Marquette Law Review Volume 100 Article 6 Issue 3 Spring 2017

A New History of Waste Law: How a Misunderstood Doctrine Shaped Ideas About the Transformation of Law Jill M. Fraley Washington and Lee School of Law

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Repository Citation Jill M. Fraley, A New History of Waste Law: How a Misunderstood Doctrine Shaped Ideas About the Transformation of Law, 100 Marq. L. Rev. 861 (2017). Available at: http://scholarship.law.marquette.edu/mulr/vol100/iss3/6

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RALEY Article as a Fulbright Research Scholar in Ireland, M. F OF LAW ILL J ) 6/12/17) 1:56 PM ELETE D OT OT N O (D DOCX . INAL -F In the traditional account, AmericanIn the traditional courts transformed the law of waste, cameThat traditional account, however, not from a history of the doctrine, This Article demonstrates there is little support for the traditional that MISUNDERSTOOD DOCTRINE SHAPED SHAPED DOCTRINE MISUNDERSTOOD M K IDEAS ABOUT THE TRANSFORMATION THE TRANSFORMATION ABOUT IDEAS RALEY A NEW HISTORY OF WASTE LAW: HOW A LAW: OF WASTE HISTORY A NEW C Y Associate Professor & Director of the Center for Law & History, Washington for Law & History, Center Associate Professor & Director of the Lee and School of Law, J.S.D., LL.M., Yale Law School, J.D., Duke Law School. This paper won the School of Law, J.S.D., LL.M., Yale Law School, J.D., Duke Law School. am very grateful to the AALS and the panel I AALS Scholarly Papers Competition for 2016. Many thanks for comments, suggestions, probing of judges who supported this work. questions and support to Michael Ariens, Molly Al Brophy, Jon Caulder, June Car- Brady, Hari bone, John Eller, Bob Ellickson, Blake Hudson, Gordon Hylton, Caroline Osborne, Osofsky, and Dan Sharfstein. I wrote this and I am particularly grateful to the library of Trinity College Dublin, and the support of and I am particularly grateful to the library of Trinity College Dublin, and the support Niamh Connolly, Oran Doyle, David Kenny, and, most of all, Yvonne Scannell. I am grate- ful for the research assistance of Kerriann Laubach.
4F radically diverging from British courts around the time of the American fromradically diverging the time British courts around of the Revolution. Some of the most theorists of American influential legal history as evidence that Americanhave used this account law economics. is driven by Due account of waste by influential scholars, this traditional to its adoption law has shaped not only our understanding of property law, but also how we view the process of transforming law. the modernbut fromthe benefits of an elaboration of rule in comparisonwith the drawbacks of the earlier, common lawrule. A full history, reaching back to the common not been written until now. This Article law doctrine has of waste,provides a legal history of the doctrine exploring the original com- century transformation,mon law doctrine prior to the nineteenth and demon- strating the multiple flaws of the traditional account. story of a radical and American A full motivated break by land development. account demonstrates change was that the not radical, but rather consistent with centuries of British law. The shift also was not particularly American, but rather roughly contemporaneous with and parallel to a British shift. Most importantly, shifted doctrines to address a change in courts in both countries 39285-mqt_100-3 Sheet No. 100 Side A 06/19/2017 09:53:44 06/19/2017 A No. 100 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 100 Side B 06/19/2017 09:53:44 M K C Y ...... 889 ULE R OURTS AW C L CCOUNTS OF OCTRINAL A ation ...... 874 D [100:861 [100:861 OMMON VOLUTION TO THE MERICAN MERICAN ...... 867 ...... C E ste Law ...... 881 ...... ste Law A gland ...... 890 AW Forbidding Waiver ...... 887 Forbidding Waiver...... HE HE L RADITIONAL RADITIONAL :T :T ...... 876 of Transform the New Rule ...... 870 ...... the New Rule T IMING OF THE Land Use ...... 881 ...... Land Use ift to the New Rule ...... 872 ...... ift to the New Rule AW AW ASTE T L L t with Wa Waste Law in America ...... 893 ...... Waste Law in America W Law in En RITISH AND dard ...... 884 dard ...... B ASTE ASTE ULE AND OUNDARIES R W W B ) 6/12/17) 1:56 PM AW MARQUETTE LAW REVIEW MARQUETTE ...... 863 L ELETE D SE AS ISTORY AND THE OT OT U ULE IN BOTH N H ISTORY OF ISTORY OF R O H H (D Husbandry Stan 886 ...... Land Uses Law ...... 873 EW AND OMMON RANSFORMATION OF RANSFORMATION L N C T 1. Waste, Boundaries & Boundaries 1. Waste, 2. and the Good The Boundary Maintenance Function 3. Maintenance The Boundary Function & Shifting 4. Merrill on the Moment Law ...... 870 1. Horwitz on the Shift to 2. Sprankling on the Sh 3. the Transformation Purdy on of American Waste 4. The Boundary Function & Formalization ...... 897 Formalization ...... 899 ...... Understanding the Shift EW EW DOCX . N ODERN HE HE NTRODUCTION INAL THE A. Early Surveying ...... 876 ...... Surveying A. Early Enforcemen B. Boundary A. 867 ...... The Common Law Rule of Waste B. Traditional Accounts of the Transformation Waste of M A. Transforming Waste A. Transforming B. B. The Transformation of AND C. The Transformation of Waste Law in America: Treatise D. The Transformation of Waste Law in America: -F This new history of waste law of the trans- a critique of theories also offers RALEY III. A III. 862 to response than in rather title recordation, and of surveying the technology economic forces. formation of law, along with methods current history that privilege in legal and economicsocial factors circumstances the traditional and largely abandon legal history methods of doctrine. Abandoning doc- of tracing the evolution social factors has detracted fromtrine and privileging accurately understand- ing both legal transformation and the role of law—and particularly property law—in American that law society, suggesting is much more re- flexible and change than itsponsive to social is in everyday politics. necessarily I I. 4F II. T II. IV. A N V. T V. 39285-mqt_100-3 Sheet No. 100 Side B 06/19/2017 09:53:44 06/19/2017 B No. 100 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 101 Side A 06/19/2017 09:53:44 4 §§ 381, 392 1780–1860, at 30 ROPERTY AW ...... 915 P L 863 863 EAL R the value of the prop- the value of the RITIQUE OF RITIQUE C ETHODS MERICAN § 56.01 (Michael Allan Wolf ed., M A AW OF L HE increased ROPERTY ,T P The puzzle of the original rule, The puzzle of the original rule, AW AND A AW AND 5 L URTS EAL urts forbade waiving waste liability R For decades, waste law has present- W HEORY AND HEORY AND 1 T to make precisely those improvements. NTRODUCTION ASTE OHN RANSFORMATION OF W T &J tenants who I. I OWELL ON HE ISTORY ) 6/12/17) 1:56 PM INOR H ,T , 8 P M ELETE D ...... 920 ...... A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW As a result, courts would punish, again with treble treble with again punish, courts would As a result, ISTORY OF ISTORY OF OT OT 3 note 1, § 56.02. EGAL Other John persuasive legal thinkers, including ORWITZ N OWELL 7 H L O OLSTON (D J. H R. P C supra treble damages EW , Section II.A. Section III.B.4...... 905 N History ...... 916 DOCX . ODERN ONCLUSION HE ORTON HIFT ALEIGH ICHARD OWELL INAL A. A Modern Critique of and Methods Theories of Legal B. 918 ...... A Prescription for Modern Legal Historians S M -F In Horwitz’s account American courts broke from the English Even more oddly, the co 6 2 .Id. . See infra . See infra 7 3 2. R 1. R 6. M 4 5. P Morton first addressed the puzzle of waste Horwitz law, explain- Waste the estate that detri- a tenant for changes to law punishes M K RALEY C Y however, remained. ing socio-economic circumstances for the mod- that he argued account ernization of the rule and, simultaneously, strict rationalized the old, rule. mentally impact the inheritance. (1977). (1910). 2000). Eventually, courts replaced the strict commonEventually, courts replaced the strict law rule with a modern, more lenient and value-driven rule. 2017] 4F damages, tenants whomade valuable improvements—despite leases that had permitted the tenant rule and embraced a uniquely American perspective that supported economic development a lack of and natural resource exploitation; similar the pressures for land development in England then explained old, strict rule. VII. C within a contract. VI. VI. T to scholars.ed a peculiar puzzle The common lawpun- rule strictly to went so far as law property; indeed the common ished changes to with punish erty. 39285-mqt_100-3 Sheet No. 101 Side A 06/19/2017 09:53:44 06/19/2017 A No. 101 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 101 Side B 06/19/2017 09:53:44 M K .L. , 94 C Y HI Punish- 12 , 63 U. C Thomas W. Mer- See y one legal function: y one legal function: [100:861 [100:861 g the common law well before the story of waste within the British note 9, at 663–64. Recognizing these two ex- functions history of English waste law and its ich were on the land itself designated damages. In ameliorative waste, the 11 icates a key problem with traditional ac- supra 10 adopted this view. this adopted 9 and the Doctrine of Waste in American Property Law es. Yet, as this Article will demonstrate, the note 2, §§ 381, 395. ) 6/12/17) 1:56 PM The Antiwilderness Bias in American Property Law The Antiwilderness Bias in American Property The American Transformation of Waste Doctrine: A Pluralist Inter- . 653 (2006). MARQUETTE LAW REVIEW MARQUETTE ELETE supra EV , D OT OT L. R N URTS O (D Parts II, III. &W and Jed Purdy, and 8 ORNELL . 1055, 1058 n.19 (2011). Purdy briefly mentions the rule against injury to title, DOCX . EV INOR Jedediah Purdy, INAL , 91 C -F . See infra .L.R .See 12. M 10 9 11. Previous function entirely. Mer- narratives tended to ignore the boundary-making 8. John G. Sprankling, This Article demonstrates one but that waste law performed not One might that socio-economic argue are a weak pressures expla- Only the necessary historical perspective provides a long-range . 519, 533 (1996). RALEY ARQ EV rill only gives the old rule of preventing injury to the title a footnote. rill, Melms v. Pabst Brewing Co. M but does not discuss it further. Purdy, 864 Sprankling 4F R changes to the property increase rather than decrease value. changes to the property increase plains why the common forbade ameliorative law rule strictly waste, often punishing it with treble ing such changes seems illogical if one looks to waste law solely for maintaining property valu boundary-maintenance function explains this outcome.Common law courts punished ameliorative waste because such changes jeopardized the evidence of boundaries, wh via mapsby land uses rather than on paper or metes and bounds as we transformation—chapters that have been missing from the literature— this Article demonstrates the common that in law waste performed both of these distinct functions. two maintenance distinct functions: property value and boundary maintenance. By developing a pretation nation for the puzzle of the strict commonthe strict the puzzle of nation for law is, however, rule. There a more when problem: critical the history, examined not in detail, does of transformation.the traditional account support later doctrinal shifts—andcontext to understand to fully explain the commonpuzzle of the strict law the first rule. This Article provides full history of waste law, examinin transformation, with along the hi ind courts. Such a perspective counts of waste law.the traditional transformation Incorrectly, story presumes waste that historically performed onl maintaining property values. 39285-mqt_100-3 Sheet No. 101 Side B 06/19/2017 09:53:44 06/19/2017 B No. 101 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 102 Side A 06/19/2017 09:53:44 have 15 . 1209, 1227 (2007). . 1209, 1227 (2007). EV 865 865 .L.R O and Jed Purdy, 14 , 72 M glish legal tradition. This glish legal tradition. . 1095, 1099 n.9 (2011). EV s responsive not to the socio- s responsive not .L.R ability to transformation and the ARQ glish and American doctrines shifted , 94 M 13 ) 6/12/17) 1:56 PM eep fidelity to the En eep fidelity to the ELETE note 8, at 533. D note 9. A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT note 11, at 1055 (explaining that waste law “has held a peculiar fasci- N supra O supra (D supra Doctrines of Waste in a Landscape of Waste 16 DOCX . Purdy, § 381. INAL Merrill, -F .Id. .See See 16. For quanda- their part, property scholars often use waste law to engage theoretical 13 14. Sprankling, 15 This Article demonstrates that the modern rule, value-focused Establishing this more accurate understanding of waste law mat- Ultimately, this Article the na- critiques both a particular theory of M K RALEY C Y ries. which does not punish ameliorativewhich does waste, results from modern meth- which titles, and recording ods of surveying need for the displaced the Waste act as a boundary. landscape to description of the physical law and modernization of the professionalization changed as a result of which with innovations in title recording, surveying, along made the boundary maintenance function obsolete. As eliminat- a result, courts the remaining function and reemphasized ed the boundary value func- tion, maintaining a d professionalization and modernizationin response to the of surveying. Asthis Article will establish, law wa economic of land development pressures advances but to the routine of technology, particularly in a situation wherebe ad- a doctrine could justed by removing one now-obsolete prong of a test and reinforcing the existing ones. other persua- Like Horwitz, law. ters beyond the bounds of property sive legal thinkers, including John Sprankling American doctrinal shift mirrored a contemporaneous English one. American doctrinal shift mirrored a contemporaneous one. English Rather than America’s of land changing to take advantage doctrine opening to development, both En nation for property theorists”). John Lovett also has argued for the importance of waste. of waste. nation for property theorists”). John Lovett also has argued for the importance John A. Lovett, Posner seems to have considered disagreeing, but acknowledged that Lovett “argues force- Posner seems to have considered disagreeing, but acknowledged that Lovett “argues fully for the continued practical importance of the doctrine of waste.” Richard A. Posner, Comment on Merrill on the Law of Waste 2017] in modernexpect society. 4F employed the traditional story of the transformation of waste law to the transformationsupport larger assertions about of American law to support economic development and, in particular, industrialization. Waste law has regularly figured into American for the last legal theory fifty years. ture of American law and its amen methodology of modern legal history—a methodology largely adopted 39285-mqt_100-3 Sheet No. 102 Side A 06/19/2017 09:53:44 06/19/2017 A No. 102 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 102 Side B 06/19/2017 09:53:44 M K C Y [100:861 [100:861 orts the role of law—and This Article This that argues 17 en turns to the shift to the mod- operty rights, more difficult to olars have described the doctrinal olars have described the doctrinal This Article argues for reintegrating Article This d ignoring consistencies maintained abandoned their native methodology their native abandoned of rine in favor of law and society approach- of law and rine in favor rines ultimately dist ) 6/12/17) 1:56 PM MARQUETTE LAW REVIEW MARQUETTE ELETE D OT OT N O (D Section II.B.1. DOCX . INAL -F . See infra 17 Following introduction (Part I), Part II sets forth the original this The focus on law achieving social, eco- as a construct effective for RALEY 866 to Horwitz’sdue field. on the vast influence 4F legal historians have largely have largely legal historians achieve. The argument does not aim the practice of exam- to displace ining the impacts of social and economic forces on law, but rather to far on the continuum,suggest that we have gone too favoring social explanations for legal change an through the evolution of doctrine. the distinctly legal history methodology of tracing the evolution of doctrine and simultaneously demonstrates methodolo- this corrected gy. common law rule of waste. Part II th ern rule, outlining how various sch shift. Parts III and IV cumulatively develop a new history of waste law. focuses on waste Part III law prior to the doctrinal shift, detailing maintenancethe previously undescribed boundary function. Part III elaborates the process of marking land uses and boundaries through the role of waste law in preventing changes that would muddy those tracing the evolution of doct evolution of tracing the social and economices that seek legal change. explanations for When factors and economic focus on social historians circumstances that may influence law without giving muchlaw’s power attention to resist to maintainsocial change and precedents, they not only fidelity to past but also skew perceptions of historical accounts, create less accurate the role of law the social context above tracing in society. Privileging legal doct the evolution of law—inparticularly property American it was society, suggesting that much more flexible and responsive to socio-economic change than it necessarily was. nomic, distort the nature of law and spatial goals can as an independ- ent and stable structure of society—one that much more often than not affirms existing rights and investments, particularly where property is concerned. Too much emphasis on social contexts, and particularly on anachronistic future outcomesas environmental such destruction, ne- glects the role of law as a conservative force in society—one that makes changes, particularly in pr 39285-mqt_100-3 Sheet No. 102 Side B 06/19/2017 09:53:44 06/19/2017 B No. 102 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 103 Side A 06/19/2017 09:53:44 , OWELL note 2, §§ 390– supra , CCOUNTS OF THE 867 867 URTS to recover against a A AW 18 L &W INOR ASTE W The common law has long pro- The common has long law detrimentally impact the inher- IV summarizes the merits this of RADITIONAL 20 1 (1894). But not all scholars agree on the T using waste law to maintain exist- in American law. Part IV draws on lops a prescription for modernlops a prescription legal e role of law in society. ASTE W ULE AND AW OF R L ) 6/12/17) 1:56 PM HE AW L ELETE ,T RANSFORMATION OF RANSFORMATION D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW A. A. of Waste The Common Law Rule T note 1, § 56.01. OT OT N EWES O B supra (D , OMMON C NSTIS DOCX . A Waste estates, re- arises in a variety of contexts, including life OWELL HE INAL 19 -F note 1, § 56.02. Bewes finds that in the oldest formulation, only three parties were lia- note 1, § 18. For the sake of simplicity, I will use the terms“reversioner” and “plaintiff” synon- 19. P 20. For liable for waste and the parties sit- further discussions of how both the parties It is appropriate to begin with the strict common law rule of waste. M K II. T RALEY YNDHAM C Y A cause of action for waste allows a reversioner tenant for changes to the estate that tenant for changes to the estate itance. supra or ble for waste, because they were liable via the operation of law, rather than “by contract quasi contract”: “tenants in dower and by the curtesy, and guardians in chivalry.” W the history provided in Part III to explain howPart III to explain provided in the history technology changes in newprovided methods of maintaining much boundaries more effec- wastively than by simply possible its final section, Part ing land uses. In that mayhistorians to correct recent tendencies skew our understand- ing of legal transformation and th 2017] then Part IV use boundaries. land a new provides trans- of the account formation, in British law both and new account of the transformation of waste law and details how it provides a more of waste accurate understanding law when compared with Part the traditional accounts. Vtiming addresses the of the chro- the answers law waste of history new how the shift—explaining the new history to develop a cri- Finally, Part VI uses nology question. theory and methodstique of current on why in legal history, focusing so many similar accounts of waste lawac- existed, but none of those the doctrine withincounts engaged context prior to the its historical Part then deve doctrine shift. This 4F versions, leases, and dower property. 