buildings, and use the materials in the house to be so built, was not bad as giving power to the lessee to commit waste within the meaning of the leasing power (y); and where it was required that no lessee should by any clause or words in the lease be authorised to commit waste, or exempted from punishment for committing waste, a lease with a covenant not to plough up pasture land except for the purpose of carrying out the allotment system was supported (2). But where the power, which was to lease for twenty-one years at the best rent, required that the lessee should not by any clause or words in the lease be made dispunishable for waste, or exempted from punishment for committing waste, and by the lease the lessees covenanted to keep in repair certain portions of the property, upon being found in materials, and the lessor covenanted in other respects to keep the property in repair, the lease was held not to be in conformity with the

(y) *Doe v. Stephens, 6 Q. B. 208. See, also, Doe v. The Earl of Burlington, 5 Barn. & Ad. 507, in which many authorities as to waste (especially as to waste as applicable to buildings) are collected, and the Court affirmed the principles, that where there are no damages there can be no waste; and that there is no authority for saying that any act can be waste which is not injurious to

the inheritance, either, first, by
diminishing the value of the
estate, or, secondly, by increas-
ing the burthen upon it, or,
thirdly, by impairing the evi-
dence of title. And see Morris
v. The Rhydydefed Colliery
Company, 3 Hurl. and Norm.
473, in err., ibid. 885.

(z) Doe v. Ferrand, 15 Jur.
1061, 20 L. J. (C. P.) 202;
see ante, vol. i., p. 377 n.

* Waste implies damage.

power (a). It was said that if it had been provided that the lessee should not be expressly made dispunishable for waste, no question could have arisen, for there was no express stipulation that the tenant might commit waste or permit it; but that there was an implied permission in the lease to leave the repairs of the houses and mill undone, as the lessor covenanted to do them, and it followed that the lessee was not to do them; upon the words that the lessee should not be made dispunishable for waste, or exempted from punishment for committing waste, it was considered that the generality of the former branch of the sentence, including both permissive and commissive waste, was not restrained by the latter, and hence that the donee of the power was prevented from making a lease which should contain terms expressly or by implication exempting him from punishment for permissive or voluntary waste; and it was inferred that the lease was void. case in question was distinguished from Doe v. Bettison (b), on the ground that in that case the power prohibited any clause giving power to commit waste, or exempting from punishment for committing it; but did not avoid a lease for allowing permissive waste. It is conceived that this decision proceeded on a narrow view of the construction of the clause as to waste, and though not exactly at variance with the existing

means required by them.

(a) Yellowly v. Gower, 11 Exch. 274.

The

authorities, was by no The Court, it may be

(b) 12 East, 304.

thought, might, consistently at once with principle
and authority on the one hand, and with fairness
and convenience on the other, have gone upon the
principle of refusing to treat a lease as authorising
waste, when no spoliation or injury was contem-
plated, but on the contrary the contract fully pro-
vided for the repairs, though the burthen of repairing
was not wholly thrown upon the lessee, an arrange-
ment which (as observed in Doe v. Bettison) no
doubt influenced the quantum of the rent; and the
refined distinction between the general prohibition
against waste in the case under discussion (Yellowly
v. Gower), and the prohibition against committing
waste in Doe v. Bettison, may perhaps be thought
to have formed a somewhat unsubstantial foundation
for the difference of the construction in the two
cases. However, having regard to the decision in
Yellowly v. Gower, and the extent to which it is
calculated to embarrass the details of arrangement
between landlord and tenant, under leasing powers
containing a clause against making the lessee dis-
punishable for waste, it appears to the writer to be
the more eligible and prudent course to omit that
clause in leasing powers, and to rely (as it is con-
ceived may
with safety be done) on the principle
that a lease authorising any spoliation or waste to
the prejudice of the inheritance, and beyond what
ís fairly required for its legitimate objects, would be
void as a fraudulent exercise of the power (c).

(c) *Reference may here be made to Daly v. Beckett, 24 Beav. 114, in which an estate

* Waste with reference to

with the "mines and mine-
rals," being settled, and power mining leases.
being given to the trustees to

Power to grant building and improving leases.

Form and

extent of power.

The form of power to grant building leases which is used in this collection authorises leases to persons improving by erecting new houses or buildings, or rebuilding, repairing, enlarging or improving existing houses or buildings, or covenanting so to do. A repairing lease is not, it appears, within a power to grant leases for the purpose of rebuilding (d), and

is of course of a perfectly distinct nature from an ordinary building lease, which in general contemplates the building on ground previously vacant. Hence the necessity of distinctly authorising the different kinds of improvement specified in the form. Questions have arisen as to the extent of ground authorised to be included in a building or improving lease (e). Where any particular description of improvement is in view, the terms of the power may with advantage be adapted to it, but under the ordinary form of power the donee would no doubt be at liberty to exercise a fair discretion as to the mode of laying out the property according to its

Lord St. Leonards' observa-
tions on the last-mentioned
case, Sugd. Pow., 8th ed.,
830, 831. Upon Jones v. Ver-
ney
*Mr. Chance observes (2
Pow. [2398]) that though one
of the conditions of the power
was "so as no such lease be
made without impeachment of
waste by any express words,"
it would seem from the case
that the donee might autho-
rise the pulling down of the
old erections, &c.; and that
when the intention of the
other parts of such a power
can be clearly collected, there
appears to be no difficulty in
putting a qualified meaning
upon such words. As to this

principle of construction, see

*Waste with

the last note. Having regard
to the principles laid down in
Doe v. Earl of Burlington, 5
Barn. & Ad. 507, cited supra,
p. 507, note (y), it may be reference to
doubted whether the destruc- building leases.
tion of buildings for the pur-
pose and in the course of re-
building, in itself amounts to
waste. Still it may be thought
that the objection to requir-
ing that the lessee shall not
be dispunishable for waste (see
supra, p. 509) applies with
more force to building leases
than to ordinary agricultural
or occupation leases.

(e) See Cooper v. Deane, 4
Bro. C. C. 80, 1 Ves. Jun.
565; Higgins v. Rosse, 3 Bligh,

112.