DUVALL v. WATERS. 571

This is the first instance, since I have been here, in which the
correctness of this peculiar species of injunction has been called in
question; and as its origin and nature seem to have fallen into
some degree of obscurity; it may be well to take a larger view of
the subject than might otherwise be deemed necessary.

The terms waste and trespass are very often used to designate
injuries to property of the identical same nature. The cutting
of a timber tree, or the pulling down of a house, may be an
act entirely lawful; or it may be an act of waste, or of trespass ;
and, that not because of any peculiarity in the act itself; but,
because of the party, by whom it may have been done, having an
absolute title, a limited estate, or no right whatever. The absolute
owner of an estate in fee simple, without any incumbrance, or
charge upon it, has an uncontrollable power to dispose of it as he
may think proper; and can be, in no way, held accountable, as a
waster or trespasser, for any thing he may do with the trees,
houses, or soil of his lands. If he who does such an act has only
a particular estate, as a tenancy for life or years, it is properly
denominated waste; but, if he has no right whatever, it is then
said to be a trespass. In general, when any permanent or lasting
injury is done, by the holder of the particular estate, to the inherit-
ance, or to the prejudice of any one who has an interest in the inhe-
ritance, it is properly called waste; as where timber trees are
felled, or houses are destroyed by a tenant for life or years; or by
a mortgagor or mortgagee in possession; or by a tenant in fee
simple, where the State has reserved to itself an interest in the
trees, &c. for the use of the public.(a)

(a) Although in England the cutting of timber, by a tenant in fee simple, cannot
be deemed waste; yet if the public has an interest in the forest trees, or they are
reserved for public use, as for ship building, or the like, it is then held to be waste to
fell such trees; and the tenant in fee simple, may be restrained from cutting them
by injunction.—Jacob L. Diet. verb. Waste.—Bishop of Winchester v. Wolgar,3 Swan.
493, note. By a clause in the colonial charter of Massachusetts; and, by seve-
ral acts of parliament, all white pine trees of the diameter of twenty-four inches
and upwards, of twelve inches from the ground, growing in Maine, New Hampshire,
Rhode Island, Connecticut, New York, and New Jersey, were, under the colonial
government, reserved to the use of the crown for masting the royal navy. This white
pine, the ancient and majestic inhabitant of the North American forest, says
Michaux, is still the loftiest and most valuable of their productions, and its summit
is seen at an immense, distance aspiring towards heaven, in some instances to the
height of one hundred and eighty feet from the ground, and far above the heads of
the surrounding trees. The felling of any of these white pines was prohibited by a