93 (describing, separately, who is “punishable for waste” and who is “entitled to complain93 (describing, separately, who is “punishable for waste” and who is “entitled to of waste”). Initially, formal procedures limited the parties able to receive relief. P ymously will next take possession of the property and who would be al- for the party who leging waste. I will use the terms party who “tenant” or “defendant” synonymously for the Because waste. and who may be held liable for currently has rights to occupy the property on the argument made, I have simplified the ter- the technical differences have no bearing minology. uated to bring an action for waste have changed, see M 39285-mqt_100-3 Sheet No. 103 Side A 06/19/2017 09:53:44 06/19/2017 A No. 103 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 103 Side B 06/19/2017 09:53:44 , , M K , 8 ,A C Y ASTE URTS AIT AW OF W L W ROPERTY AWES OF P L &W HE ROPERTY IN P 22 The ten- EAL ,T 25 INOR ILLIAM R SSAY ON E Liability for Waste AW OF N EDMAN L AW OF R ,A Permissive waste ,L 23 during their terms, during 323 (1917) (describing two OOL NSTITUTES OF THE 21 [100:861 [100:861 113 (1877). This may be con- I S OONE ’ AW AWORTH V. Y L H T. B OKE ROPERTY “fermors” as a misspelling of “farm- “fermors” as a misspelling P EORGE OSEPH EAL OMPENDIUM OF THE but instead through some but instead through omis- HARLES R of house, woods, and men,of house, nor of eak support for the porch roof, but eak support for ,AC s not synonymous with the general term for agri- s not synonymous with the general term note 23, at 56. Although it seems to require some AW OF RINCIPLES OF THE P note 11, at 1057. There is a certain oddity to this note 11, at 1057. There is a certain oddity ,L supra , enementsto ferm.” that they have DWARDS supra E OOL note 2, §§ 380–81, 386. ) 6/12/17) 1:56 PM ENERAL G MARQUETTE LAW REVIEW MARQUETTE LAKEMORE ELETE supra 3 (1863) (describing ameliorating waste, then concluding that all 3 (1863) (describing ameliorating waste, , 256 (5th ed. 1901) (citing 2 C D OUGLAS note 1, § 56.02. , Merrill, OT OT D W. B note 9, at 662. This is not historically note 9, at 662. This is Fermors held a specif- accurate. N URTS E.g. O ENANT supra RESPASS (D , T OME OF THE supra T &W S . 425, 425–26, 437 (1908) (discussing the shifting liabilities of parties over (discussing the shifting liabilities of . 425, 425–26, 437 (1908) RTHUR ILLIAM EV DOCX . A AND INOR OWELL , 145 (1642)). See P INAL Purdy, A tenant might notice a w .L.R -F 24 68 (3d ed. 1896). See note 2, §§ 380–81 (categorizing waste as either note 2, §§ 380–81 (categorizing waste as voluntary or permissive, and later dis- 24. M 21. have translated the term Some commentators 23. Many voluntary, permissive, modern writers divide waste into three categories, 25. as to include liabil- its strictest formulation at the common law, this went so far In 22. Waste may permissive be either or voluntary. RALEY UISANCE OLUM REATISE UPON AND ANDLORD AND NGLAND ity for a house burning down by “mischance,” which suggests that liability occurs even if ity for a house burning down by “mischance,” which suggests that liability occurs the tenant was not negligent. Y waste is “either voluntary or permissive”). waste is “either voluntary or permissive”). types of waste, permissive and voluntary); 1 C types of waste, permissive and voluntary); act, if accidental, of the tenant, who must have so “misadventure[d].” 2 W rather than reinforcing the support, ignores the problem. the support, ignores the rather than reinforcing sion. arises not through maliciousarises not through actions, T L C supra G cussing amelioration within those structures); N precise evolution of liabilities and standing; see George W.precise evolution of Kirchwey, L E 868 of MarlebridgeThe Statute interests. the reversioner’s tected (Marl- fermors, that “[a]lso (1267) provided borough) time). 4F ers.” and ameliorating. shall not makeshall not sale nor exile waste, anything belonging to the t belonging to the anything ic meaning in the common law, which wa comprehends all who hold by lease for life or cultural occupations. “The term ‘fermors’ J lives or for years, by deed or without deed.” alignment, because the only difference between voluntary and ameliorating waste is that alignment, because the only difference between means that creating a third category destroys the the value of the property increases. This on the type of conduct by the tenant (act or neat alignment of a division otherwise based omission). Additionally, at first glance it suggests that ameliorating waste would not be voluntary, and yet one struggles to imagine a scenario in which it is not. The three catego- the reasons stated, may not best organize our ries are a modern trend, and one that, for thoughts on the subject. Here, I have preferred following the historic trend of treatise writ- and permissive,ers who divided waste only into voluntary treating amelioration as a sub- species. trasted with acts of god or nature, such as lightning or tempests that might also burn down trasted with acts of god or nature, such as lightning or tempests that might also burn a house. 3 W ant’s omission ultimately of the roof, creating li- results in the collapse 300 (1901) (categorizing two types of waste, permissive and voluntary); M permissive and voluntary); 300 (1901) (categorizing two types of waste, 39285-mqt_100-3 Sheet No. 103 Side B 06/19/2017 09:53:44 06/19/2017 B No. 103 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 104 Side A 06/19/2017 09:53:44 The common law law common The 869 869 28 note 20, at 9. supra with the home was valued , d the tenant tears down the 30 EWES not to change the nature of the voluntary wastevoluntary the tenant occurs, e required the reversioner to prove the reversioner e required ste strictly, holding landownersste strictly, holding re- The tenant might The tenant simply tear down the In general, the tenant “ha[d] no power to the tenant In general, 26 29 note 2, § 380. One might argue that the ameliorative appli- note 2, §§ 380–81. ) 6/12/17) 1:56 PM note 23, at 306. Bewes describes the courts as applying the note 23, at 306. Bewes describes the courts the thing demised.” supra ELETE supra , , D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW note 23, at 1 (citing Darcy v. Askwith (1618) 80 Eng. Rep. 380 (KB)). supra OT OT 27 , N URTS URTS note 23, at 2. O supra , (D &W &W OONE 31 supra , OOL DOCX . ; 1 B ; Y INOR INOR OOL INAL -F .Id. .Id. 28 31. M 29. Greene v. Cole (1669) 85 Eng. Rep. 1037 (KB) 1047. 30 27. Y 26. M The common law wa enforced Voluntary waste contained an important subcategory, ameliorative Underthe common law whether rule, allegation was the for per- M K RALEY C Y sponsible for virtually all sponsible for virtually changes to the landscape. forbade a tenant fromforbade a tenant “convert[ing] ancient meadow into arable, or ar- wood.” able or pasture into cations of waste law also protected the owner’s right to be different or idiosyncratic. Whilecations of waste law also protected the owner’s right to be different or idiosyncratic. occasionally cases do mention that the reversioner has a right to the thing that was initially in existence, such occasional comments really support an idea of individual rights do not waste, which is key to understanding the shift to modern waste law. waste, which is key to understanding the shift to modern waste law. With ameliorative waste, there is a fundamental change in the nature of the property—something the strict rule—but forbidden under that the property contains a home in a change increases the value. Suppose somewhat industrialized area of town an home to build a storefront. While the land at $60,000, the land withthe storefront is valued at $120,000. In such circumstances, the tenant committedameliorative waste. The tenant has violated the technical requirement inheritance, but the tenant has economicallyinheritance, but the tenant has advantaged rather than damaged the reversioner. The common law rule was known for its strict enforcement of the ancient law, forbidding all changes to the property, even when those changes would economically the benefit reversioner. porch, giving the reversioner a cause of action for voluntary waste. waste. action for voluntary a cause of the reversioner porch, giving missivewaste, the rul or voluntary some impairment To establish an impairment of the inheritance. of the commoninheritance, the required damage through at law of waste mechanisms:least one of three “(1) [b]y diminishing of the the value (3) [b]y impairing the burthen upon it; estate; (2) [b]y increasing the evidence of title.” acted to harmacted to property. the 2017] for permissiveability waste. When 4F common law standard “with merciless severity.” B change the nature of change the nature 39285-mqt_100-3 Sheet No. 104 Side A 06/19/2017 09:53:44 06/19/2017 A No. 104 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 104 Side B 06/19/2017 09:53:44 M K as EAL C Y R 33 NITED pro- ILLARD U 35 W Ameri- 37 but other- AMES 32 ENTURY ESPECTING R -C (1950); J AW NGLAND L [100:861 [100:861 INETEENTH E N found root in America, but MERICAN AWS OF A L REEDOM IN THE F this transformation broader to support ROWTH OF G IGEST OF THE HE ,T ) 6/12/17) 1:56 PM ,AD MARQUETTE LAW REVIEW MARQUETTE URST ELETE ONDITIONS OF If damagesremedy,been the sole had tenants H D C note 6, at 30. 34 Horwitz of the transformation created a narrative RUISE OT OT 36 C note 20, at 130. N O supra , ILLARD (D supra W , at 9 (discussing the “merciless” application of the rule, including treble at 9 (discussing the “merciless” application ILLIAM DOCX . at 55, 59. ORWITZ EWES 67 (1804). AW AND THE B. Accounts of the Transformation Traditional of Waste Law AMES INAL -F (1956). Scholars generally credit Hurst with leading American legal historians away (1956). Scholars generally credit Hurst with leading American legal historians away . See id. .Id. ,L 36. H 32. B 35. J 33 34. W 1 37 Morton J. Horwitz, expanding on James Willard Hurst’s approach The strict common law rule initially Remediesfor waste and damages injunctions both included RALEY URST ROPERTY TATES wise waste enforced lawdamage using treble stringently, awards, wellchanges to prevent as injunctions might to land that evi- destroy the title. dence of of waste law in the United States, using this narrative as evidence of the developing distance between and American English law. from a strict examination of legal reasoning to developments, a more robust account of legal incorporating the social and economic contexts of those changes. 1. Horwitz on the Shift to the New Rule into analyses of legal change, of incorporating social context might pursued ameliorative have waste and made changes to the purposes of economicproperty for the development, but both treble damage awardsprevented such choices. and injunctions eventually American courts adopted a new approach to waste. A number have examined of historians and property theorists the adop- tion of the new used rule and the nature and malleabilityassertions about of law. awards. bothered with Courts rarely nominal damages, P H S very effectively because so many of the cases of waste involve not a property that will re- will be held by one person before being passed turn to the same person, but a property that time we are protecting John’s right to receive the on to another. In other words, much of the himfalling-down barn that his uncle gifted to to receive (after a life estate), not John’s right back his falling-down barn. 870 4F duced one of the foundational accounts of legal history using a socio-duced one of the foundational accounts economic lens. He set out to prove that “[b]y 1820 the legal landscape in Americaonly the faintest resemblance bore to what had existed for- ty years earlier.” damages, in cases of ameliorative waste). damages, in cases of ameliorative waste). 39285-mqt_100-3 Sheet No. 104 Side B 06/19/2017 09:53:44 06/19/2017 B No. 104 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 105 Side A 06/19/2017 09:53:44 44 THER Har- O Real Proper- In 1930 a 41 ROPERTY AND P The author con- 871 871 42 EAL R . 1130, 1131 (1930). ng land from con- both social EV AW OF L .L.R 43 HE ARV ,T 40 , 43 H IFFANY ich private law adjudication became a crea- T existing condition of land. Fromexisting condition the moment ) 6/12/17) 1:56 PM t existing claims, held by smallholders, in order ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW HORNDIKE OT OT T note 16, at 1227. N article by an unnamed author briefly stated that the O 951 (2d ed. 1920). (D supra Horwitzconcluded that “the premise the that underlay AND ERBERT L DOCX 39 . H at 54. at 58. INAL 38 -F . Liability for Ameliorative Waste .Id. .Id. .Id. .Id. 42 43 44. Lovett, 38 39 40 41. 1 Moreimportantly, Horwitz forces behind the particular identified Horwitz’s argument regarding waste law was not entirely novel. Horwitz’s argument regarding waste law was novel. not entirely M K ’s described “[t]he general tendency of American’s described “[t]he general tendency courts” as “re- RALEY C Y NTERESTS IN vard Law Review waschange in doctrines in England by “the rise of the indus- spurred trial movementcentury.” of the early nineteenth that transformation economic. as “[A]n economy on clear- dependent for economicing land enforce a “could not he argued, development,” rule of maintaining the fromof independence therefore, American England, jurists devoted modifyingtheir efforts to overturning the received common or law doctrine.” changing law of waste was that it waschanging law of to encourage imme- preferable diate improvement by tenants.” “the demonstrated simply law waste of story the Horwitz, For understanding of private lawtransition from as an eighteenth century fixed doctrine to one in wh tive instrument for promoting social change and economic growth.” I More specifically, he saw the changes in waste law as a part of a larger of commodifying land and “freei project trols and inconvenien 2017] and dras- rapidly law English had transformed argued, he courts, can tically. 4F cluded that American followed courts suit “in an effort to encourage the rapid development of property.” ty English lawstrict[ing] the application of the of waste, in order to adapt it to the conditions of a newand growing country, and to stimulate the development tenant in possession.” of the land by the Other, more of the transformation skeletal accounts of waste already had followed Hurst’s example to social forces for sources and looked For example,of legal change. the 1920 edition of Tiffany’s 39285-mqt_100-3 Sheet No. 105 Side A 06/19/2017 09:53:44 06/19/2017 A No. 105 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 105 Side B 06/19/2017 09:53:44 50 53 M K C Y Horwitz’s nar- Horwitz’s 46 [100:861 [100:861 English waste law, in 54 oitation of virgin land.” This bias, he argued, was This bias, he argued, not 49 the transformation of waste law understanding the transformationunderstanding the “the most obvious example of anti- For Horwitz, story of waste the law 45 Sprankling argued that law Sprankling argued developed a 48 ) 6/12/17) 1:56 PM Sprankling cast the strict, common law rule as 52 MARQUETTE LAW REVIEW MARQUETTE ELETE note 8, at 533. D OT OT N note 9, at 661. supra O Sprankling focused on the role of law Sprankling focused in the destruc- 51 (D 47 supra DOCX . at 521. at 519. at 521. at 522. at 533. at 523. at 524–25. . INAL -F .Id. .Id. .Id. .Id. .Id. .Id. .Id .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. 45. Purdy, 46. Sprankling, 47 48 49 50 51 52 53 54 The transformation of waste law formed heart of his evi- the very Like Horwitz, utilized Sprankling RALEY dence; it was, by his estimation, by it was, dence; wilderness retooling.” tion of wilderness land. as evidence of a muchas evidence of a larger trend in American law. substantial bias towardssubstantial bias development. When examining English property law, Sprankling found that the “systempro- focused on preserving the condition of land already in ductive use in a mature agrarian economy.” When spoke of meeting Sprankling he did not the new conditions, mean that law simply to meet flexed new but rather that scenarios, judges specifically reworked the common law economic to “further development.” 872 to make the economic for resource a capital-generating as it available development continent.” of the formed narrative to a contributing of how Americans overall story the the commonreshaped law economic to support burgeoning develop- ment, of claiming and the project industrialization both and taming the land. 2. on the Shift to the New Sprankling Rule 4F rative, along with Hurst’s more influence generally, shaped Spran- kling’s environmentalapproach to of waste law. waste of a force for conservation. English property law,a force for conservation. English if adopted wholesale, the expl “was a poor tool for encouraging accidental, but rather the product of “judges retool[ing] English prop- of “judges retool[ing] English accidental, but rather the product erty law doctrines to meet in the new the conditions United States.” 39285-mqt_100-3 Sheet No. 105 Side B 06/19/2017 09:53:44 06/19/2017 B No. 105 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 106 Side A 06/19/2017 09:53:44 65 To He He 64 The 63 Purdy 56 Spran- 60 62 55 873 873 45–47 (2010). other forces, finding that “the other forces, rts adopt the new rule “to pro- the English rule would have inhib- ROPERTY P singly favored conservation.” singly favored and, briefly, in his recent book. and, briefly, in 61 EANING OF As the American a result, he describes courts ) 6/12/17) 1:56 PM M 59 HE ELETE ,T D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT N note 9, at 653. note 9, at 654. URDY O P (D supra supra DOCX The American courts were, “[d]riven by [an] he concluded, . 57 at 534. at 534–35. at 535. at 661. 