It has generally been true that the provisions of waste statutes authorizing multiple damage awards are strictly construed, but this normally has meant that multiple damages will be awarded for voluntary waste whether innocently committed or not, and only single damages for permissive waste. Although the variance between the permissive  may  and the mandatory  shall  might not compel the court to reach a different conclusion, under the limitation of the permissive language of the statute announced in DeLano v. Tennent, it would appear that the legislature by changing to  shall  has flatly rejected the policy against awarding multiple damages and has gone beyond the position normally reached in American jurisdictions

Cross, Harry M.

English

UW Law Digital Commons (University of Washington)

Washington Law Review Volume 21 Number 1 1-1-1946 The Amendment of the Waste Statute—Retrogression? Harry M. Cross Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr Digital Commons Network Logo  Part of the Property Law and Real Estate Commons Recommended Citation Harry M. Cross, Comment, The Amendment of the Waste Statute—Retrogression?, 21 Wash. L. Rev. & St. B.J. 31 (1946). Available at: https://digitalcommons.law.uw.edu/wlr/vol21/iss1/3 This Comment is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. WASHINGTON LAW REVIEWandSTATE BAR JOURNALPublished Quarterly, in January, April, July and November of Each Yearby the Washington Law Review Association, at the Law Schoolof the University of Washington. Founded by John T.Condon, First Dean of the Law School.SUBSCSpTION Paic-: $1.20 PER AsNumM. Cuiunm CoPIEs 50c.ROBERT L. TAYLOR .................................. Editor-in-Chief.and Business ManagerR. H. NOTTELrMN ............... ..... Associate EditorSTUDENT EDITORIAL BOARD OF THE LAW SCHOOLJANE E. DowDLE, presidentM. BAYARD CRuTCHES, Vice-PresidentWLAR A. ZE LvI, Contributions EditorMAX B. KLEn, Make-Up EditorEdward T. EngstThomas E. KingBetty V. LeBusWilliam J. McAllisterWilliam C. KleinLucille E. LemieuxHelen M. NelsonHaydn H. HillingRobert R. HamiltonRobert G. .LewisL. Thomas NobleSamuel W. PeachCONTRIBUTORS TO THIS ISSUEALLEN, EDWARD W., of the Seattle Bar: United States Commissionerand Chairman of the International Pacific Salmon Fisheries Com-mission; United States Commissioner and Secretary of the Inter-national Fisheries Commission.MANDER, LINDEN A., M.A., University of Adelaide, 1920; lecturer inEconomic History and Director of Adult Education, University ofNew Zealand, 1922-1927; Professor of Political Science, Universityof Washington, since 1927.COMMENTTHE AMENDMENT OF THE WASTE STATUTE-RETROGRESSION?*"This court early in its history announced the doctrine that the ruleallowing recovery of exemplary -and punitive damages was unsound inprinciple, and held that such damages were not recoverable in this jurisI"Waste is an unreasonable and improper use and abuse, mismanage-ment, or omission of duty touching real estate by one rightfully in posses-sion, which results in substantial injury thereto. It is a violation of theobligation of the tenant to treat the premises in such a manner that no32 WASHINGTON LAW REVIEW [VoL. 21diction, unless expressly so provided by statute."' So stated Mr. JusticeFullerton in 1926 when the Washington court refused to award trebledamages for a violation of the waste statute2 in the leading case priorto the 1943 amendment.' In face of such a strongly stated judicialharm be done to them, and that the estate may revert to those having thereversionary interest, without material deterioration." Moore v. Twin CityIce & Cold Storage Co., 92 Wash. 608, 611, 159 Pac. 779 (1916).Cf. R aiV. REV. STAT. (1932) § 601. "Until the expiration of the timeallowed for redemption the court may restrain the commission of waste onthe property. But it is not waste for the person in possession of the propertyat the time of the sale or entitled to possession afterwards during the periodallowed for redemption to continue to use it in the same manner inwhich it was previously used, or to use it in the ordinary course of hus-bandry, or to make the necessary repairs of buildings thereon, or to usewood or timber on the property therefor, or for the repairs of fences, orfor