THE

CASE OF IMPEACHMENT OF WASTE.

THE case needs neither repeating nor opening.' The point in substance is 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 received an end, the law a rule, and men's conveyances a direction.

This doubt ariseth and resteth upon two things to be considered: first, to consider of the interest and property of a timber tree, to whom it belongs; and secondly, to consider of the construction 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

Bacon makes a note in the MS.: "The case to be had from Mr. Heath or Serj. Finch"; which gives a further indication of time, for Finch was not called to the coif till Easter, 1615. Dugdale, Origines Juridiciales. The case is obviously Lewis Bowles' case 11 Co. 79. S. C. 1 Roll. 177. It was decided in the K. B. against the plaintiff, who thereupon talked of bringing error: apparently he did so and had Bacon for his counsel. We may assume he was unsuccessful, as the law remained undisturbed.

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 owner, but the property of it goeth 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.

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 state 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 of the inheritance unsevered, inhering in the reversion, severance will not alien it; nor the clause will not divest it.

To open, therefore, the nature of an inheritance: 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 subterranea,-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 there 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 or fossils, but hath a double nature; inheritable and real while it is contained with 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 severed. And this is not because it becometh moveable, for there be moveable inheritances, as villains in gross, and dignities which are judged hereditaments; but because by their severance they lose their nature of perpetuity, which is of the essence of an inheritance.

Nevil's case

proving there ances which

are inheritare not local.

7 Co. 121.

The consent with philo

of the law

sophy in dis

between per

petual and

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 of philo- tinguishing sophy, that in regione elementari nihil est æternum, nisi per pro- transitory. pagationem speciei, aut per successionem partium. And it is most evident that the elements themselves, 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 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.

According to this I find the wisdom of the law by imitation of the course of nature, to judge of inheritances and things transitory. For it alloweth 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.

The consent

of the law

with the civil law in the distinguish

ing between inheritance

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 interest the law allotteth to the owner of inheritance, and what to the particular tenant; for they be competitors in this case.

First, in general the law doth assign to the lessor those parts of the soil conjoined which have obtained the reputation to be durable, and of continuance, and such as being destroyed are not but by long time renewed; and to the termor it assigneth such interests 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 and particular civil law; for our inheritance and particular estate is in effect hath relation their dominium and usus-fructus; for so it was conceived upon the ancient statute of depopulations, 4° Hen. VII. which was penned, that the owner of the land should re-edify the houses of Owner in the husbandry, that the word owner (which answereth to dominus) was, he that had the immediate inheritance, and so ran the later statutes.

esta es, which

to their

nium and usus-fructus.

stat. 4 H. 7.

The writ of waste suppos

timber to be

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.

First, it appeareth by the register out of the words of the eth the felling writ of waste, that the waste is laid to be ad exhæredationem, ad exhareda- which presupposeth hæreditatem: 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.

tionem.

Gloucester is,

ret rem

talam, not

tocum vasta

tum.

The statute of Again it appeareth out of the words of the statute of Glouquod recupe-cester 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 wherewith the stem continues. And therefore it is notably 2 H. 6. f. 13. ruled in 22 H. VI. f. 13., that if the termor do first cut down

"There" in the "