58 EDEDIAH INAL 66 -F .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. 63. Purdy, 64 65 66 55 56 57 58 59 60 61. Purdy, 62. J Like both Horwitz Purdy uses the transformation and Sprankling, Sprankling contrasted the commonSprankling contrasted law with the modern rule, Purdy develops his analysis of waste law his analysis of waste Purdy develops in an article focus- both M K RALEY C Y both accepts and challenges the narratives built by Horwitzboth accepts and challenges the and HorwitzSprankling. First, Purdy accepts primary and Sprankling’s argument that economic“help[] to explain the change.” forces examines the transformation of waste law asking “[w]hat causes ac- count for the development of property regimes across time.” English doctrine, Sprankling concludes, “would have arrested devel- “would have arrested concludes, Sprankling doctrine, English opment.” this explanation, however, Purdy adds Purdy however, this explanation, emerges however, only upon consideration of two other in- full story, fluences on waste doctrine: republican political culture, and the belief that European settlers were a natural-law under obligation to subdue the American wilderness and make it a fruitful, agrarian landscape.” Purdy ultimately concludes that cou mote efficient use of resources that ited.” 2017] quo.” status land-use the to perpetuate “tended particular, 4F instrumentalist vision.” which he sawas American waste courts refashioning to allow land clearing. as “resoundingly jettison[ing]” the English approach to waste. jettison[ing]” the English approach as “resoundingly kling concluded that given the landscape conditions in England, the conditions in the landscape that given kling concluded waste law “unsurpri country’s 3. Purdy on the Transformation of American Waste Law exclusively ing on the topic 39285-mqt_100-3 Sheet No. 106 Side A 06/19/2017 09:53:44 06/19/2017 A No. 106 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 106 Side B 06/19/2017 09:53:44 M K 67 C Y Purdy 69 [100:861 [100:861 Melms v. Pabst Brewing se patterns and forbid- se patterns and and economic dynamism.” Ulti- at 661–62. decision, adopting the good adopting decision, Id. law with rule as “consistent the ng-term plans, [and] the right to be Jackson theory—the “fundamental question,” He cites a dissent, which noted that a dissent, which He cites 68 in American regimes land generally.” . t into existing land-u ) 6/12/17) 1:56 PM MARQUETTE LAW REVIEW MARQUETTE ELETE D OT OT note 11, at 1059. N O (D supra He reasoned that the new waste rule was less about indi- about less was rule new waste the that He reasoned He of extended his interpretation 70 Jackson v. Brownson Jackson v. 71 74 DOCX . at 668–69. at 670. at 676. at 1060. The new rule, Merrill found, was way a to manage conflict INAL Merrill, then, saw the transformation of waste law in terms of 72 -F . Id. . Id. . Id. .Id. .Id. .Id. .Id. 73 67. a practical, economic justification behind the new waste rule and Purdy cites both 68 69 70 71. Merrill, 72 73 74 Following the trend, Merrill the transformation used of waste law When it comes the transformation, to narrating Purdy relies pri- RALEY husbandry approach because “Americanhusbandry approach this flexi- courts envisioned which to the fixity of the English rule, bility in contrast they sawpo- as the tenan tentially locking finds that other courts followed the finds that other ding the mutually activity that the American beneficial standard embraces.” 4. Merrill on the Moment of Transformation as a way of the function of property in socie- of engaging the question ty. Merrill viewed the strict, common view right,” and with of property as an individual promoting “auton- omy, security, the ability to make lo different.” 874 of waste law make to argument larger a American about law. property The transformation in waste law, of “is suggestive concludes, Purdy work of values at the plurality 4F when there were temporary transfers that are likely to cause such con- flict. the old rule was to a new, “inapplicable unsettled country.” marily on mately, Purdy uses this multiple causation approach to argue that “a default rule can have approach to argue that mately, Purdy uses this multiple causation functions.” normative as well as efficiency-enhancing multiple cultural reasons (both economic and sociopolitical). Purdy argues that the new sociopolitical). Purdy and multiple cultural reasons (both economic rule has a “mixed On the one hand, it “promot[es] profile.” efficiency in contracting.” On convincingly explained as an expression of the the other hand, “its introduction can be republicanism then-current commitments in America to as he puts it—of “whether property is an individual right or social in- social or right individual an is property “whether it—of puts he as stitution.” the continual conflict in property the continual conflict in property vidual rights and more “the view about of property as a social institu- tion.” 39285-mqt_100-3 Sheet No. 106 Side B 06/19/2017 09:53:44 06/19/2017 B No. 106 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 107 Side A 06/19/2017 09:53:44 84 Melms Whereas 82 Restatement of Merrill de- 77 76 875 875 , 245 N.Y.S. 402 (App. Div. 1930), a New re- York case that For Merrill, new the rule 79 83 , reversioner to maintain idio- individuals to reach the cor- , a Wisconsin case that adopt- luded the new rule embodied for inclusion in the for inclusion in Melms Merrill concluded that the 80 Melms aff’d mem. per curiam ) 6/12/17) 1:56 PM Brokaw v. Fairchild decision. ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW and note 11, at 1082–83. OT OT Melms note 11, at 1060. 78 85 N , 177 N.E. 186 (N.Y. 1931). O (D supra supra , 104 Wis. at 13–15. Merrill that the American concluded Law and the Institute DOCX . 81 at 1083. at 1080. .” Merrill, that persuaded the New that persuaded a new York legislature to adopt statute INAL -F . Id. . Id. . Id. . Id. . Id. . Id. . .Id. .Id. .Melms as a landmark as a in waste case law“a bellwether to our assessing for 82 83 84 85 81 80 75. 104 Wis. 7, 8, 79 N.W. 738, 738 (1899). 76. Merrill, 77 78 79. 237 N.Y.S. 6 (Sup. Ct. 1929), Merrill dismissed by Horwitz, given the explanations Purdy, and 75 M K RALEY C Y fostered development, because it allowed society to determine “the than maintaininghighest and best use of land” rather existing uses. aff’d mem. per curiam Sprankling, arguing that “[the] transformation arguing that Sprankling, was not a manifestation economic social and of inexorable it was change. Rather, a top-down reform by the Legal Realist introduced movement.” At a more theoretical level, Merrill conc an overall shift in American jurisprudence toward a more social con- cept of property. 2017] Co. 4F scribed two conflicting decisions— ed the new rule, jected the new rule—as well successful lobbying after as subsequent, Brokaw in line with the the strict, common law rule allowed the syncratic views the ideal use of his property, the new about al- rule lowed the lawof to “facilitate the efforts rect answer, without regard to what particular individuals with possibly idiosyncratic views might think.” understanding of the basic purposes of the basic understanding property law.” of New York Law Review Commission favored the new rule because it “embod[ied] the view of property as a social institution.” Property rule prevailed because “[t]he Newrule prevailed because York reform in- proved to be highly fluential with bodies such as the American Law Institute, which also withadopted a test consistent 39285-mqt_100-3 Sheet No. 107 Side A 06/19/2017 09:53:44 06/19/2017 A No. 107 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 107 Side B 06/19/2017 09:53:44 M K C Y This This 87 ULE AND ULE R AW Each “map” de- L 89 rior to industrializa- iring the evidence of iring the evidence [100:861 [100:861 OMMON C HE land and recorded land owner- itional formulation of the rule in :T OUNDARIES B 3, 7 (1990) (describing the origins of the con- AW not particularly clear without an un- L surveying land p Understanding the true reason for the reason for the the true Understanding SE AS upon it; (3) By impa U This part begins with history of a brief ASTE 88 EOGRAPHY A. Early Surveying A. Early W .G resentations of the territory. ) 6/12/17) 1:56 PM AND The Nation-State, Paris and Cartography in Eighteenth- and Nine- IST L MARQUETTE LAW REVIEW MARQUETTE H ELETE D OT OT N , 16 J. note 23, at 2. ISTORY OF ISTORY O H (D Section III.B. Section III.B. supra , EW DOCX . Josef W. Konvitz, OOL Waste law maintained boundaries because it prevented INAL 86 -F . See infra . See infra .See 87 88 89 86. Y Each of these accounts of the change assumedthese accounts of Each of that waste law pro- To provide this historical context, this Part describes the process of this Part describes the process of To provide this historical context, The first documents described as “maps” of kingdoms were lists III. A N RALEY teenth-Century France shift, which not only in America happened butin the very differ- also ent land development of the of England, requires a full history context a history thatdoctrine, and particularly to the doctrine be- looks back fore the shift to determine its multiple purposes. This Part explains the detailing howhistory of the doctrine, waste law protected historically The first hint of value but also property boundaries. not only property is clear in the trad this second function the common law. The common law required damage through at least one of three mechanisms: diminishing “(1) By the value of the estate; the burthen (2) By increasing title.” vided only one legal function. vided only tion. bounding land in English law, explaining how waste law maintained boundaries in a system that allocated thanship through descriptive rather visual or physical markers, bounding rather than through pre- through land use and butting and cise surveying technology. rule, in and of itself, however, is derstanding of the processes of cept of a map within cartography in France). 876 4F early surveying. rather than pictorial rep changes to the land that would impair the evidence of the title. scribed the various feudal leaders beneath the king, the territories scribed the various feudal leaders such as the numberheld, and their duties to the king of men providing 39285-mqt_100-3 Sheet No. 107 Side B 06/19/2017 09:53:44 06/19/2017 B No. 107 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 108 Side A 06/19/2017 09:53:44 Sib- 95 ATIONAL N He ex- He 94 URVEY OF THE S Sibbald also COTTISH 92 S OR , 877 877 is diverse; in the Entrance, on Shortly thereafter, he Shortly thereafter, 91 ESCRIPTION D Sibbald warned his readers Risdon describes the climate, 93 In his extensive book, he in- In his extensive book, 96 Devonshire 97 OLLECTIONS OF THE omitted from the listing of the This type of survey, whichof survey, type This was the County,” “the chief products “the chief products the County,” 90 the C ncerns them be not insert[ed].” in ants, Animals, Mettals, Substances, cast rveys listed allocated rights in descrip- rveys listed allocated rights in g to answer his advertisement. HOROGRAPHICAL C ) 6/12/17) 1:56 PM HE ,T ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT ISDON N R O (1714). (D EVON DOCX . D (for example, “[t]he Glebe and Soil of RISTRAM INAL (1682). Part of the Shire, the Mould standeth most upon white Chalk, which is passing -F .Id. .Id. .Id. .Id. .Id. .Id. 97 90 91. Robert Sibbald, Advertisement, 92 93 94 95 96. T For example,a survey century, the seventeenth of as late as the end Mirroring these maps of kingdoms, through the sixteenth century East M K RALEY OUNTY OF IBRARY C Y bald’s warning likely sought to ensure that no one later complained werethat his properties and rights King’s territories. century surveys and mapsand the first half of the seventeenth of es- tates in land were not visual depictions of streams, forests, fields, and manor houses. Rather, the su tive, but not visual, form. For example, in 1714, Tristram Risdon pub- Devon. lished a survey of the county of more of it, per- a visual depiction a region than of attributes of a list than a modernsisted longer might reader guess. maps.lists rather than resulted in of Scotland In 1682, when King Royal, Sibbald Sir Robert Sibbald as Geographer Charles II appointed set out to make a new survey of Scotland. plained, “The answers to these Queries that no is earnestly desired person may complain, if what co up by the Sea are peculiar to the place.” up by the Sea are thereof,” along with “[w]hat Pl requested lists of “the Nature of requested lists C L 2017] of war. event in the service knight 4F the good for Sheep and Corn; a little farther it consists of a red and blue Marle, is no which it be rocky, but an earthy Substance; this Soil is most natural for pasturing of Beasts, though plentifully furnish’d with Corn”). landscapes, industries, and resources of the land, along withlandscapes, industries, and resources a history of both property and political control. printed a large advertisementprinted a large entreating the many Scotland nobles of to send him lists of “[w]hat Seriffdomes, Baillieries, Stewartires, Regal- them?” and Burrows they have under Baronies, ities, of the consequences of failin of the consequences 39285-mqt_100-3 Sheet No. 108 Side A 06/19/2017 09:53:44 06/19/2017 A No. 108 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 108 Side B 06/19/2017 09:53:44 M K C Y RT OF A THE WHOLE , Like others, Carew The surveyor found The surveyor found OR : Carewdiscusses also The early surveyor’s 101 [100:861 [100:861 103 100 106 at 242–43. Id. (1769). URVEYOR S 242 (John Wing ed. 1699). Wing himself 102 ORNWALL county, but includes no drawings or but includes county, C ount of land each held, and their var- held, ount of land each Similarly, Richard Carew’s survey of Carew’s Richard Similarly, OMPLEAT C 99 URVEYING S HE URVEY OF ,T S building, but no other illustrations or maps or illustrations no other but building, of ODY OF ) 6/12/17) 1:56 PM B mmons such as fire-bote. HE Risdon focuses more Risdon con- listing territorial on MARQUETTE LAW REVIEW MARQUETTE ,T ELETE 98 D EYBOURN L OT OT N AREW OMPLEAT 102–03 (5th ed. 1722). O C (D AND Notably, as of 1699, Vincent Wing finds that “very few Authors of Survey- ,AC ILLIAM 104 L Such books included legal descriptions of different rights Such books included legal descriptions DOCX . at 102. at 12–13. ING 105 ICHARD W INAL .Id. . See id. .Id. . See id. .Id. -F .Id. .Id. 104 105 101 102 98 99 100. R 103. W 4 106 The manor survey performed rather the sameas these function The surveyor kept track of this complexThe surveyor kept track of this system. Notably, rather RALEY INCENT URVEYING OF on land and different types of estates in land. on land and different types of estates larger surveys, cataloging legal rightslarger surveys, cataloging through lists. The manor survey the am tenants, listed the various ious upon rights co the in someprocess by which detail the may a person claim a particular le- the and how to maintain for tin to dig ground on which of portion gal claim on an annual basis. through bounding devotes approximately one and a half pages to the topic. guidebook explained the nature of a manor:guidebook explained the nature “A Mannor then consists of Lands, Wood, Meadow, and Arable, Pasture Messuages, Tenements, Services, and Hereditaments, Whereof part are Demesnes, being such as anciently, and ultra memoriam, Lord has ever used, occupied the and manured with the Manor-house. The rest are either Free-holds, S 878 one drawingcludes a of at all. the landscape forth. and so trols, sherrifdoms, 4F than teaching geometry, early guides for surveyors taught basic prop- erty law. maps the region. to visually represent draws crops, animals, survey by listing resources, up his and the legal of the or Hundreds, jurisdictions, ing have touched upon” the subject of “Directions for taking the Map of a County.” “Directions for taking the Maping have touched upon” the subject of of a County.” V “the just Quantity of every Man’s Ground, both Arable, Ley-ground and Meadow,” a record of and then prepared a field book to maintain the parcels. Cornwall, soil quality, and the landscape, in 1769, described published within resources available the natural the area. 39285-mqt_100-3 Sheet No. 108 Side B 06/19/2017 09:53:44 06/19/2017 B No. 108 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 109 Side A 06/19/2017 09:53:44 , 113 148 EWLY AS TO , N MERSON AND L HRIFT T 135 (1770). URISDICTION J Similarly, Wil- LDE AND O L 112 N 879 879 The guide would guide The 114 107 ETTING OUT OF For example, Cressey S often using agricultural 111 EASURING 115 M URISPRUDENCE OF (1607); A Instruction manuals for sur- the draining of lands through the draining of explains how slowly to drain a IVISION OR , in J 110 D The surveyor’s book would The surveyor’s rec- IALOGUE D 108 URVEYING OR S S ’ RT OF A ISCOVERIE FOR URVEYOR HE ) 6/12/17) 1:56 PM Mapping Territories ,S ,T note 103, at 132. ,AD ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW supra ORDEN OT OT The Compleat Surveyor , N N MERSON YMOCK O D E (D (1653) (located in the Collections of the Scottish National Library). (1653) (located in the Collections of the Scottish OHN J ADiscoverie for Division of Land, as to the Best or Setting out 109 DOCX at 75. EYBOURN . at 76. ILLIAM RESSEY L ORM Measurements reflected the realities of farming: “a day’s F INAL (1612). .Id. .Id. .Id. .Id. . See 116 -F , spends most how of its pages discussing and why fens and EST note 111, at 135. 115. Shaunnagh Dorsett, 114. For example, Emerson describes how a surveyor would determine whether to ad- 116. to edu- By the beginning of the eighteenth century, some surveyors endeavored 112. C 113. 4 107 108 109 110 111. W Early surveyors did not use specialized equipment,Early surveyors did not use specialized but instead Surveyors also acted muchSurveyors also acted as farm managers or advisors. Tracts B M K RALEY EVIVED C Y simply walked the landscape to create descriptive records. Rather, measurements were fluid and approximate, Dymock’s Dymock’s Form might be how land as be drained as well should marshes of England improved through the use of manures and fertilizers. veyors provided extensive advice on veyors provided and small-scaleconstruction of ditches canals. R supra Even as the surveying profession becameEven as the surveying profession more technical and special- century, surveyors continued to advise ized throughout the eighteenth landowners regarding the improvement of lands. 