fuel in his family while he occupies the property."It is not the purpose of this comment to present an exhaustive discussionof the waste statute or problems. In fact there are relatively few wastecases in the Washington reports, and some of them do not present anythingof particular importance. The problem arises usually when the landlordseeks either multiple damages or forfeiture of the tenancy.In the following cases the court found there had been no waste: Morrisv. Shell Oil Co., 167 Wash. 331, 9 P. (2d) 354 (1932) (Painting plaintiff'sbuilding in defendant's distinctive colors at tenant's request, no permanentdamage, not waste, even though it may have offended the aesthetic sense);Lee v. Weerda, 124 Wash. 168, 213 Pac. 919 (1923) (Growth of Canadianthistles, neglect of fruit trees, destruction of berry bushes, merely ill hus-husbandry, not waste); Moore v. Twin City Ice & Cold Storage Co., 92 Wash.608, 159 Pac. 779 (1916) (Tenant piled sand and gravel on the land prepara-tory to use in building on adjoining land, left some to make a driveway;there was no decrease of commercial value ($2,200) although there mighthave been decrease of agricultural value ($200)); Byrkett v. Gardner, 35Wash. 668, 77 Pac. 1048 (1904) (Failure to farm in good husbandlike manneror keep fences in repair, not waste).In the following cases the acts were recognized to constitute waste butapparently no right to treble damages was found: DeLano v. Tennent, 138Wash. 39, 244 Pac. 273, 45 A. L. R. 766 (1926) (Discussed in text); Cogswellv. Brown, 102 Wash. 625, 173 Pac. 623 (1918) (Mortgagor during period ofredemption may get accounting for waste from cutting of timber for com-mercial purposes, but under REM. REV. STAT. (1932) § 601 (single damages)and not under §§ 939 and 940 (companion to waste statute; relating to "tim-ber trespass")); Crodle v. Dodge, 99 Wash. 121, 168 Pac. 986 (1917) (Inaction to set aside deed, no accounting for rents and profits but removalof timber for commercial purposes was waste and accounting thereforallowed); McDowell v. Beckham, 72 Wash. 224, 130 Pac. 350 (1913) (Cuttingtimber by life tenant's grantees is waste, not a possessory act to baseadverse possession; issue as to ownership of condemnation award whenland was taken by City of Seattle).The reluctance of the court to award forfeiture is indicated by North-craft v. Blumauer, 53 Wash. 243, 101 Pac. 871 (1909) (Easement ownergravelled logging railroad right-of-way rather than timbered it; not suchwaste as would authorize forfeiture).Miscellaneous other cases: Brundage v. Home Savings & Loan Associa-tion, 11 Wash. 277, 39 Pac. 666 (1895) (Mortgagee in possession committingwaste, not alone authorization for appointment of receiver to collect rents,etc.); Arment v. Hensel, 5 Wash. 152, 31 Pac. 464 (1892) ("Waste" referredto in REm. REV. STAT. (1932) § 941 is not technical waste requiring act byone lawfully in possession); McLeod v. Ellis, 2 Wash. 117, 26 Pac. 76 (1891)(Court found action to be for conversion of trees severed, in order to findaction transitory-the waste and timber trespass statutes are discussed).IDeLano v. Tennent, 138 Wash. 39, 47, 244 Pac. 273, 45 A. L. R. 766, 771(1926).2 REm. REV. STAT. (1932) § 938.'WASH. LAWS 1943, c. 22, p. 40.COMMENTposition and the apparent legislative acquiescence in the doctrine, it isa bit of a surprise to read the 1943 legislature's amendment of the wastestatute which seems in direct opposition to the quoted doctrine.In 1854, the territorial legislature enacted a statute, which upon ashowing of waste authorized a judgment for compensatory damages,forfeiture of the estate, and eviction from the premises. Fifteen yearslater, in 1869, the statute was changed to provide that in an action ofwaste "there may be judgment for treble damages." The language ofthe 1869 statute5 survived the Code of 18816 and finally appeared asRem. Rev. Stat. (1932) Sec. 938. In Chapter 22, Laws of 1943, thelegislature made the first change in seventy-four years, and on a prelim-inary reading the statute now seems to take the final retrogressive step7in a change from mere compensatory damages to mandatory trebledamages.The statute now after the 1943 change reads:If a guardian, tenant in severalty or in common, for