of itself, for it is the same tree still, and, as the Scripture saith, uti arbor cadet, ita jacet.
The owner of the whole must needs own the parts; he that owneth the cloth owneth the thread, and he that owneth an engine when it is entire, owneth the parts when it is broken; breaking cannot alter property.
And therefore the book in Herlack- Herlackendes! enden's case doth not stick to give it case. somewhat plain terms; and to say that it were an absurd thing, that the lessee which hath a particular interest in the land, should have an absolute property in that which is part of the inherit
So the lessee's estate is not accountporteth continued of that dignity, that it can do hoblool. Parti- mage, because it is a badge of continuseigniories shall ance in the blood of lord and tenant. 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, ou pour faire fitz chevalier; because it is given by law upon an intendment of continuance of blood and privity between lord and tenant.
And for the tree, which is now in question, do but consider in what a revolution the law moves, and as it were in an orb for when the tree is young and tender, germen terræ, a sprout of the earth, the law giveth it to the lessee, as having a nature not permanent, and yet easily restored; when it comes to be a timber tree, and hath a nature solid and durable, the law carrieth it to the lessor. But after again if it become a sear and a dotard,
and the twigs draw the trunk. These are truly called absurdities. And, therefore, in a conclusion so plain, it shall be sufficient to vouch the authorities without enforcing the reasons.
And although the division be good, that was made by Mr. Heath, that there be four manners of severances, that is, when the lessee fells the tree, or when the lessor fells it, or when a stranger fells it, or when the act of God, a tempest, fells it; yet this division tendeth rather to explanation than to proof, and I need it not, because I do maintain that in all these cases the property is in the lessor.
For damages, look into the books of the law, and you shall not find the lessee shall ever recover damages, not as they are a badge of property; for the damages, which he recovereth, are of two natures, either for the special property, as they call it, or as he is chargeable over. And for this, to avoid length, I will select three books, one where the lessee shall recover treble damages, another where he shall recover but for his special property, and the third where he shall recover for the body of the tree, which is a special case, and standeth merely upon a special reason.
4: E. 3, L. 44.
The third is 44 E. III. f. 44, where it is said, that if the lessee fell trees to repair the barn, which is not ruinous in his own default, and the lessor come and take them away, he shall have trespass, and in that case he shall recover for the very body of the tree, for he hath an absolute property in them for that intent. And that it is only for that intent appeareth notably by the book 38 Ass. f. 1. the lessee after he hath cut down the tree employ it not to reparations, but employ other trees of better value, yet it is waste; which showeth plainly the property is respective to the employment.
33 Ace. f. 1.
6 E.4, f. 100.
Nay, 5 E. IV. f. 100, goeth farther and showeth, that the special property which the lessee had was of the living tree, and determines, as Herlackenden's case saith, by severance; for, then, magis dignum trahit ad se minus dignum: for it saith, that the lessee cannot pay the workmen's wages with those parts of the tree which are not timber. And so I leave the first demonstration of property, which is by damages; except you will add the case of 27 H. VIII. f. 13, where it is said, that if tenant for life, and he in the reversion join a lease for years, and lessee for years
27 IL 8, f. 13.
fell timber trees, they shall join in an action of waste; but he in the reversion shall recover the whole damages: and great reason, for the special property was in the lessee for years, the general in him in the reversion, so the tenant for life meane had neither the one nor the other.
Now, for the seisure, you may not look for plentiful authority in that: for the lessor, which had the more beneficial remedy by action for treble damages, had little reason to resort to the weaker remedy by seisure, and leases without impeachment were then rare, as I will tell you anon. And, therefore, the question of the seisure came chiefly in experience upon the case of the windfalls, which could not be punished by action of waste.
40 E. 3, pl. 22.
First, therefore, the case of 40 E. III. pl. 22, is express, where at the king's suit, in the behalf of the heir of Darcy, who was in ward, the king's lessee was questioned in waste, and justified the taking of the trees, because they were overthrown by winds, and taken away by a stranger. But Knevet saith, although one be guardian, yet the trees, when by their fall they are severed from the freehold, he hath no property of the chattels, but they appertain to the heir, and the heir shall have trespass of them against a stranger, and not the guardian, no more than the bailiff of a manor. So that that book rules the interest of the tree to be in the heir, and goes to a point farther, that he shall have trespass for them; but of seisure there had been no question.
2 B. 7, f. 14.
So again in 2 H. VII. the words of Brian are, that, for the timber trees, the lessor may take them; for they are his; and seemeth to take some difference between them and the gravel.