2017] Farms, or customary Tenements.”copyhold or 4F vise a landowner to consider building a canal for the purpose of draining land. E ord each of the rights, noting private rights to particular parcels as well to particular private rights of the rights, noting ord each as the manymight that the citizen rights to the common hold areas of the manor. units. THE (Shaun McVeigh ed., 2007). then proceed to explain the many to explain then proceed might that citizens types of rights lands. these particular have upon celebrating the role of the surveyor portray himrole of the surveyor portray celebrating the educating the as or farmer drained, can be planted, landowner about how grounds or improvedgreater profit over time. to liam Leybourn’s even whenbog, go upon it” by “your bog be so tender that you cannot to channel the water away. ditches locating the springs and creating 39285-mqt_100-3 Sheet No. 109 Side A 06/19/2017 09:53:44 06/19/2017 A No. 109 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 109 Side B 06/19/2017 09:53:44 M K 124 174 287 C Y UIDE G S ’ at 1–26. By the UMBERLAND XAMINED IN ITS C E Id. Thus, a parish Thus, URVEYOR S 121 note 111, at 1. [100:861 [100:861 OUNTY OF OUNG C OMMUNITY Y The surveyor would “measure C supra Id. , HE ,T by a process of perambulation,by a process Thus a total of 200 acres described in the Thus a total of 200 acres described in the ILLAGE Putting allocations onto paper onto paper allocations Putting V MERSON Id. 117 ISTORY OF THE AURENCE H L note 102. Notably, Wing no seems to assume s of the landscape’s uses. uses. s of the landscape’s To describe a particular plot, the sur- To describe a To construct boundaries between boundaries To construct par- NGLISH HE E 123 supra 118 , , T DWARD HE ING ) 6/12/17) 1:56 PM ,T the land to estimatethe land and to the acreage acquired For example, “[t]he manor [of the Parish of W MARQUETTE LAW REVIEW MARQUETTE at 175. ELETE note 117, at 174. 122 For smallermost plots of land, the refer- efficient D Id. UTCHINSON note 115, at 148. Indeed, surveyors were to some degree intention- note 115, at 148. Indeed, surveyors were note 115, at 141. OT OT 120 EEBOHM For the very largest parcels, the surveyor might For the very largest ref- H supra N S , See, e.g., O 119 supra supra (D ILLIAM DOCX . at 286–87. at 293. W AURENCE REDERIC INAL .Id. .Id. .Id. -F 120 121. 2 122 123 124. F 118. Dorsett, 119. L 117. Dorsett, Newlyacquired lands were laid out RALEY meantusing textual description or walkingsides of the writtencreate a description. ence was included a land use. one that specifically ally inaccurate in reflecting all of the features of a landscape: when surveyors set out to cre- ally inaccurate in reflecting all of the features acres. This a particular number of prescribed ate a new division of land, the grant generally the surveyor would stick to a “strict Proportion was presumed to refer to arable acres. Thus of Quantity” of arable acres. E that first, and subtract it from the Content of whole Close, and then lay the just Quantity of that first, and subtract it from the Content the remainder on that side that is free from it.” survey would include more than 200 acres when one included the non-arable portions of survey would include more than 200 acres “that which is useless.” (1716). Thus, “if there . . . be an unuseful Pond, Lake or Puddle, or if there be any Boggy or . be an unuseful Pond, Lake or Puddle, or if there be any Boggy . . (1716). Thus, “if there barren Ground, that must be cast out in the Division.” cate others about the geometry and mathematics that would provide more accurate meas- cate others about the geometry and mathematics urements of land. 880 or a morning’sjourney ploughing.” 4F might “common be bounded by the the north,” or “Alwardby on fields” on the west. erence prominent landmarks as creeks, ravines, bogs, ridges, such hills, and valleys. Aspatria] is of a square form,Aspatria] is of a bounded by Aspatria Common being on and by fields on the south, east sides, by Baggray the north and Aspatria Field on the west.” knowledge of mathematics whatsoever of his reader—beginning with the very basics of veyor would record the neighboring landscapes: “from such a place to starting-pointsuch a place, and so on till the was reached again.” (1794). addition, subtraction, multiplication, forth. fractions, decimals, and so had become more professionalized and more of a end of the eighteenth century, surveying mathematical process. Thus, by 1770, William was able to describe surveying as Emerson of any field, or parcel of land; which is content “measuring land,” or “the art of finding the E always expressed in acres and decimal parts.” cels, surveyors utilized landscape features, a process known landscape features, a process cels, surveyors utilized as butting and bounding. 39285-mqt_100-3 Sheet No. 109 Side B 06/19/2017 09:53:44 06/19/2017 B No. 109 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 110 Side A 06/19/2017 09:53:44 24 IELD F ISTORY PEN 131 O :AH APS M OMMON OR 125 C 881 881 Simmons v. Norton (1831) NGLISH ,E Such land uses divided Such land uses See also (1720) (illustrating English regions 128 AIN [ing] diverse little Trees in the [ing] diverse little J.P. K IBERNIA Guidebooks admonished survey- H YSTEMS AND TO THE individual plots still described land plots still described individual 127 S Even in 1831, Tindal found that “[i]t Even in 1831, Tindal found that OGER Surveyors labeled areas as meadows, Surveyors labeled 130 rests, hills, commons;rests, hills, smaller even scale 126 &R RIBAL T RITANNIA ET MITH B ) 6/12/17) 1:56 PM -S note 103, at 114. Altering the land use then could “introduce con- use then could the land Altering ELETE D AGNA 129 A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW ELANO 375 (4th ed. 1890). supra OT OT D M , ANORIAL AND N B. Boundary Enforcement with Waste Law O M (D DOCX EYBOURN USBANDRY . ATHERINE L H INAL .Id. .Id. . See generally -F 127 128. 4 129. Simmons v. Norton (1831) All ER (CPD) 345. 130. Simmons v. Norton (1831) All ER (CPD) 345. 131 126. C 125 Even once surveyors began producing pictorial descriptions of es- pictorial descriptions producing surveyors began Even once In a world without mathematical land uses efficiently es- surveys, Waste law of its three protected the evidence of title through one M K RALEY ELATIONS TO THE YSTEM OF C Y commonland. or planted pasture, ors to illustrate their woodsors to illustrate by “draw most material“shadow” to show “mountain[s] to use places,” and and uneven Grounds with Hills and Valleys.” (1999). is the daily practice of this court to amendis the daily practice of this court fines and recoveries, on ac- count of the misdescription of the quality of the land; and the ground for making amendments such is that these documents are preserved and handed down, the title to, and identifying the lands, as certifying by reference to the purposes to which applied.” they have been R S 2017] di- largest only the provided in England counties of early surveys The land uses: moors,visions of fo maps town of showed areas that as fen, woods,uses such meers, and mown grounds. 4F 131 Eng. Rep. 247 (CPD). tates, drawingthey continued to note rivers and fields and houses, in drawings,land uses on the or by a series of symbols either by text set guidebooks. out in surveyors’ siderable difficulty in the title.” by depicting common land uses). 1. Waste, Boundaries & Land Use tablished boundaries. As “[i]n grants, Chief Justice Tindal explained, description of meadow,land frequently passes by the specific pasture, arable, or the like.” properties in both writtenproperties in both until surveyors moved and visual depictions toward modern, geometrical depictions. 39285-mqt_100-3 Sheet No. 110 Side A 06/19/2017 09:53:44 06/19/2017 A No. 110 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 110 Side B 06/19/2017 09:53:44 M K 258 In C Y note 141 supra AUNDERS S EPORTS OF THE The third The third R 132 HE AUNDERS , the defendant DMUND E IR 373 (1875). S Lord Coke explained Lord Coke explained [100:861 [100:861 Alterations to a build- 135 e identity of the premis-e identity of the ings was the to “change 140 Cole v. Forth Cole v. EARNED Id. L likely a part of the evidence of likely a part of the OST URISPRUDENCE J M note 42, at 1130. QUITY E supra 258 (Edward Vaughan Williams ed., 6th ed. 1846)). , EPORTS OF THE For example, in ) 6/12/17) 1:56 PM R § 53 (8th ed. 1822); Simmons v. Norton (1831) All ER 343 § 53 (8th ed. 1822); Simmons v. Norton If the tenant made he could such a change, AUNDERS § 53b. REATISE ON 138 S MARQUETTE LAW REVIEW MARQUETTE HE 133 ELETE D ,AT note 23, at 300. OT OT note 20, at 130. ITTLETON N DMUND ITTLETON L While the court found that the property rent increased O supra E L , ILLARD (D supra IR 139 , explains using this example: “Ploughing old meadow land and converting explains using this example: “Ploughing S W DOCX OONE . 136 (quoted in 2 T OKE ON OKE ON EWES OHN INAL In other words, to change the build .Id. . Liability Waste for Ameliorative In a time prior to formalized mathematical surveys and deed EARNED Simmons -F L 137 134 139. Cole v. Forth (1672) 86 Eng. Rep. 759; 1 Mod. 94 (cited in 2 T 133. C 136. C 140 132. B 1 141. Young in 2 S v. Spencer (1829) 109 Eng. Rep. 405 (KB), quoted 137 138. J 134. Young Eng. Rep. 405 (KB) 408. v. Spencer (1829) 109 135. B Following courts the rule strictly, material forbade alterations of RALEY OST identity of the estate.” registries, “w[aste] was a matter of great importance,” precisely due to land fromits ability to protect title.” “injury to buildings, because those buildings werebuildings, because title. “pulled down a brew-house and built a number of small tenements in lieu thereof.” 139, at 259 (finding that the opening of a new door to a building might or might not be 139, at 259 (finding that the opening of a new door to a building might or might the waste, and that it was a question for the jury to decide as to whether the change impact M 882 wasteTraditionally, prongs. traditional “a di- by (1) be proven could minishing burdens increasing of the estate,” (2) “an value of the of the or (3) “an impairingupon it,” of title.” of the evidence 4F it to arable is waste; it alters the evidence of the title.” it to arable is waste; it alters the evidence (CPD). “if the land be described as arable in the deeds and on view as arable in the deeds and “if the land be described the land is somefound to be pasture, to prove the special evidence is necessary identity.” function of wastefunction was land use chang- to address specifically designed “the evi- a land use changes changing Lord Coke explained, es. As dence of the estate.” “caus[e] a difficulty in afterwards“caus[e] a difficulty th proving es.” by eighty pounds per year, the Court by eighty pounds per year, the of King’s Bench determinedthat it was “waste notwithstanding the improvement, because of the nature wasof the thing and of the evidence altered.” ing that did not change its function or overall size and location mighting that did not change its function or might not be waste; it was a question for the jury as to whether or evidencenot such a change “affected the title.” of the plaintiff’s (Edward Vaughan Williams ed., 6th ed. 1846) 259). 39285-mqt_100-3 Sheet No. 110 Side B 06/19/2017 09:53:44 06/19/2017 B No. 110 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 111 Side A 06/19/2017 09:53:44 143 Because Because 335 (1801). 150 33 (John Merrifield 883 883 ASSACHUSETTS § 53a–b (8th ed. 1822). Addi- e inside of a building to of a building to e inside M note 20, at 98–102; for the tradi- 147 ONVEYANCING C supra , ITTLETON ITLES IN L T EWES 148 AND damaged of others to dis- the ability e because “the consequent alteration “the consequent e because L scape change was “compatible with RINCIPLES OF OKE ON ,P Thus, courts would restrain tenants from courts would Thus, 146 ISTORY OF ATKINS note 2, § 381. H ) 6/12/17) 1:56 PM W HE note 23, at 22–33; B supra ELETE , ,T D note 34, at 67. note 34, at 67. A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT supra HARLES note 20, at 11–13, 167. URTS , This included changes to th changes This included N C O supra supra , , 142 (D OOL ULLIVAN See supra &W S , RUISE RUISE DOCX For the samewaste reason, “[t]he conversion occurred with Cutting down timber evidence of the es- could change the . INOR EWES AMES A committed defendant waste whenplowed he land that up 144 149 INAL 145 -F 142. M 150. Maleverer 79, 80 (holding that removing timber v. Spinke (1537) 73 Eng. Rep. 143. B 144. J 149. For of English law on waste nineteenth century discussions of the complexities 147. Cole (1626) 21 Eng. Rep. 493 v. Peyson (1637) 21 Eng. Rep. 106; Atkins v. Temple 146. Gunning v. Gunning (1678) 89 Eng. Rep. 759 (KB). 145. C 1 148. C 1 It did not matter if the land Cutting down offended two trees potentially of the three waste Because economic value was issue and maintenance not the of M K RALEY C Y of one species of land into another, as the changing of meadow land into another, as the changing of one species of into ar- able.” tional common law rules on timber, see C good husbandry,” only that it had good husbandry,” down of the estate. Therefore “cutting cern the boundaries hedges, fences, or as the monumentswhich serve as of boundaries, is Waste.” tate, by making by tate, de- what was labeled “wood” or “forest” on a land scription or map into either meadow or arable land. prongs. on ed., 8th ed. 1833) (finding that the definition of timber varied across England, depending local custom). evidence of title). of the owner of the inheritance from ploughing (“A tenant will be restrained at the instance up ancient pasture; such ploughing is as much waste as the ploughing of meadow.”). 2017] however,general, construction or the building of a to the size changes be wast would building of a new premises of the in the description might impair of the the evidence owner’s title.” 4F trees are timber. trees are timber. had been used as pasture. had been used as tionally, not all trees count as timber. The “custom of particular places” determines which boundary lines through preservation of distinct land uses wasboundary lines through preservation para- mount, injunctions rather than damage awards were the remedy for these types of waste actions. In response to suits, the courts would “award restrain waste by ploughing, burning, a perpetual injunction to breaking, or sowing of down land.” ploughing either meadowploughing either pasture ground. or and timber, see Y the degree that they mightthe degree longer no with align description. a title 39285-mqt_100-3 Sheet No. 111 Side A 06/19/2017 09:53:44 06/19/2017 A No. 111 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 111 Side B 06/19/2017 09:53:44 M K C Y note 20, supra , speaks direct- EWES 154 B See [100:861 [100:861 This general statement was ). 156 at cutting timberat cutting of- potentially AW L This is particularly clear in light of This is particularly e boundary-maintenance function of tting trees generally constituted wastetting trees generally ROPERTY P On where hand, in a country the other 151 note 2, § 383. ) 6/12/17) 1:56 PM 152 MARQUETTE LAW REVIEW MARQUETTE supra TUDIES IN ELETE , note 20, at 9 (discussing the “merciless” application of the rule, S note 138, at 373. D note 23, at 301. To explain centuries of such rulings by courts oth- To explain centuries of such rulings OT OT URTS supra N 155 supra , O supra , , ODERN (D &W EWES DOCX OONE B Simmons v. Norton (1831) All ER 343 (CPD) 344 (explaining that “ploughing Simmons v. Norton (1831) All ER 343 (CPD) 344 (explaining that “ploughing . ILLARD INOR The Anti-Wilderness Bias in the Common Law & Modern Law American Property INAL .See .See Penalizing the ploughing of ancient meadows, Penalizing the which an action -F 155 151. W 153. Lord in multiple contexts. Coke wrote upon this subject 156. M 152. B 1 154 153 Some confusingly speak of a change in the “course of hus- cases The strictness of wasteThe strictness of law demonstrates the importance of the Additionally, recognizing th Additionally, RALEY meadow land and converting it into arable is prima facie waste” and “it alters the evidence meadow land and converting it into arable is prima facie waste” and “it alters the of title”). would arable state, convert the land into the preferred erwise quite interested in a natural concept of fairness or justice, one must focus on the damage that may the title and have been done to even a financially positive change to boundaries of a property through the landscape. 2. Maintenance The Boundary Function and the Good Husbandry Standard bandry” being forbidden by waste law. boundary-maintenance function. the common law’s normalprefer arable land to all oth- tendency to ers. damages evidence of title). 884 boundary-maintenance was primary the also worked the rule purpose, in reverse—despite of timber, the scarcity it wasalso waste to change land into wood.”“arable 4F at 30–31 (quoting and discussing Lord Coke and others on the common law preference for at 30–31 (quoting and discussing Lord Coke the common law preference for arable lands, see arable lands). For a further discussion of Jill Fraley, (forthcoming in M ly to the vital importance mecha- of the land use as a boundary-setting nism. waste law explains certain results, such as treble damages when the reversioner profited from the property change, that otherwise seem patently unfair. timber was down scarce, cutting the value of could also reduce trees Given significantly. the property th of waste,fended both prongs cu under the common law. including treble damages, in cases of ameliorative waste). 39285-mqt_100-3 Sheet No. 111 Side B 06/19/2017 09:53:44 06/19/2017 B No. 111 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 112 Side A 06/19/2017 09:53:44 and 163 As a re- a As 164 885 885 Changing the course Changing violate the good hus- violate the good alleged waste, in part, 157 160 158 that might there in be planted hniques were afoul likely to run to the agricultural custom of the traditionally imposeda good hus- it destroys the principles of vegeta- Relying on this commonly Relying on this accept- for violating the covenant of good for violating the covenant of good 159 Others woad cases agreed, finding that Tresham v. Lamb 161 It was what been publicly done “ha[s] ) 6/12/17) 1:56 PM 167 ELETE D note 21, at 257. A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT note 20, at 38. note 20, at 38. N O supra Section III.B. , (D supra supra , , 165 DOCX . EDMAN EWES EWES Some crops were, simply put, “pernicious crops,” This wasnot a matter for witness testimony as to their person- INAL .Id. .Id. . See supra 162 -F 166 165. Powis v. Dorall (1610) 8 Bacon 419. 166. Tucker v. Linger (1882) 21 Ch D 18 at 24 (Eng.). 167 160. 123 Eng. Rep. 806, 806. (1610) 161 162. Powis v. Dorall (1610) 8 Bacon 419. 