life orfor years, or by sufferance, or at will, or a sub-tenant, of realproperty commit waste thereon, any person injured therebymay maintain an action at law for damages therefor againstsuch guardian or tenant or sub-tenant; in which action, if theplaintiff prevails, there shall be judgment for treble damages,or for fifty dollars ($50), whichever is greater, and the courtin addition may decree forfeiture of the estate of the partycommitting or permitting the waste, and of eviction from theproperty. The judgment, in any event, shall include as partof the costs of the prevailing party a reasonable attorney'sfee to be fixed by the court. But judgment of forfeiture andeviction shall only be given in favor of the person entitled tothe reversion against the tenant in possession, when the injuryto the estate in reversion is determined in the action to beequal to the value of the tenant's estate or unexpired term, orto have been done or suffered in malice.8The most important change is the ubstitution of "shall" for "may"of the former statute in the clause "there shall be judgment for trebledamages." The signficance of this change is dearer when DeLano v.Tennent" is considered. In that case the tenant at the end of the termhad extensively damaged the leased premises by removing certain fix-tures which he mistakenly, but in good faith, believed he was privilegedto remove. The plaintiff landlord contended that treble damages shouldhave been awarded under the statute, but the court rejected this con-tention, making the statement of policy quoted above and concludingthat the statute penalized only wilful and wanton acts of waste, andthat for waste committed innocently only compensatory damages couldbe recovered.I WAsF. TErm. LAws 1854, § 403, p. 206.WAsa. TERa. LAWS 1869, § 555, p. 143.'As § 601.7 Retrogressive, that is, assuming the policy stated by the court in theDeLano case is correct.8R REmv. REv. STAT. (1943 supp.) § 938. The italicized parts are additionsby the 1943 act; except for changing "may" to "shall," the 1943 act merelymade additions to the statute without change of the existing language.9 Supra note 1.1946]WASHINGTON LAW REVIEWIt has generally been true that the provisions of waste statutes author-izing multiple damage awards are strictly construed,10 but this normallyhas meant that multiple damages will be awarded for voluntary waste 1whether innocently committed or not, and only single damages forpermissive waste.' 2 Although the variance between the permissive"may" and the mandatory "shall" might not compel the court to reacha different conclusion, under the limitation of the permissive languageof the statute announced in DeLano v. Tennent, it would appear thatthe legislature by changing to "shall" has flatly rejected the policyagainst awarding multiple damages and has gone beyond the positionnormally reached in American jurisdictions.Until the new statute is construed by the court, it cannot be deter-mined just what effect the change will have, but despite its seemingdrastic character, it is suggested that a preferable construction of thestatute will make the Washington position the same as that elsewhere.The language of the statute can be divided into two general parts. Thefirst part refers to the awarding of treble damages and authorizes anaction "if a ... tenant . . . commit waste . . ." The second part of thestatute authorizes forfeiture against "the party committing or permittingthe waste . . ." The second part also authorizes eviction, and providesthat judgment of forfeiture and eviction shall be given only if the injuryto the estate in reversion is determined "to be equal to the value of thetenant's estate or unexpired term, or to have been done or suffered inmalice." (Emphasis supplied.)In light of the policy or doctrine against punitive damages which wasso vigorously stated by the court in the DeLano case, it is suggested thatthe variance in the language of the two parts of the statute justifies aconstruction that only voluntary waste is to be penalized by trebledamages. Notice that the language relating to treble damages penalizesa tenant who commits waste, whereas the language with reference toforfeiture and eviction penalizes not only the tenant who commits