34 E. 3, f. 5.
The like reason is of the timber of a house, as appears 34 E. III. f. 5, abridged by Brook, tit. Waste, pl. 34, when it is said, it was doubted who should have the timber of a house which fell by tempest; ana, saith the book, it seems it doth appertain to the lessor; and good reason, for it is no waste, and the lessee is not bound to re-edify it: and, therefore, it is reason the lessor have it; but Herlackenden's case goes farther, where it is said that the lessee may help himself with the timber, if he will re-edify it; but clearly he hath no interest but towards a special employment.
9. E. 4, f. 35
Now, you have had a case of the timber tree, and of the timber of the house, now take a case of the mine, where that of the trees is likewise put, and that is 9 E. IV. f. 35, where it is said by Needham, that if a lease be made of land wherein there is tin, or iron, or lead, or coals, or quarry, and the lessor enter and take the tin or other materials, the lessee shall punish him for coming upon his lard, but not for taking of the substances. And so of great trees:
but Danby goes farther, and saith, the law that gives him the thing, doth likewise give him means to come by it; but they both agree that the interest is in the lessor. And thus much for the seisure.
speak not a word what he shall recover, nor that it shall be to the value. And, therefore, 9 E. IV. is a good expositor, for that distinguisheth where the other two books speak indefinitely; yea, but 5 H. IV. goeth farther, and saith, that the writ shall purport arbores suas, which is true in respect of the special property; neither are writs to be varied according to special cases, but are framed
in value in tail, the writ shall suppose donum, a gift.
And the third kind of authority is some books,
as 13 H. VII. f. 9, that say, that tres- 13 H. 7, f. 9.
For the grant; it is not so certain a badge of property as the other two; for a man may have a property, and yet not grantable, because it is 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 21 H. VI. that if the lessor grant the trees, the grantee shall not take them, no, not after the lease expired; because this property is but de futuro, expectant; but it is as plain on the other side that the lessee cannot grant them, as was resolved in two notable cases, namely, the case Sanders. C. of Marwood and Sanders, 41 El. in communi banco; where it was ruled, that the tenant of the inheritance may make a feoffment with exception of timber trees: but that if lessee for life or years set over his estate with an exception of the trees, the exception is utterly void; and the like resolution was in the case between Foster and Mills, plaintiff, and Spencer Spencer's case. and Boord, defendant, 28 Eliz. rot. 820. Now come we to the authorities, which have an appearance to be against us, which are not many, and they be easily answered, not by distinguishing subtilly, but by marking the books. advisedly.
7 H. 6.
1. There be two books that seem to cross the authorities touching the interest of the windfalls, 7 H. VI. and 44 E. III. f. 44, where, upon waste brought and assigned in the succision of trees, the justification is, that they were overthrown by wind, and so the lessee took them for fuel, and allowed for a good plea; but these books are reconciled two ways: first, look into both the justifications, and you shall find that the plea did not rely only in that they were windfalls, but couples it with this, that they were first sear, and then overthrown by wind; and that makes an end of it, for sear trees belong to the lessee, standing or felled, and you have a special replication in the book of 44 E. III. that the wind did but rend them, and buckle them, and that they bore fruit two years after. And, secondly, you have ill luck with your windfalls, for they be still apple trees, which are but wastes, per accidens, as willows or thorns are in the sight of a house; but when they are once felled they are clearly matter of fuel.
Another kind of authorities, that make show against us, are those that say that the lessee shall punish the lessor in trespass for taking the trees,
Upon all which I conclude, that the whole current of authorities proveth the properties of the trees upon severance to be in the lessor by the rules of the common law; and that although the common law would not so far protect the folly of the lessor, as to give him remedy by action, where the state was created by his own act, yet, the law never took from him his property; so that, as to the property, before the statute and since, the law was ever one.
Now come I to the third assertion, that the statute of Gloucester hath not transferred the property of the lessee upon an intendment of recompense to the lessor; which needs no long speech: it is grounded upon a probable reason, and upon one special book.
12 E. 4, f. 8.
The reason is, that damages are a recompense for property; and, therefore, that the statute of Gloucester giving damages should exclude property. The authority seems to be 12 E. IV. f. 8, where Catesbey, affirming that the lessee at will shall have the great trees, as well as lessee for years or life; Fairfax and Jennings correct it with a difference, that the lessor may take them in the case of tenant at will, because he hath no remedy by the statute, but not in case of the termors.
This conceit may be reasonable thus far, that the lessee shall not both seise and bring waste; but if he seise, he shall not have his action; if he recover by action, he shall not seise; for a man shall not have both the thing and recompense; it is a bar to the highest inheritance, the kingdom of heaven, receperunt mercedem suam. But at the first, it is at his election whether remedy he will use, like as in the case of trespass: where if a man once recover in damages, it hath concluded and turned the property. Nay, I invert the argument upon the force of the statute of Gloucester thus: that if there had been no property at common law, yet the statute of Gloucester, by restraining the waste, and giving an action, doth imply a property': whereto a better case cannot