163. B 164. R 157 158. While the court imposed the good husbandry requirement, it was possible for the 159. B Changing the course of husbandry could Changing the course Additionally, some tec agricultural M K RALEY C Y waste law prohibited sowing the land with such plant. any al beliefs on the best husbandry, but rather a sense of community but al beliefs on the best husbandry, knowledge. common tion.” was “of so poisonous a quality that bandry requirement of husband- prevented changes to the course that ry that affected value burdens. or increased of husbandry could also impair could also of husbandry the of the estate or the value either The commonburdens upon it. law ed principle, the plaintiff in ed principle, the 2017] more of a product as First, waste. of prongs the separate one of than wecourse of husbandry—if in the discussed, changes have already use—woulda change in land to the level of they rose be prohibited be- title. evidence of land use provided cause the 4F bandry standard in a variety of ways.bandry standard First, farmers understood some plants to be incompatible with others the future. For example, after being planted in woad, land would“not years after.” carry corn for seven area. of the good husbandry rule. English courts evaluated changes in the of the good husbandry rule. English in course of husbandry by inquiring through the tenant sowing woad. As one judge explained, woad was explained, As one judge sowing woad. through the tenant “offensive and infectious.” sult, the court would require “an express power in his lease”; other- the tenant would be liable wise, Tuckerparties to “contract themselves out of it.” v. Linger (1882) 21 Ch D 18 at 24 (Eng.). husbandry. 39285-mqt_100-3 Sheet No. 112 Side A 06/19/2017 09:53:44 06/19/2017 A No. 112 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 112 Side B 06/19/2017 09:53:44 M K C Y but the but the Across 170 169 [100:861 [100:861 question was whether such for changing land use would When the reversioner present- 173 174 land use descriptions (but rather land use descriptions soil, climate, situation.” and Such a standard, the a standard, Such “mustjudges agreed, note 2, § 383. note 2, § 383. 168 ) 6/12/17) 1:56 PM In some parcels served multiple instances pur- MARQUETTE LAW REVIEW MARQUETTE supra supra ELETE , , Fermier v. Maund 524 (finding that an- (1637) 21 Eng. Rep. 524, 171 D OT OT entity of the estate.” URTS URTS N O But see (D &W &W DOCX Tresham v. Lamb (1610) 123 Eng. Rep. 806 (finding that, in one parcel at issue, Tresham v. Lamb (1610) 123 Eng. Rep. 806 . INOR INOR INAL .See .Id. .Id. Normally, the strict rule would a finding of waste dictate when -F 172 173. When land use descriptions typically determined boundaries, the courts did not 174. M 172 168 169. Legh 791. v. Hewitt (1803) 102 Eng. Rep. 789, 170 171. M The boundary-function also explains whyThe boundary-function some English cases, in- In such cases, the strict per se rule RALEY cient pasture should not be plowed even though it “may have been formerly plowed,” and cient pasture should not be plowed even pasture” to refuse plowing). apparently relying on the designation of “ancient a change in use impaired evidence of the bounda- need extensive evidence to conclude that the ries. Thus, Chief Justice Tindal could write, “All the authorities agree in establishing . . . position, that ploughing meadow land and converting it into arable is prima facie waste. of [A]nd one of the reasons given that such an act is waste, is because it alters the evidence could say title.” Simmons v. Norton (1831) All ER 343 (CPD) 344. For this reason, the court waste.” that “the ploughing up [of] ancient meadow is, upon the face of it, irreparable (1796) 145 Eng. Rep. 1027. Johnson v. Goldswaine and Others the land had been pasture, but also “had been mowed and used for meadow for diverse the land had been pasture, but also “had respect to that parcel when the tenant sowed years,” and therefore finding no waste with and ploughed it). ed no such evidence, the only remaininged no such evidence, the only land use changes offended good husbandry or reduced the value of land use changes offended good the tenant changed uses. However,the tenant changed when the land use had already the evidence of the es- the tenant taking possession, changed prior to not given through tate was either through adjoining roads, streams, title was etc.), or such evidence of already impaired by longstanding changes in use. Thus, the change in use was not chargeable to the tenant as waste. poses over the years, often alternating, as betweenposes over the years, pasture and mead- ow. general concept of good husbandry wouldconcept of good general for the the foundation lay modern rule. value-focused 3. Land Uses Shifting & Boundary Maintenance The Function cluding some not find waste of the oldest, do was even though there a change in land use. 886 the district.” throughout 4F not dictate a finding of waste; the rule only prevented changes that “touch[ed] the id the country, there was no “uniform there the country, course of husbandry,” vary exceedingly according to according vary exceedingly 39285-mqt_100-3 Sheet No. 112 Side B 06/19/2017 09:53:44 06/19/2017 B No. 112 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 113 Side A 06/19/2017 09:53:44 179 Notably, 181 , explained the , explained 887 887 note 11. 108–13 (J.D. Rogers & J.M. QUITY , supra E But the additional function of But the additional Merrill with, a default rule, always sus- a default rule, with, ODERN Simmons v. Norton v. Simmons Both Purdy and Merrill engaged Yet, this is not accurate. The Yet, this is not accurate. The M created a waivable default rule. 178 180 unction. Maintaining boundaries effec- Courts reasoned that, “[t]he Clause of Courts reasoned that, “[t]he Clause ASES IN to be regarded as sharply dichotomousto be regarded , never was extended to allow the very See generally C 182 ) 6/12/17) 1:56 PM EADING ELETE ,L note 138, at 381. This clause did not fully protect a tenant from note 138, at 381. This clause did not fully D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT note 62, at 48. note 62, at 48. RETT N supra B O , As Justice Tindal’s comments boundary- suggest, the (D supra supra , , 177 Justice Tindal cited the fact that such changes could “al- changes could that such fact Tindal cited the Justice DOCX 175 . HOMAS at 345. ILLARD 176 URDY URDY T INAL .Id. .Id. .Id. see -F 181 182. 2 Eq. Ca. ABR. 757. (1667) 180. P 175 176. Simmons All ER (CPD) 344–45. v. Norton (1831) 177 178. W 179. P Chief writing Justice Tindal, in In general, a deed or grant of an estate may prevent a tenant from M K RALEY C Y boundary-making function of the old rule was not waivable, by a even impeachmentspecific provision that prevented for waste. liability for waste, because courts still often interfered on equity grounds to prevent waste. interfered on equity grounds to prevent waste. liability for waste, because courts still often the For a discussion of the reasons why courts would act in equity to prevent waste despite clause, tively also directly implicatestively also directly value. waste, what I am calling the boundary-maintenance function, directed Only recogniz- to preventing changes to boundaries. itself specifically function of wasteing this distinct law maintaining in boundaries ex- cases. plains this line of maintenance function is not from the value-maintenance f convergence of the twoconvergence problems against changing create a rule to land use. Purdy described the rule as “to begin begin Purdy described the rule as “to 4. 4. Waiver & Forbidding The Boundary Function being held liable for waste by inserting a clause granting the land “without impeachment of waste.” ceptible to contractual revision.” 2017] the estate. 4F without Impeachment of Waste English courts would not allow waiver to excuse changes of land use of land to excuse changes waiver allow not courts would English that implicated boundaries. waste law as though it uniformly ter[] the evidence of title,” but also that ploughing a meadow that but also evidence of title,” ter[] the would “a series of years, of the estate because in such cases change the value perhaps ages, mustelapse, before it can state be restored to its original and value.” Dixon eds., 3d ed. 1896). 39285-mqt_100-3 Sheet No. 113 Side A 06/19/2017 09:53:44 06/19/2017 A No. 113 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 113 Side B 06/19/2017 09:53:44 M K C Y [100:861 [100:861 involved an injunction involved an injunction , the court described the , the court described Atkins o parties to a suit. Indeed, someo parties to a suit. 186 plowing Meadow up ancient and For example, For “a of converting the besides the reversioner—potentially besides the reversioner—potentially 183 If the commonwealth could be preju- Atkins v. Temple v. Atkins 188 ons, it was through the destruction of the In ) 6/12/17) 1:56 PM 185 MARQUETTE LAW REVIEW MARQUETTE Particularly given the brevity of the older Eng- Particularly given note 20, at 30–31 (discussing Lord Coke’s explanations of the ELETE D 187 184 OT OT supra N , O (D EWES DOCX B . INAL .Id. .Id. .See .Id. -F 185. Atkins v. Temple (1625) 21 Eng. Rep. 493. 186 187 188 183 184.Bishop of London v. Findlay v. Smith, 20 Va. 134, 152 (1818) (“In the case of the Finally, making waste non-waivable when it cameto the boundary By using a non-waivableBy using waste rule, common law could pro- courts RALEY interest of the neighbor in maintaining boundaries. function mirrors the strict holdings in cases of ameliorative waste, question of waste the actions of the not just the question of whether as whether to the reversioner, but also tenant were prejudicial they were Commonwealth.”prejudicial “to the lish cases, one might consider whether court meant the that the preju- dice to the commonwealth was some economic that or other burden plowing these lands would cause. Such an alternative explanation, however, fit given the strong preference in the common does not law for arable over pasture-land. cases introduce wordingcases introduce the stake of the state in that suggests directly waste cases—a move that would be logical given the boundary- maintenance function. tect more the tw than the interests of pasture field into a pit or pond” was restrained by English courts, even by English courts, restrained pond” was field into a pit or pasture wasif the tenant be held “without to impeachment of waste” accord- contract. ing to the diced by the tenant’s acti proper evidence of boundaries. The fact that the strict rule wasproper evidence of boundaries. non- waivable in the instance of injury to the evidence of title suggests that the rule was someone protecting either the interest of the state in preventing property disputes or the either the interest of the state in lasting injury to the inheritance; and this, notwithstanding the clause of impeachment of lasting injury to the inheritance; and this, waste.”). Webb, 1 P. Wms. years, and that too without impeachment of waste, 527, where a tenant for work up the soil, thereby converting the pasture contracted with brick makers to dig and by the Chancellor fromfield into a pit or pond, he was [e]njoined so doing, because it did a 888 DestructionEstate itself.” of the 4F Pasture Grounds.” request to restrain the tenant “fromrequest to restrain common law preference for arable land over all other types); Tyrringham’s Case (1584) 76 common law preference for arable land over all other types); Tyrringham’s Case for arable Eng. Rep. 973 (including Lord Coke’s footnotes about the common law preference land). 39285-mqt_100-3 Sheet No. 113 Side B 06/19/2017 09:53:44 06/19/2017 B No. 113 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 114 Side A 06/19/2017 09:53:44 ODERN A 1640 M 192 258 (W. Keith 190 ISTORY H OURTS 889 889 C VOLUTION TO THE VOLUTION TO THE OCUMENTARY E MERICAN MERICAN A HE :AD d been initially used in England: d been initially used in England: :T AW MERICA L A note 126, at 117. Bradford’s land extended “from the Such strict applications of the common applications Such strict RITISH AND 193 189 B supra ASTE , W ) 6/12/17) 1:56 PM OLONIAL AIN C ELETE note 20, at 9 (discussing treble damages in cases of ameliorative note 20, at 9 (discussing treble damages &K D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT supra N MITH , O ISTORY OF -S ULE IN BOTH (D R H EWES DOCX B OUNDATIONS OF . ELANO EW bounded easterly by a great creek that runs frombounded easterly by a great creek Hack- ingsack Bay through the salt meadow called by the In- dians Wequahick and now knownthe name by of and continuing fromBound Creek, the head of the said a markedcreek to the head of a cove to tree, from INAL .Id. .Id. .Id. .See Similarly, a purchase of Newark in 1667 from native tribes was -F However, given that the land was not inscribed with land uses in 194 190. D 192 193 194 189 191. F 1 Delineating land us- through textual descriptions and boundaries Throughout the seventeenth century, colonists employed seventeenth century, colonists Throughout the the same M K 191 RALEY IV. A N C Y age was, and one that would of course, a risky business, be inevitably replaced by more efficient technologies. An accurate map meant that it was not to worry possible about what would later be jokingly called replacement“the scandalous of arable [land] by pasture.” methods of marking boundaries as ha by referencing natural landmarksland us- or landscape features and es. the same way that parcels were colonists relied much in England, more uses. heavily on landscape features as opposed to land survey of Massachusetts land for William Bradford demonstrates the use of landscape features. described as 2017] which more in discussed are below. detail ameliorative of In cases waste, where changes impaired the property evidence, boundary damages, treble courts dispensed even while profited the reversioner from property change. the 4F waste). Kavenagh ed., 1983). law as a state interest were protecting suggest that courts rule again well as the reversioner’s interest. bounds of Yarmouth three miles eastward to the of Naemskeckett, and and two miles to the . . . from of land sea to sea, cross the said neck western river to another place called Acqussent side of the said Riv- er.” 39285-mqt_100-3 Sheet No. 114 Side A 06/19/2017 09:53:44 06/19/2017 A No. 114 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 114 Side B 06/19/2017 09:53:44 M K EAL 711, C Y R MERICAN A ENANT AW OF RINCIPLES OF T Changes Changes L ,P 197 Rather than 198 ILLIAMS W ANDLORD AND [100:861 [100:861 OMMENTARIES ON L REATISE ON THE 195 ,C YPRIAN C ,AT ENT note 191, at 1494. AW OF the same social function of , the case that Merrill believes is the K L the cases themselves to point to supra RMOUR HOMAS which permitted down tearing , increasingly moved toward the A e story of the shift in English and e story of the shift AMES 199 &T 3 J . 95–96 (1895–96). MERICA See A OUGLAS URIS J D ILLIAMS REATISE ON THE between parcels. neighboring T W ) 6/12/17) 1:56 PM OLONIAL , 21 Q.J. DWARD C E MARQUETTE LAW REVIEW MARQUETTE OSHUA 115, 497 (20th ed. 1906). Notably, even modern American cases Whether the land was description of the verbal Melms v. Pabst Brewing Co. ELETE D 196 , decided in 1849, note 20, at 130. Bewes and his treatise summaries of English law note 20, at 130. Bewes and his treatise OT OT A. Transforming Waste Law in England N See also O ROPERTY Section III.A. Section III.A. Section III.A. P supra (D , EAL DOCX OUNDATIONS OF . R EWES Dodds v. Sixteenth Section Dev. Corp., 99 So. 2d 897 (Miss. 1958); Vollertsen v. 93 (2d ed. 1916); J thence it extended westerly it extended thence line, by straight upon a computation miles seven to the same moreless, to or mountainor foot of the great the end the ridge and to Wacchung. by the Indians thereof called INAL . See supra . See supra . See supra See -F Review: The Law of Waste AW OF 18 (2d ed. 1832) (listing Bewes among the most distinguished of English treatise writ- 18 (2d ed. 1832) (listing Bewes among the 196 197 198 199. B 195. F 2 Landscape features replaced land uses as the basis for written as the basis land uses features replaced Landscape Wyndham Bewesturning point in English waste places the law at L RALEY AW ROPERTY or visual, land uses no longer provided or visual, land maintaining lines boundary still rely on Bewes when seeking an authoritative position on the traditional English rules of still rely on Bewes when seeking an authoritative position on the traditional waste. may be Lamb, 732 P.2d 486, 494 (Or. 1987) (relying on Bewes to determine which parties No. M2004-00951-COA-R3-CV, 2006 Tenn. liable for waste); State v. Delinquent Taxpayers, quintessential American for the authoritative case, rely on Bewes interpretation of English American cases, including waste law. Melms v. Pabst Brewing Co., 104 Wis. 7, 10, 79 N.W. (1899). 738, 739 work when treatise writers relied on Bewes’ In the early twentieth century, the other major Bewes Thondike Tiffany repeatedly cites Herbert discussing the law of waste. For example, in his discussion of waste law. 1 A P L 890 4F were well regarded by contemporaries. visual representation of land and mathematicalvisual representation measurements, meant that waste law needed to protect boundaries. no longer in the scale of grants, the types of landscapes being conveyed, and the the types of landscapes being in the scale of grants, itself, whichtechnology of surveying 713, 730, 737 (1912). engaging in more of the modernization detail the story of surveying methods, this Article now turns to th American waste law, which will allow the transformations in technology. THE metes and bounds. ers). A contemporaneous review found that Bewes’ book “[could not] fail to be of service to book “[could not] ers). A contemporaneous review found that Bewes’ with a topic that is both “complex and diffi- the profession,” having “dealt exhaustively” cult.” Huntley v. Russell 39285-mqt_100-3 Sheet No. 114 Side B 06/19/2017 09:53:44 06/19/2017 B No. 114 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 115 Side A 06/19/2017 09:53:44 201 205 , Lord 208 , “the identity of , “the identity Greene v. Cole (1669) see 891 891 Cole Title, the court con- Title, the court , which had held that which had , 203 Doherty v. Allman 204 , treatise writers found that it tle of this kind is not at all of the tle of this kind is not at all of the a new was building per se not Jones ts had adopted the new rule. Cole v. Greene withto the three prongs of respect Lord O’Hagan found that “owing to Greene 85 Eng. Rep. 1037. Greene 85 Eng. Rep. 1037. 209 , an English court reasoned, “[y]ou may, an English court of destroying identity, by whatof destroying identity, is called see Citing Citing 207 ) 6/12/17) 1:56 PM note 25, at 68. ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW note 20, at 131–32. OT OT note 20, at 130 (quoting Huntley v. Russell (1849) 116 Eng. Rep. 1381 note 20, at 130 (quoting Huntley v. Russell note 20, at 131. supra N , O Jones v. Chappell The parties argued The parties (D supra , 116 Eng. Rep. 1387; , 116 Eng. Rep. 1388. supra supra, , , , 200 Delivering Patteson ex- the opinion of the court, Justice Instead, the court held that the question is whether Instead, the court held that the the new DOCX DWARDS . 202 E EWES EWES EWES 206 INAL . Huntley . Huntley .Id. .Id. -F concluded that the building of concluded that 202 203 204 205. B 209. B 200. B 206 207. v. Chappell [1875] 20 LR Eq. 539 (Eng.) 541-42. Jones 208. 3 201. Huntley 1381 (KB) 1387; v. Russell (1849) 116 Eng. Rep. Writing in 1878 for the Court of Appeal, in By 1875, in M K RALEY C Y the property wasthe property landlord’s of the lost, and the evidence right de- stroyed.” O’Hagan explained the change. 