WASTE (Vastum) is used in law in several senses, of which four are the most important. (1) Waste of a manor is that part of a manor subject to rights of common, as distinguished from the lord’s demesne (see Commons, Manor). (2) Year, day, and waste was a part of the royal prerogative, acknowledged by the statute De Praerogativa Regis. The king had the profits of freehold lands of those attainted of felony and petit treason and of fugitives for a year and a day with a right of committing waste in sense (3) thereon. After the expiration of a year and a day the lands returned to the lord of the fee. Attainder for felony being now abolished, the right has ceased to exist (see Felony Treason). (3) The most usual signification of the word is “any unauthorized act of a tenant for a freehold estate, not of inheritance or for any lesser interest, which tends to the destruction of the tenement, or otherwise to the injury of the inheritance” (Pollock, Law of Torts, p. 285). Waste is either voluntary or permissive. Voluntary waste is by act of commission, as by pulling down a house, cutting down trees, opening new quarries or mines (though not continuing the working of existing ones), or doing anything which may destroy evidence, such as conversion of arable into meadow land. Permissive waste is by act of omission, such as allowing buildings to fall out of repair. A fermor, by the Statute of Marlbridge, 52 Hen. III. c. 23, may not commit waste without licence in writing from the reversioner. The same statute mentions a form of waste which has long become extinct, viz., exile (exilium), or the impoverishment of villeins or tenants at will on an estate. In case a tenant for life or for any smaller interest holds (as is often the case by the terms of a will or settlement) ...without impeachment of waste, his rights are considerably greater, and he may use the profits salva rerum substantia (to use the language of Roman law). For instance, he may cut timber in a husband-like manner and open mines, but he may not commit what is called equitable waste, that is, pull down or deface the mansion or destroy ornamental timber. Acts of equitable waste were, before 1875, not cognizable in courts of common law, but it is now provided by the Judicature Act, 1873, § 25 (3), that in the absence of special provision to that effect an estate for life without impeachment of waste shall not confer upon the tenant for life any legal right to commit equitable waste. Removal of fixtures, which would be prima facie waste, is recognized by the law to a limited extent (see Fixtures). A copyholder may not commit waste unless allowed by the custom of the manor (see Copyhold). Various remedies for waste have been given to the reversioner at different periods of law. At common law only single damages seem to have been recoverable. This was altered by the legislature, and for some centuries waste was a criminal or quasi-criminal offence. Magna Charta enacted that a guardian committing waste of the lands in his custody should make amends and lose his office. The Statute of Marlbridge made a fermor committing waste liable to grievous amerciament as well as to damages, and followed Magna Charta in forbidding waste by a guardian. The Statute of Gloucester, 6 Edw. I. c. 5, enacted that a writ of waste might be granted against a tenant for life or years or in courtesy or dower, and on being attainted of waste the tenant was to forfeit the land wasted and to pay thrice the amount of the waste. In addition to the writ of waste the writ of estrepement (said to be a corruption of exstirpamentum) lay to prevent injury to an estate to which the title was disputed. Numerous other acts dealt with remedies for waste. The writ of waste was superseded at common law by the mixed action of waste, itself abolished by 3 and 4 Will. IV. c. 27, and the action of trespass on the case (see Tort, Trespass). The Court of Chancery also established a jurisdiction by suit or injunction, especially to restrain equitable waste. At present proceedings may be taken either by action for damages, or by application for an injunction, or by both combined, and either in the Queen’s Bench or Chancery Division. By the Judicature Act, 1873, § 25 (8), the old jurisdiction to grant injunctions to prevent threatened waste is considerably enlarged. The rules of the Supreme Court, 1883, Ord. xvi. r. 37, enable a representative action to be brought for the prevention of waste. In order to obtain damages or an injunction, substantial injury or danger of it must be proved. In England only the High Court (unless by agreement of the parties) has jurisdiction in questions of waste, but in Ireland the civil bill courts and courts of summary jurisdiction have co-ordinate authority to a limited extent. The law of waste as it affects ecclesiastical benefices will be found under Dilapidations. (4) Waste of assets or devastavit is a squandering and misapplication of the estate and effects of a deceased person by his executors or administrators, for which they are answerable out of their own pockets as far as they have or might have had assets of the deceased. The legal liability of the representatives of the deceased is recognized by 30 Car. II. c. 7 and 4 W. and M. c. 24.
In Scots law waste is not used as a technical term, but the respective rights of fiar and liferenter are much the same as in England. The latter, however, has not the right of continuing the working of existing mines unless the deed specially confers it upon him. Interdicts have in strong cases been granted against the sale of ornamental timber.
In the United States, especially in the western States, many acts, such as the felling of timber, are not considered waste which would be waste in England. In some States waste is a cause of forfeiture; in some it gives a right to treble damages. The writ of estrepement is still in use.
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