butalso the one who permits waste.'The amendment also provides for a minimum recovery by the plaintiffof $50 and the award of reasonable attorney's fees to the prevailingparty. There formerly were no similar provisions.One additional problem should be pointed out. Before the 1943 amend-ment no tenant holding an estate less than an estate for years waswithin the scope of the statute. The 1943 amendment includes tenantsby sufferance, tenants at will, and sub-tenants. If it was advisable to10 See RESTATEMIENT, PROPERTY (1936) §§ 198, 199." An injury to the premises resulting from the tenant's affirmative act,e.g., tearing down a shed, cutting trees, is voluntary waste. An injuryresulting from the tenant's failure to act when it is his duty to act, e.g.,failure to keep the structure in repair, is permissive waste. See RESTATE-MENT, PROPERTY (1936) § 138, "Duty not to diminish market value of sub-sequent interests," on voluntary waste; and id. § 139, "Duty not to permitdeterioration of land or structures," on permissive waste. These twosections discuss a life tenant's duties but the discussion is also applicableto a leaseholder.12 Notes, "Construction and effect of statutory provision for double ortreble damages against tenant committing waste." 45 A. L. R. 771 (1926)."3 The fifth subdivision of the unlawful detainer statute also recognizesthis distinction: "A tenant of real property for a term less than life isguilty of unlawful detainer . . . (5) when he commits or permits wasteupon the demised premises .. ." REm. REv. STAT. (1932) § 812.[VOL. 21COMMENTextend the coverage of the statute, it would seem that the inclusion ofthe periodic tenant would have been most important. Until the recentcase of Najewitz v. City of Seattle," it was rather generally thought thatthere were no tenants at will in Washington.1 5 Certainly the ordinarytenant in this state for an indefinite time is a tenant from period toperiod (usually month to month) under the provisions of Rem. Rev.Stat. (1933) Sec. 10619.Before the 1943 change it could have been argued that the periodictenant is essentially a tenant at will with the statute defining the noticenecessary to terminate his tenancy.1 6 Such a conclusion would makeinappropriate the inclusion of the periodic tenant within the wastestatute, inasmuch as the tenant at will ordinarily cannot be guilty ofwaste. His act, which is of the same character as waste, technically,amounts to a termination of his tenancy, and he is held liable thereforas a trespasser and not as a wrongdoing tenant.'7 Now, it would seem,the amendment prevents finding a periodic tenant guilty of waste underthe statutei 8 even though other "lesser" tenants are includedThe wisdom of the enactment of the 1943 statute is certainly open todoubt, and as the foregoing discussion indicates the new law may haveraised problems just as serious as those (whatever they were) theamendment was designed to correct.HARRY M. CROSS1421 Wn.(2d) 656, 152 P.(2d) 722 (1944). Noted, (1945) 20 WASH. L.RnLV. 169.25 C, REsTAT EME, PROPERTY, WASH. ANNOT. (1940) § 21.'61t seems to be clear, at least, that the tenancy from period to perioddeveloped to avoid the undesirable features of the strict tenancy at will.See 7 HOLDSWORTH, HISTORY oF ENGLISH LAW (1926) 243-244-2 See TnFANY, REAL POPERTY (3d ed., 1939) § 631. This would meanrecovery of single damages as against an ordinary trespasser, unless thedamage was within the scope of the "timber trespass" statute (Rmun. REv.STAT. (1932) § 939.)"8 This, of course, does not mean that a periodic tenant cannot berestricted by a covenant against waste. It could be argued that before the1943 change the statute applied to (1) tenants in common generally, (2)life tenants, and (3) leaseholders, i.e., that the phrase "tenant for years"was not used technically (referring to a tenant for a fixed term), but rathermeant all leaseholders-non-freeholders. The express inclusion of certainnon-freeholders by the 1943 change seems to indicate the exclusion of othernon-freeholders.1946]

The Amendment of the Waste Statute—Retrogression?

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The Amendment of the Waste Statute—Retrogression?

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