85 Eng. Rep. 1037 (KB) 1047. was “nowcour settled” that English building offends either of the two remaining prongs of the waste test; the plaintiff must prove an injury through either a destruction of value or an increase in burdens. waste, because the old per se rule regarding evidence of title no longer applied. App. LEXIS 716, *22 n.11 (Tenn. Ct. App. Nov. 2, 2006) (relying on Bewes to determine what App. LEXIS 716, *22 n.11 (Tenn. Ct. App. conduct constitutes waste). Jones 2017] in no way could of title evidence “[t]he because a barn rebuilding and be affected.” Distinguishing notes that in case, Justice Erle that 4F prove an injury in the sense prove an injury destroying evidence of the owner’sdestroying evidence peculiar title, and that is a very in modern which has not been extended head of the law, times.” “substituting new“substituting is waste.” for old ones different buildings and (KB) 1387). cluded, “could in no way “could in cluded, be affected” by removing to a an addition house, with standing.” “that house being still the circumstances in which property is now in situated in this country, of ti Scotland, and in Ireland, evidence same importance as it was in other times and other circumstances. same importance as it was in other times other circumstances. and When Survey, when you have an Ordnance of you have a Registry plained the ruling by saying that plained the ruling waste law, of these three requisites exists.” “one 39285-mqt_100-3 Sheet No. 115 Side A 06/19/2017 09:53:44 06/19/2017 A No. 115 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 115 Side B 06/19/2017 09:53:44 M K 212 C Y inter- Bewes 216 Meux, and conclud- , Bewes looked 215 Meux [100:861 [100:861 mmon law rule, if in a rounda- property, demised by words de- can be identified withcan be identified the , a case from 1892, to suggest that Lord Blackburn concurred, reasoning reasoning Blackburn concurred, Lord Bewes would have disagreed. Rather have disagreed. Bewes would 210 Whileconcluded that the English Purdy 214 with ulterior motives in 213 ) 6/12/17) 1:56 PM MARQUETTE LAW REVIEW MARQUETTE ELETE Meux v. Cobley v. Meux D OT OT note 20, at 13. note 20, at 130. note 9, at 664 n.66. note 9, at 664 n.66. N 211 O (D supra supra supra supra , , DOCX at 133 (quoting Doherty v. Allman [1878] 3 App. Cas. 709 (HL) 735 (Eng.) (ap- at 133 (quoting Doherty v. Allman [1878] . EWES EWES It seems fair nowadays, as a matter of arrangement, to treat w[aste] founded on injury to title as a possible va- riety of trivial w[aste]. Not that there may not be, even end of the term—any damage in regard to evidence of of evidence to regard in Ordnance map—and these mapsmay it well be sup- damage posed will to exist and may continue to the be referred term—any the of end title is quite wild and chimerical,merely or is at least nominal. when there are Ordnance Surveys, and where, as in Ire- is a Court especiallyland, there with dealing titles to the and whereestates, giving titles, is marked the property out on a map, which map INAL .Id. .Id. .Id. .Id. -F 212. Purdy, 213. B 215. B 214. Purdy, 216 210 211 Purdy has cited Purdy has cited RALEY peal taken from N. Ir.). ed that English courts had already adopted the newed that English courts had already rule. courts “continued . . . to treat changes in the course of husbandry as in- to treat changes in the course of husbandry . . . courts “continued juries to the inheritance,” preted the case as an outlier in English jurisprudence, a special case of preted the case as an outlier in English “contract by which the tenant of a scribing its character, is taken to have impliedlyscribing its character, is taken to contracted to preserve its nature, as demised.” Others have been less pessimistic about the court’s motivations. Others have been less pessimisticcourt’s motivations. about the Bewes, writing only a few years after the court decided 892 Deeds,when a system have you of evi- the value conveyancing, of position, is its particular of this sort retaining title, of a place dence of diminished.”very sensibly 4F England still enforced the traditional co England still enforced bout way,covenant within by utilizing a “to avoid finding a lease waste in cases of industrial development or improving buildings.” summarizes, to the longer line of English cases, dating back to 1849, to the longer line of English cases, than crediting the court that 39285-mqt_100-3 Sheet No. 115 Side B 06/19/2017 09:53:44 06/19/2017 B No. 115 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 116 Side A 06/19/2017 09:53:44 224 Harrow Doherty v. but also by a 223 and 221 He described the He described including that had always ex- that had always 893 893 218 219 rted not only by Bewes’rted not only by (1875), note 20, at 130. decision, agreed with decision, Bewes, is country, they brought with supra , the waste rule signaled the shift of waste law in , the court said that “if the jury gave only one , the court said that “if the jury gave only Meux note 42, at 1131. 217 EWES supra Harrow , involved the tenant “converting three closes of mead- involved the tenant “converting three closes Jones v. Chappell 220 ) 6/12/17) 1:56 PM be useful (the value portion of the rule), whilebe useful (the value Harrow at 1170. In ELETE Id. article from 1930, which the shift in law describes D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW (1800), Pynchon v. Stearns OT OT note 20, at 13. It appears the jury entered nominal damages. Nominal damages are It appears the jury entered nominal damages. This interpretation is suppo This interpretation N O Id. 222 (D supra B. The Transformation of Waste Law in America , In 1846, the Massachusetts Supreme Court explained, DOCX at 129–30. Within America “it has been the constant usage of our . 225 EWES 226 now, cases in which injunction may injunction which cases in now, dam- or be granted ages awarded in by far the ground; but that, on this numberlargest is so of title instances, confusion of to be disregarded. slight as (1878). INAL . Liability for Ameliorative Waste .Id. .Id. .Id. .Id. -F 224 221. 20 LR Eq. 539 (Eng.). (1875) 222. (appeal taken from N. Ir.). 3 App. Cas. 709 (H.L.) (1878) 223. B 225. Pynchon 52 Mass. v. Stearns, 304, 311 (1846). 226 217 218. Meux 263. v. Cobley [1892] 2 Ch 253 (Eng.) 219 220. 126 Eng. Rep. 1170. A case called Judge Kekewich, writing in the M K RALEY C Y America. ow into garden ground.” ow into garden ground.” not ordinarily available in waste actions. B farthing damages for each close, the [c]ourt would give [d]efendant leave to enter up judg- farthing damages for each close, the [c]ourt ment for himself.” School v. Alderton “[w]hen our ancestors emigrated to th them, and were afterwards governed by, the commonlaw of England; excepting, however, such parts as were to their new inapplicable con- dition.” farmers to break up their grass lands for the purpose of raising crops distinguished treatise on The Lawdistinguished treatise of Waste in England, Harvard Law Review in England, and later, slowlyas occurring first in the United States. it doesn’t perhaps even makeTo a certain degree, describe the sense to as a transformation—theEnglish changes English rule more properly simply on the part of doubled down to isted and continued of the rule (the boundary portion), setting aside the other portion which was made obsolete by surveying technology. 2017] Allman 4F transformation out by many as “borne cases,” finding that the English lawthat the English finding changed. had already 39285-mqt_100-3 Sheet No. 116 Side A 06/19/2017 09:53:44 06/19/2017 A No. 116 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 116 Side B 06/19/2017 09:53:44 M K 231 EW In In C Y 232 AWS OF L ,AN The rule, rule, The 234 WILLIM . G IGEST OF THE ENRY Waste pre- actions, ,AD [100:861 [100:861 228 , the Massachusetts Su- &H , along with Matthew Ba- Such a rule was “unsuit- Such a rule was OMYNS 229 C ACON B Pynchon without of the any designation is line of cases, a line that had is line of cases, a line that had OHN s that “if a meadow be sometimes that had been previously changed: that had been previously changed: upon a long-standing line of English upon a long-standing ATTHEW nal English treatises that detailed the nal English treatises that detailed not because industry required the cut- not because industry ilderness conditions land uses could not ilderness conditions 230 A New Abridgement of the Law of A New Abridgement note 2, § 383. ) 6/12/17) 1:56 PM MARQUETTE LAW REVIEW MARQUETTE 252 (6th ed. 1807); J supra note 8, at 534. ELETE , D for example, the court found that where the land AW L OT OT supra 233 URTS N , O A Digest of the Laws of England , 52 Mass. at 311; M (D &W Such changes were Such were because they acceptable, not DOCX . INOR 227 667 (5th ed. 1826). INAL .Id. .Pynchon .Id. .Id. .Id. -F 232 233. 123 Eng. Rep. 806, 806. (1610) 231. M 234 227 228 229 230. Sprankling, Despite the court’s flowery rhetoric on the Americaninnovation, RALEY BRIDGEMENT OF THE NGLAND con and Henry Gwillim’s Tresham v. Lamb A E preme Court specifically followed th ed to wilderness conditions” because in w but ting of trees, boundaries. effectively designate directly relied the court cited and cases that were in perfect agreement. In cases dating back to the early the strict common had held that 1600s the English courts law rule only the identity of the estate.” prevented those changes that “touch[ed] The rule had long allowed that when land historically fluctuated, there was no damagewhen the current tenant changed the use again. long been cited in twotraditio John Comyn’s 894 them laying and by tillage, downotherwise and to grass, again to have re- lands, as occasions of their the use and cultivation change quired.” lands.” of title to upon the evidence “changes because necessary use, were no longer changes to land venting “[t]he described by metesland conveyed is and bounds, or by some general of its limits,and certain description or grass land, wood whether it be arable land kind of land conveyed, pasture or meadow.”land or cleared land, been mowedhad been pasture, but also “had and used for meadow for diverse years,” there was no waste with respect to that parcel when the tenant sowed and ploughed it. In rule allowing for changes in land 4F according to Bacon and Gwillim, wa arable, and sometimes meadow, and sometimesthere, the pasture, 39285-mqt_100-3 Sheet No. 116 Side B 06/19/2017 09:53:44 06/19/2017 B No. 116 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 117 Side A 06/19/2017 09:53:44 252 (6th but no AW 242 L . In 1850, the on this longstand- on this 895 895 Pynchon 667 (5th ed. 1826). , this is precisely Justice , this is precisely 240 ey “touch[ed] the identity the identity ey “touch[ed] 243 BRIDGEMENT OF THE The argument Justice that A 236 NGLAND EW E Pynchon ere wasto punch an- no reason ,AN this difference is to be taken AWS OF England this would be waste. England this would be waste. The court did find that “[w]hatever find The court did L Comyn’s similarly treatise that finds WILLIM Rather than elaborating a new Rather than elaborating rule, 241 235 G 238 opinion, relies directly opinion, , the court found: , the court found: note 2, § 383. ENRY ) 6/12/17) 1:56 PM IGEST OF THE &H supra ELETE , Pynchon D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW ,AD OT OT ACON URTS Where could not be the the land use fluctuated, it N B O 237 , 52 Mass. at 311. (D &W OMYNS at 277. C DOCX . Clemence v. Steere at 274. at 276. INOR ATTHEW OHN endorsed one dating back centuries in English jurisprudence. back centuries in English jurisprudence. endorsed one dating The defendant is charged with having converted mead- ow into pasture land. In But we are not to apply the English law too strictly. Our lands are in many differently respects cultivated from and land in England; into account. Here it is necessary to show that the change is detrimental to the inheritance and contrary to If in this case the ordinary course of good husbandry. the change injured the farm, or was such a change as no waste. was it make, would good farmer INAL .Pynchon .Id. .Id. .Id. . See id. In -F 239 236. J 237. M 238 239. Clemence v. Steere, 1 R.I. 272 (1850) 240 241 242 243 235. M Additionally, the court failed to award any damages for waste A closely followed second influential case M K RALEY C Y when the defendant tore down a house that was alleged “not to be thereparable, or so dilapidated that of repairing would expense be- be yond the value of the house.” where of land has changed the use “where it was sometimes pasture, and sometimes no waste. there is arable,” mayto it,” have been its value, the reversioner had a right Wilde makes in his of the estate.” 2017] waste.” it is not of ploughing as waste changes only counted ing rule: th if 4F source of the identity of the estate; th source of the identity other change in land use as waste.other change in In ed. 1807). damages were awarded for razing the house. Pynchon Wilde’s use changes didn’t apply the strict rule against land reasoning: to the American wilderness because metes and bounds instead of land boundaries. uses delineated Supreme Island followed Court of Rhode the Massachusetts exam- ple. 39285-mqt_100-3 Sheet No. 117 Side A 06/19/2017 09:53:44 06/19/2017 A No. 117 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 117 Side B 06/19/2017 09:53:44 M K C Y This This 245 , the defendant had [100:861 [100:861 Cannon The court reasoned that “[t]he This conclusion came This conclusion from the 251 In 244 The court concluded that the de- The court concluded that the 249 at of England are wholly dissimilar, 250 246 changing the course of husbandry would changing the course ) 6/12/17) 1:56 PM MARQUETTE LAW REVIEW MARQUETTE ELETE D , a Mississippi Supreme case from Court 1881, con- OT OT N O (D The attorney explains that, “[t]he common The attorney explains that, law doctrine DOCX While exactly what the court does not explain makes the . at 297, 303. at 298. at 303. 248 In England, the very changing of the use of land from In England, the very changing wood- 247 INAL .Id. .Id. .Id. .Id. .Id. .Id. .Id. 252 -F 244. Proffitt v. Henderson, 29 Mo. 325, 327–28 (1860). 245 246 247. Cannon v. Barry, 59 Miss. 289, 303 (1881). 248 249 250 251 252 Cannon v. Barry The MissouriThe Supreme waste traditional the Court re-evaluated RALEY court reasoning that “cutting timber that “cutting court reasoning land may, and clearing so far from value of the inheritance.” enhance the being waste, often fendant “has unquestionably been guilty of that which would be fendant “has unquestionably been deemedwaste under the English authorities, but which we cannot of things existing with us, and state pronounce to be such under the under the circumstances of this case.” rule in 1860: the court held that it was the court held rule in 1860: not “wasteto in this country meadow.”arable land into convert cluded that the English lawcluded that the wasthe new “inapplicable” to American context. the attorney’s argumentsrule inexplicable, from the case demonstrate English wastehow the boundary function of law was not needed in America. that anything is waste which impairsas drawing evidence of title, the application in this country, where de- the lands are in fences, has no scribed by land-office numbers.” in doing so he “freely cut and used cleared thirty to forty acres, and the growing timber which on the place, of there is a superabundance for this and all other purposes.” 896 4F land to arable would have been, unquestionably, waste. It would have condition of this country and th and that which wouldthere is altogether inapplicable be a safe test here.” did not mean, however, that did not mean, however, never be waste. The court continued the traditional good husbandry The court continued the traditional never be waste. medium that, “there is a due and reasonable standard, finding to be to the customobserved according farmers. of To cut down all the tim- land and sell it wouldber on a tract of be wasteit would because be detrimental to the inheritance.” 39285-mqt_100-3 Sheet No. 117 Side B 06/19/2017 09:53:44 06/19/2017 B No. 117 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 118 Side A 06/19/2017 09:53:44 and Melms 255 897 897 tional rule forbidding tional rule forbidding ROPERTY AND OTHER INTERESTS g and a potential change potential change g and a P Tiffany describes this rea- EAL finds that “[i]n former finds that “[i]n times, R 259 Tiffany cites both Tiffany cites both 256 HE LAW OF oved methods of identifying land, this ,T the Virginia Supreme the Virginia Court considered Tiffany described the old rule, saying Tiffany described the old rule, By 1920, Tiffany’s treatise speaks all the By 1920, Tiffany’s Real Property 254 258 257 , er applying the tradi er applying the IFFANY ) 6/12/17) 1:56 PM T ELETE note 41, at 954. D 253 A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT N supra HORNDIKE O , T Hubble Cole v. (D 260 DOCX § 247 n.175. IFFANY . at 297. ERBERT , among other cases. INAL § 247 (1903). .Id. .Id. .Id. .Id. .Id. .Id. -F 257 258. 1 T 253 254. 7 S.E. 242 (1888). 255 256. H 260 259 As these cases demonstrate, while later courts at times simply par- In 1888, in In 1888, Writing in 1894, Wyndham Anstis Bewes composed a thorough In 1903, Tiffany’s treatise In 1903, Tiffany’s M K C. The Transformation Waste of Law in America: Treatise Formalization RALEY C Y roted the precedents, earlier American decisions explained their logic in termsof the demise the boundary- rule: of one prong of the waste maintenance function. Treatise authors recognized the same reasoning for the change. more firmly of this change. son as “inapplicable in this country” because “land is almostson as “inapplicable in this country” invaria- by metesbly, at the present day, described and bounds or courses and or survey, and not by its particular distances, or by reference to a plat character.” 2017] waste.tests for of the safest perhaps been As argued attorney the were land boundaries necessary where was no longer the rule though, recorded. precisely 4F some acts were regarded as waste merely because they changed the land, and so impairedappearance of the of title thereto, the evidence but, with of impr the adoption regarded as waste.” can no longer be changes outright, which would have been non-waivable. have would which changes outright, a case involving the erection of a new the erection a case involving buildin husbandry. Whilein the course of the court was on the unsure based truly wasevidence if there the course of husbandry, the in a change consid court did not even Pynchon that the reason for the rule was that a change in husbandry “ren- der[ed] the proof of title more difficult.” IN LAND 39285-mqt_100-3 Sheet No. 118 Side A 06/19/2017 09:53:44 06/19/2017 A No. 118 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 118 Side B 06/19/2017 09:53:44 M K C Y Pyn- Hunt- 264 . Bewes cites the Blakemore noted 263 272 thus placing the shift thus placing the [100:861 [100:861 267 Huntley v. Russell Blakemore that concluded 271 The court concluded that this The court concluded as the leading American cases that 265 “on account of our system of deeds “on account of our system of deeds “reason would be generally of little Blakemore, writing in 1917, explained Bewes explained old and new rules of rules new and old explained Bewes 270 261 note 2, § 383. ) 6/12/17) 1:56 PM MARQUETTE LAW REVIEW MARQUETTE note 23, at 327. supra ELETE , D note 23, at 307. Clemence v. Steere supra OT OT note 20. , URTS N O supra , and (D supra &W , Minor explained that as for changes in land use “touching DOCX OONE . at 130 (citing Huntley v. Russell (1849) 116 Eng. Rep. 1381 (KB)). at 130 (citing Huntley v. Russell (1849) 116 at 29–30. at 18–30, 130–38. at 29–30, 130. 269 INOR LAKEMORE EWES Notably, Bewes and American both English dates adoptions 266 INAL 262 Writing in 1910, Minor detailed the American adoption of the .Id. .Id. .Id. .Id. .Id. .Id. .Id. .Id. -F 268 269. M 270 271. B 264 265 266 267 268. B 1 272 261. B 262 263 When Bewes considered American law, case he determined that Most treatise writers other were in their discussions, less thorough involved the tearing down involved the tearing of another in a of a barn and building RALEY that the old rule was unnecessary that the old rule was unnecessary American this rule. courts had largely abandoned American courts were the new also adopting rule. Bewes cited chon v. Stearns break with English common the law tradition, in the United mid-1800s. States at the the date of transformation.and therefore less specific in placing They turn by the ensconced well was new rule the that clear however, were, of the twentieth Theodore Boone, writing century. Charles in 1901, found that waste law in the United States depended on determining through the good husbandry stand- the change in the property’s value ard. 898 law on the treatise waste. of waste England as well of adoption in and their history United as the States. of the new the same rule to roughly time period. as 1849, with the tide” in England “turn of ley (“a miledifferent location away”). was not waste, of title could in no way because “[t]he evidence be af- fected.” 4F the identity of the estate,” this the identity of the estate,” this weight in the UnitedStates.” that the original waste changes in land use because rule prevented title.” such usages gave “evidences of new rule. 39285-mqt_100-3 Sheet No. 118 Side B 06/19/2017 09:53:44 06/19/2017 B No. 118 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 119 Side A 06/19/2017 09:53:44 274 ex- note 2, supra , URTS If, on the other 277 &W 899 899 Young v. Spencer INOR British tradition, the new British tradition, As As 275 to think of the new rule as dis- accounts have maintainedaccounts that oving the identity of the premis- e landlord’s title,” thus potentially e landlord’s title,” thus potentially er the new it is permissible. rule new rule whenone’s strict the old to make any alteration to the demised 273 ) 6/12/17) 1:56 PM of waste law departs fromof waste in previous accounts ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT N O Sections IV.B, IV.C. (D DOCX Young v. Spencer (1829) 109 Eng. Rep. 405 (KB). Young v. Spencer (1829) 109 Eng. Rep. 405 . INAL .Id. . See supra .See .Id. -F It was this one prong—evidence of title—of the three-prong 273 274 275 276 277.and it “To pull down a house and rebuild it less than before is certainly waste; First, to examine the new rule and illuminate consistencies with its This new history This new M K 276 RALEY D. The Transformation Waste of Law in America: Understanding the Shift C Y wastethat made test positive value punishable when adding the ten- ant’s actions otherwise passed the remaining prongs. boundary maintenance function was made by technological obsolete developments. discusses each of these two This Section in key points further detail. both the original common law rule and the modern British rule, it is appropriate to begin with the concept of ameliorative waste. Amelio- rative waste lies at the heart of the change. Under the old rule, amelio- rative waste was forbidden; und twokey ways. while First, traditional tinctively American. the new Second, the traditional history disputes account of transformation fueled as of land develop- by the pressures and Ameri- British how both explains history new this Rather, ment. to adopt the can courts shifted the shift was radical American a break with The new a shift that is parallel in both countries. history describes his- there is little reason tory concludes that The strict rule against ameliorative waste emerged directly from a fear of title. of a tenant destroying evidence 2017] of deeds.” registries and 4F seems at common law to be no less waste to rebuild it greater than before, because, it is seems at common law to be no less waste to rebuild it greater than before, because, said, it is to the prejudice of the owner of the inheritance, for it is more charge to repair! A better reason is that the consequent alteration in the description of the premises might im- to build a pair the evidence of the owner’s title. Indeed, Lord Coke holds it to be waste even no longer new house where there was none before. But in England, at least, this seems to be the rule if the value of the land has been increased by the rebuilding—a doctrine much more conformable to modern ideas of justice and reason.” M plained, “A tenant has no right premises; not even that which may improve their value, if such an al- teration willthe evidence of th affect causing a difficulty in afterwards pr es. 39285-mqt_100-3 Sheet No. 119 Side A 06/19/2017 09:53:44 06/19/2017 A No. 119 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 119 Side B 06/19/2017 09:53:44 M K 278 C Y Others have fol- 287 [100:861 [100:861 281 argument that if a tenant their omission of the bounda- e, as it may impair the evidence location the build- or function of jury to determine:jury to whether the a fortiori Such reasoning of the English Such reasoning of the English ct temporary buildings that were 284 285 ) 6/12/17) 1:56 PM MARQUETTE LAW REVIEW MARQUETTE ELETE D OT OT note 20, at 138–39. note 20, at 129–30. N O If the tenant “pulled down a barn,” it was not waste, if was not waste, it down a barn,” If the tenant “pulled (D supra supra , , 280 Then, “[i]t follows by an DOCX at 1388. . at 1382. at 134. When there was no problem with impairing of the evidence 286 EWES EWES 279 logically, such acts did not have to constitute waste.acts did not have to constitute logically, such If they INAL .Id. .Id. .Id. .Id. .Id. .Id. -F In such cases, ameliorating waste would not have offended the 282 278. Young Eng. Rep. 405 (KB). v. Spencer (1829) 109 279. Doe v. Burlington (1833) 110 ER 878 (KB). 280 283. Huntley v. Russell 116 Eng. Rep. 1381 (KB) 1381. 284 285 286. B 287 281 282. B English courts specifically connected English courts specifically connected Indeed, the two of waste functions law—boundary-maintenance 283 RALEY title, ameliorative wastebe punished under the remaining need not two prongs. the jury find that the premisesthe jury find that are not damaged. placed on stilts or rocks, so long as they wereplaced on stilts or rocks, so long “removable at will” and “not fixed into the ground.” courts allowed constru tenants to ry-maintenance prong of waste of ameliorating to their acceptance waste. Having no need for waste law to maintain boundaries, English courts determined “nowadays, as a matter of arrangement, to treat w[aste] of trivial founded on injury to title as a possible variety w[aste].” § 381 (internal citations omitted). 900 old the under property, of the the value increased the alteration hand, was next question rule the for the damagedchange the boundaries. ability to prove reversioner’s the it mayThis is because act which be an wouldvalue of the increase the the inheritanc be injurious to estate, yet of title. 4F added value to the property and did not overburden it, and the prop- it, the property and did not overburden added value to erty was in title by the not designated ings, then new buildings might have no impact on the evidence of ti- tle. be not punishable for trivial w[aste], he for meliorating, neither is and of authority.” this is established by abundance and value-maintenance—explain some otherwise anomalous results. and value-maintenance—explain otherwise some anomalous results. Not all common law cases held that it was waste to erect new build- ings; three-pronged common law test. 39285-mqt_100-3 Sheet No. 119 Side B 06/19/2017 09:53:44 06/19/2017 B No. 119 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 120 Side A 06/19/2017 09:53:44 supra , the note 8, at 533–35; note 8, at 533–35; supra supra American courts 901 901 292 Barret v. Barret Barret v. The court then de- The court then int, each explanation note 8, at 533; Purdy, 290 buildings and replacing buildings and replacing In In supra 288 approach, omitting the bound- ste to exist is for it to be prejudi- is for it to be ste to exist note 42, at 1130. As an initial po supra found that for an act to be injurious to be injurious to for an act to found that note 6, at 54–55; Sprankling, note 6, at 54–55; Sprankling, , 294 If the court omitted issue of evidence the supra supra of pulling down old , , Expounding on this premise, Expounding the Court of 291 do so by one of three ways: “by diminishing three ways: do so by one of ) 6/12/17) 1:56 PM g the evidence of title.” g the evidence of 289 note 6, at 54–55; Sprankling, ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW ORTWITZ ORTWITZ OT OT H H supra Cole v. Greene N , O (D 293 DOCX . note 9. note 9. at 1047. ORTWITZ INAL . See generally . Liability Waste for Ameliorative .Id. .Id. . See generally supra supra -F 293 294. H 288 289. Greene v. Cole 85 Eng. Rep. 1037 (KB). 290 291 292 A second point on which the new account would disagree with with disagree account would the new on which A second point American followed courts the same M K RALEY C Y the inheritance, it mustthe inheritance, estate, or, secondlythe value of the it, by increasing the burthen upon or, thirdly, by impairin Purdy, Purdy, assumes—incorrectly—that American courts were something doing distinct that was a great contrast to the approach of British courts. Sprankling, for example, argued that American judges were omitted the boundary-maintenance prong for precisely the same rea- increasingly superfluous given the son as the English courts: it was technical and professional developments in surveying and the registra- tion of deeds. traditional narratives is the idea that the change wastraditional narratives is the idea fueled by the need to develop land. Horwitz, Sprankling, and Purdy’s accounts share a common approach: each cites development pressures to ex- plain the origins of that rule. of the title, the commonof the title, the law rule simply became the two remaining of burden on the property or diminishmentfactors: increase the value of the estate. ary-maintenance and keeping the other two. prong 2017] lowed common the strict connecting this approach, law rule with the “even ameliorativerule against changes.” 4F terminedthe case that in them with new of the reversion might ones, if “the value be increased it was,by the alteration; a question for the jury” therefore, as to whether waste occurred. note 9. King’s Bench in King’s Bench court found that the only way that the only court found for wa inheritance. cial to the 39285-mqt_100-3 Sheet No. 120 Side A 06/19/2017 09:53:44 06/19/2017 A No. 120 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 120 Side B 06/19/2017 09:53:44 M K C Y Pyn- As we have seen, seen, have we As 295 at the English rule had [100:861 [100:861 g the English rule, many 298 the English law Amer- at the As for the American change, 297 rationales based on economicrationales based ne- re development-friendly rule that al- glish rule “inapplicable to this country” glish rule “inapplicable to this , for example, adopted the new American and instead found th 299 ) 6/12/17) 1:56 PM 302 . MARQUETTE LAW REVIEW MARQUETTE note 8, at 535. note 8, at 536. note 8, at 522. note 6, at 54. ELETE D OT OT note 62, at 46–47. supra supra supra supra N While indeed some American cases cite the economic economic the cite cases American some indeed While Sprankling found that American Sprankling found “merely courts , O Pynchon , which, rejected the as previously discussed, specifically 300 296 (D supra , Drown v. Smith v. Drown DOCX . at 536. ORTWITZ 301 URDY contend[s] that U.S.contend[s] that the English law courts refashioned reasons: to promoteof waste for several of efficient use to have inhibited; would law English resources that the of Americanadvance an idea a republi- landholding as of a of feudal hierarchy; and because can enterprise, free of wildbelief that the cultivation underlay the An- land glo-American claim North to America. INAL .Id. -F 299. Sprankling, 300 297. Sprankling, 298. P 295. Sprankling, 296. H 301. Pynchon 52 Mass. v. Stearns, 304, 311 (1846). 302. Drown v. Smith, 52 Me. 141, 144 (1862). Recall that HorwitzRecall that used waste law a primary as example of a larg- Waste changes to land use, were no longer nec- actions, preventing The traditional narrative of jettisoning The traditional narrative of jettisoning RALEY little evidence supports this idea. Setting this aside, however, this aside, there are this idea. Setting supports little evidence development-fueled to doubt the other reasons narrative. in Americaner trend law, the transformation to foster economic of law development. as “wholly inapplicable” to be “varied and accommodated to our new and comparatively unset- tled country.” for adjustin need to cultivate land as a reason rule as “inapplicable” rely on of the cases describing the English chon v. Stearns served the boundary-maintenanceEnglish rule because it no longer function. rule in Maine,En finding the and relying on ican Revolution in favor of a mo lowed timber cutting has often relied on rhetoric from cases that de- or no longer fitted to the scribed the English rule as “inapplicable” “new cited courts that described the English rule country.” Sprankling 902 American uniquely a “creat[ing] jurisprudence.” 4F Purdy eroded the traditional rule; meldingeroded the traditional cessity and presumed owner intent.” 39285-mqt_100-3 Sheet No. 120 Side B 06/19/2017 09:53:44 06/19/2017 B No. 120 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 121 Side A 06/19/2017 09:53:44 306 309 303 The Law of With respect to 307 903 903 308 ion of its limits,ion of its with- The rule was no longer use “touching the identity 310 Tiffany’s treatise, Tiffany’s treatise, summarized the adoption of 304 noted, “The common “The doc- noted, law n in this country, wheren in this country, the lands prohibiting changes in land use be- prohibiting changes in land use note 2, § 383. ) 6/12/17) 1:56 PM Cannon v. Barry Cannon supra ELETE , Where “land is almost invariably, at the present note 41, at 954. D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW note 256, at 560. 305 OT OT URTS N supra O , supra , , 52 Mass. at 311. (D &W , when the Wisconsin Supreme Court adopted the modern DOCX IFFANY . INOR T IFFANY INAL Melms .Id. .Id. .Pynchon -F 308 309. Melms v. Pabst Brewing Co., 104 Wis. 7, 12, 79 N.W. 738, 739 (1899). 310 307. M 303 304. Cannon v. Barry, 59 Miss. 289, 297 (1881). 305. T 306. 1 In M K RALEY C Y Real Property and OtherReal Property and in Land Interests the newformer rule, explaining that “[i]n times, some were acts re- garded as waste merely the appearance of the because they changed land, and so impaired with the evidence of title thereto, but, the adop- tion of improved methods be re- land, this can no longer of identifying garded as waste.” of the estate,” this “reason [for punishing a change of land use] wouldof the estate,” this “reason [for punishing be generally of little weight in the United States.” cause they impaired evidence of title. Minor explained in his treatise on property law in land that, as for changes that the old rule served a purpose in rule, the court specifically noted law that was no longer administratively or scientifically necessary. When it came to impairing title, it had been “a cogent the evidence of and persuasive [rule] in former times,” but with modernization, it .” . . . “ha[d] lost most, if not all, of its force there is no need for a strict rule there is no need for a strict rule 2017] metes by described is conveyed land “[t]he because essary and or by somebounds, descript general and certain conveyed, whether kind of land designation of the out any it be arable or meadow.” land, pasture land or cleared wood grass land, land or Or, in as the attorney is waste which trine that anything impairs of title, as the evidence applicatio drawing in fences, has no land-office numbers.”are described by 4F day, described by metesday, courses and distances, or by and bounds or not by its particular character,” reference to a plat or survey, and needed in a world with establishment “accurate surveys and the of the the changes in technology, Minor noted, “lands are commonly Minor noted, the changes in technology, de- scribed by metes and bounds, and seldom by the character which they happen to have at the time, as arable, pasture, etc.” 39285-mqt_100-3 Sheet No. 121 Side A 06/19/2017 09:53:44 06/19/2017 A No. 121 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 121 Side B 06/19/2017 09:53:44 M K C Y note 62, at Because Because Like the the Like 314 312 supra , due and husband- URDY Maleverer v. Spinke The good husbandry [100:861 [100:861 318 317 Courts implied a rule that dispense with of the prong e English courts, but rather 316 But the evidence here shows But the evidence 313 In such a context, when such a context, In it came prongs of the old rule, American prongs of the old note 20, at 12–13. 311 supra , EWES ) 6/12/17) 1:56 PM ificant continuities withificant continuities British cases, be- older MARQUETTE LAW REVIEW MARQUETTE intained boundaries. intained boundaries. ELETE D OT OT note 20, at 13. note 23, at 8; B N O (D supra supra , , DOCX . at 32. at 131–34. OOL EWES INAL .Id. .Id. .Id. .Id. .Id. -F and even without specific covenants. 314. Y 315. B 316 317 318 311 312 313. that an ‘instrumental- Purdy summarizes Sprankling’s approach as “contend[ing] Sprankling has argued that the good husbandry standard was that the good husbandry Sprankling has argued cho- management” to determine whether waste occurred. 315 RALEY to changes on the physical landscape, the court concluded that “there court concluded landscape, the on the physical to changes can be few acts which will impair of title.” any evidence sen by the American courts, makinga break with pri- English courts, marily to advance land development. (1538) found that while land into wood, the tenant could not “convert or wood up bushes, furze, and thorns into arable land,” he could “root the waste test that ma English courts, American waste longer needed courts, English per- to courts no law form boundary-maintenance the New function. pro- technologies and along withfessional surveyors, systems, deed registration performed The American accuracy. courts, did so with greater this function and courts, had determinedlike the English to good husbandry provided evidence of damagegood husbandry provided evidence to the property’s val- ue—one of waste—courts of the two central prongs invoked this im- contracts such as agricultural leas- plied standard even in negotiated es standard was not a new invention for th standard was not a new invention on waste.one that dated to the oldest cases 904 system conveyances.” recording of 4F 46. a tenant was “bound to manage his agricultural land in a husband-like way according to the custom of the country.” a perceived imperativeist’ view of the natural world, coupled with the new conti- to bring husbandry standard, which allowed tenants to nent under the ax and plow, led to the good advancing cultivation.” P clear and develop land in the interests of courts maintained sign ginning withtheir use of the good standard. Indeed, husbandry “good husbandry” became the operative phrase for the new rule. As previ- applied a standard of “ ously discussed, British cases like that by relying on the twothat by relying on remaining 39285-mqt_100-3 Sheet No. 121 Side B 06/19/2017 09:53:44 06/19/2017 B No. 121 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 122 Side A 06/19/2017 09:53:44 321 319 HIFT S Temporally, 323 OCTRINAL 905 905 D , the plaintiff alleged that the alleged that , the plaintiff d or grazed, and not cultivated d or grazed, and glish courts continued after the continued glish courts IMING OF THE T ears in succession, in all probability ears in succession, account very effectively for the strong account very effectively for the Hubblev. Cole note 20, at 134. ) 6/12/17) 1:56 PM It continued to be so under the new rule both It continued to 322 supra , ELETE note 6, at 30. D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW ISTORY AND THE Sprankling, similarly, contrasts an English rule with OT OT H EWES note 23, at 2. N supra 324 O , In such circumstances,husbandry indicated that good (D EW supra 320 , N DOCX at 244–45. . at 54. ORWITZ OOL HE at 243. INAL .Id. .Id. .Id. Id. -F 321 322. Y 320. Hubble v. Cole, 7 S.E. 242, 242 (1888). In this case, the court applied not the Eng- 319. B in Quoted 324 323. H Like the AmericanLike the the En courts, Horwitz found that American waste law by 1820 “bore only the Given that land use conditions varied greatly betweenGiven that land use conditions the two V. T V. M K RALEY C Y the value of the land had been damagedthe value of the by the acts of the tenant. rule change to use the good husbandry standard to evaluate value standard to good husbandry to use the rule change For example,changes. in lish common law regarding good husbandry generally, but rather interpreted a provision in lish common law regarding good husbandry generally, but rather interpreted a provision to the the lease which provided that “the lands shall be farmed in a way to prevent injury same.” he specifically locates the catalyst as “the momenthe specifically locates the catalyst of independence England.” from Good husbandry went hand in hand with value change, which had which change, went hand in hand with value Good husbandry always of proving waste means the quintessential been one of under English common law. 2017] growing melioration,land, for the upon good husbandry.” that is for 4F an American law whose emergenceplaces around the time he of the faintest resemblance” to the law before the Revolution. in England and in America. countries, the development-driven narrative endorsed by Horwitz, Sprankling, and Purdy fails to consistency between and American the English shifts. On the other hand, both jurisdictions similarly experienced the changes that oc- and modernization of survey- curred through the professionalization legal mechanismsing, along with accurate the creation of for recording boundary and title details. for gain crops,” and additionally that “this land lies immediately “this land and additionally that for gain crops,” in the middle fork of Holston in times river, and, of high water, is subject to overflow, plowed and, if three y would water be injured by floods and beyond estimate and beyond reparation.” defendant wasdefendant “plowing river bottom,” 80 or 90 acres of up and that it “would the same require to be mowe 39285-mqt_100-3 Sheet No. 122 Side A 06/19/2017 09:53:44 06/19/2017 A No. 122 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 122 Side B 06/19/2017 09:53:44 M K at C Y Id. , on which as Sprankling Short term leases rast of the Americanrast of the 331 [100:861 [100:861 as the “watershed” case in Ameri- to a couple of jurisdictions, to a couple of jurisdictions, Jackson v. Brownson the English law, ltivation. Logically, “[i]f lands are of the civic republic narrative sug- republic narrative of the civic Rather than concluding that other Rather than concluding 330 If a tenant intended to live on the un- If a tenant intended to live on consider deviating from consider deviating the English Jackson v. Brownson e English change “camee English distinct for quite 333 328 ) 6/12/17) 1:56 PM 327 MARQUETTE LAW REVIEW MARQUETTE note 8, at 534–35. Additionally, Purdy’s cont Purdy’s Additionally, ELETE D Moreover,circumstances such were to analogous 326 OT OT note 9, at 664–65. 332 supra N O Purdy separates the English and American English the separates Purdy of adoption (D supra at 668. 325 DOCX . at 661. Purdy describes INAL Those cases are not only limited Those cases are at 146. . See id. .Id. .Id. -F 329 Id. 329. v. Brownson, 7 Johns. 227, 336 (N.Y. 1810). Jackson 326. Purdy, 325. Sprankling, 327 328 330. Chase v. Hazelton, 7 N.H. 171, 177–78 (1834). 331 332. Ward 3 N.C. 283 (1803). v. Sheppard, 333. Findlay v. Smith,While 20 Va. 134, 143 (1818). one judge, Judge Cabell, spoke of Only early cases, such as a couple of RALEY 142. Even at that, Judge Cabell’s comments appears to be primarily dicta; he makes his deci- to be primarily dicta; he 142. Even at that, Judge Cabell’s comments appears the tes- sion not so much based on the law of waste, but rather by focusing on the intent of tator. the need to accommodate waste law “to the situation of our new and unsettled country,” he the need to accommodate waste law “to the situation of our new and unsettled country,” maderule al- this statement the context of acknowledging that the English specifically in ready “varies and accommodates itself to the varying wants and situations of the different counties in that country” rather than announcing a great break with the common law. can waste law. and English rules and construction rules and construction and English gests that the American in fact, shift with doctrine did, or near the American Revolution. the newsaying that th rule, reasons, and long after American and long after reasons, law completed had from its break doctrine.” English Purdy substantially relies, Purdy substantially vantage to him.” the English rule that allowed for a tenant to work open mines even if they were not mentionedwithin a lease—the need for economic gain from lease was the inferred. term lease of undeveloped land. whollyjurisdictions had “jettisoned” a much more saw court New Hampshire the believe, have us would mediated response from the Americancourts. provided a very specific context—one where it was for the les- illogical see to anticipate making from a financial gain the land unless he could either cut timber or clear land for cu state, he mustleased to a lessor in an uncultivated have of necessity the power to clear; otherwise, the lease would of no profit or ad- be 906 Revolution. 4F rule. but also, as the Newbut also, as the Hampshire Supreme to circum- Court observes, stances wherea contract, in particular a short the court is interpreting 39285-mqt_100-3 Sheet No. 122 Side B 06/19/2017 09:53:44 06/19/2017 B No. 122 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 123 Side A 06/19/2017 09:53:44 has a Jackson the turn of the the turn 907 907 340 ; this also explains the the parties agreed that the parties agreed their holding as in con- This, perhaps, explains 337 . Jackson and uncultivated land cannot and uncultivated land cannot Jackson cut growing trees, that such cutting tury, Alabama still retained the Eng- ictions: “many authorities, both Eng- , rather than seeing a watershed, rather than seeing as case, Jackson v. Brownson Jackson v. Brownson strict English rule wellstrict English beyond ) 6/12/17) 1:56 PM ng annual rents or profits.” ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT N O Still, only a handful of such cases exist; the majority such cases exist; a handful of Still, only of (D , 7 N.H. at 178. 334 Similarly, as of 1836, Massachusetts the old followed Jackson v. Brownson DOCX . As a result, the question of whether or not the law of New law of New question of whether or not the As a result, the at 237. 338 336 As watershed a potential case for American law, INAL as limitedcircumstances to the of a lease of undeveloped The tenant had “no right to .Id. .Chase .Id. -F 335 339 336. 227 (N.Y. Sup. Ct. 1810). v. Brownson, 7 Johns. Jackson 337 334. Parkins v. Coxe, 3 N.C. 517 (1805). 335 338. Senteney v. United Embroidery Co., 159 So. 252, 255 (Ala. 1935). 339. White v. Cutler, 17 Pick. 248, 250 (Mass. 1836). 340 Closer to the middle of the cen Most importantly, there is significant evidence that the strict com- As for for As M K RALEY C Y courts affirmed the English rule, and described formity with the majority of jurisd lish and American, declare that such changes will be deemed waste, wouldeven though the value of the property be enhanced by the al- teration.” rule. would be waste, and that wild be deemed yieldi estate a change in building uses. Alabamalish rule, applying it to prevent recognized that more problematic flaw: In In flaw: problematic more the lease contemplated the only question as leaving land, clearing “committedwhether the tenant by clearing and drain- thereon waste moreing off the land of the a reasonable and due proportion than wood.” York would land to be wastewouldundeveloped find the clearing of was properly before the court in not why so few cite or rely on decisions later that one wouldlack of the trail of subsequent citations expect from a case. watershed mon law these two rule thrived long after cases. As Alabama of 1935, 2017] ex- a reasonable had the tenant lease, then the during land developed support of “for the necessary enough land to be able to clear pectation his family.” applied the jurisdictions century. NewPurdy argues, the Hampshire Supreme Court saw in the holding Jackson land. 4F 39285-mqt_100-3 Sheet No. 123 Side A 06/19/2017 09:53:44 06/19/2017 A No. 123 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 123 Side B 06/19/2017 09:53:44 M K C Y The The 344 Conner v. The court 346 cited the traditional [100:861 [100:861 if she were to cut down 343 ill into a fulling-mill,ill into a or Similarly, “[i]t would seem too and clearing up the land, might rules. This line of cases demon-rules. This line 347 341 st the few waste published cases on to The court specifically The court concluded that it was a needless 348 345 ) 6/12/17) 1:56 PM MARQUETTE LAW REVIEW MARQUETTE ELETE , Conner v. Shepherd, 15 Mass. 164, 167 (1818); Webb v. Town- D OT OT N O (D , 15 Mass. at 167. DOCX . , determining whether or not a widow was entitled to a dower [i]t is an old principle of the common of the principle an old [i]t is law, a tenant that of waste,is guilty if he materially the nature changes Thus, it is held, leased. of the building and character corn-m convert a that he cannot a water-mill into a wind-mill, or a log-wood-mill into a cotton-mill, or a dwelling-house into a warehouse,or a brewhouse into an office. INAL . See generally, e.g. . Conner .Id. .Id. .Id. .Id. 342 -F 341. Parkman’s Adm’r Tool, 34 Ala. 393, 396 (1859). v. Aicardi & 342. Miller 55 Ind. 71, 75 (1876). v. Shields, 343 344 345 346 347 348 To see how persisted beyond the American long the old rule Revo- Dowerwaste incorporated the traditional cases often rules to de- Indiana applied the traditional English rule through 1876, limiting the traditional English rule through Indiana applied RALEY strates fidelity to the old rule, continuing wellstrates fidelity to after the American Rev- century. and through the nineteenth olution lution, it is important to look pa the more litigation on dower robust waste law, existed in the English common as it traditionally law, would to the case. apply limit on the estate to give the widow a dower right in wild lands be- cause she woulddo nothing with be able to draw the land and to no income from it because of the application of waste laws. reasoned that “her estate, would be forfeited any of the trees valuable as timber.” that the mere change of the property from wilderness to arable or pas- ture land, by cutting down the wood be considered as waste.” termine the rights of widows to wilderness lands. For example, in 1818 the Massachusetts Supreme Judicial Court decided Shepherd her husband. owned by land or uncultivated wild within right relying primarilycourt concluded that she did not, on the fact that 908 4F the right of a tenant to take timberthe right of a tenant to only what wasfor re- necessary pairs. send, 18 Mass. 21, 22 (1822); Ford v. Erskine, 50 Me. 227, 230 (1862). 39285-mqt_100-3 Sheet No. 123 Side B 06/19/2017 09:53:44 06/19/2017 B No. 123 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 124 Side A 06/19/2017 09:53:44 Id. In 355 909 909 the inheritance, in the same in the the inheritance, , although noting that for the , although noting only to wildor uncultivated 350 The court noted that “[t]his has The court noted that “[t]his has did not apply it for the purpose of the purpose it for not apply did lands “yield no annual profit, and lands “yield no 354 y a century later, Massachusetts fol- shift soon after the revolutionary pe- shift soon after the , Maine followed Massachusetts’ rea- Instead, the court reasoned that the land that the land the court reasoned Instead, 349 ) 6/12/17) 1:56 PM Conner v. Shepherd 353 Following Horwitz, Purdy, one Sprankling, and ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW 352 OT OT N O (D DOCX at 164–67. at 167. . at 250; Webb v. Townsend, 18 Mass. 21, 22 (1822). The court explained that there was The court explained no “dower in wild and INAL .Id. .Id. .Id. .Id. .Id. .Id. 351 -F 353. or not the piece The question, then, when determining dower rights was whether 354. Ford v. Erskine, 50 Me. 227, 230 (1862). 355 349 350 351. White v. Cutler, 34 Mass. 248, 250–51 (Mass. its ruling ex- 1836). The court limited 352 Massachusetts was not alone in relying on traditional English In 1836 the Massachusetts Supreme Judicial Court again considered M K RALEY C Y of land was accurately described as wild and uncultivated. Goodspeed v. Lawrence, 208 of land was accurately described as wild justice that the widow can occupy the lands Mass. 258, 260 (1911) (“The finding of the single that here in question without committing waste does not mean, as the appellant contends, It is plain the widow can occupy but cannot improve these lots without committing waste. that they can be improved without committing waste, and that the single justice so found. It follows that they are not wild land within R.L. c. 132, § 3.”). which her husband died seized.” long been the settled law of this State and of Massachusetts.” to theplaining that, “These reasons apply as well case of a woodlot situated in the midst of a cultivated country, state. But the chief justice, in deliver- as to forest lands in their original care in termsing the opinion of the Court in this case, takes to limit its operation to the case a of woodlands not used or connected with estate.” cultivated farm, or other improved lands. because such uncultivated lands” the widow could not makesecondly, because beneficial use of the only them, of which without they are capable, committing waste and for- feiting the estate.” might would expect that the rule riod, but in fact it did not. Nearl lowed the same rule. waste law to determine the extent of dower As rights. the Maine Su- preme explained in 1862, the old waste Court rule was retained by statute, and thus “a widow not be endowed shall of wild lands of 2017] but land uses, of not changing rule maintaining boundaries. “even if it changes in existed to prevent use rule because the property became thereby morewould valuable, [it] in dower the estate subject to a right the heir having to forfeiture: character as it was left by the ancestor.” the issue and affirmed purposes of dower land it applied 4F soning based on the English law of waste. According to the Maine of soning based on the English law Su- maintaining this dower standard 39285-mqt_100-3 Sheet No. 124 Side A 06/19/2017 09:53:44 06/19/2017 A No. 124 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 124 Side B 06/19/2017 09:53:44 M K 361 C Y the tenant in the tenant 364 ictions, long after the [100:861 [100:861 The Georgia court not- 357 360 at within Georgia, “these com- practicable value to practicable which lands were subject to dower cultivation;’ because a life estate in cultivation;’ Multiple jurisd 363 ) 6/12/17) 1:56 PM establishing dower rights. at 561. MARQUETTE LAW REVIEW MARQUETTE Id. ELETE D 356 OT OT N O (D Additionally, may the life tenant use dead wood for 358 DOCX . at 560. Wisconsin adopts the modern American standard of considering the at 105. Wisconsin, ultimately, prefer the English rule, but al- did not INAL To go beyond these two To go beyond uses, however, was waste, because 362 .Id. .Id. .Id. .Id. .Id. -F 359 362. Wilkinson v. Wilkinson, 59 Wis. 561, 18 N.W. 557, 527, 529 (1884). 363 356 357. (1819). v. Perley, 2 N.H. 56, 59 Johnson 358. Dickinson v. Jones, 36 Ga. 97, 104 (1867). 359 360 361 364. One might interpret Pennsylvania as a jurisdiction that in earlier years rejected As of 1867, the Supreme of Georgia Court still applied the tradi- New Hampshirecourts similarly right of dower concluded, “[t]he RALEY American and into the twentieth Revolution relied on the century, English rule of waste in overall value of the property and the rule of good husbandry: “[i]t is not waste for the life overall value of the property and the rule of good husbandry: “[i]t is not waste for tenant to cut down wood or timber, so as to fit the land for cultivation or pasture, provided to the this does not damage or diminish the value of the inheritance, and is conformable rules of good husbandry.” tional rule. Indeed, thetional rule. Indeed, Coke, affirming court relied on Lord that a may“tenant-for-life cut timbertwenty trees, (that is, trees of years times,age,) at seasonable or fences on for the repairing of the houses the land.” fuel. “[a]ll timber belongs to the remainder man.” removeded that such restrictions had been in someAmerican of the states, such as New York,th but found mon have not been altered by any legislative enactment, law doctrines on the [c]ourts.” and are therefore obligatory In 1884, the Wisconsin Supreme Court considered the dower rules from multiple states, reviewing those apply the that did and did not English rule of waste to determine rights. 910 preme dower is, that this rule reason for “[t]he Court, an estate being woodlandfor life only, can be of no dower, improved as it cannot be nor the wood without cut off by her for waste.”liability is limited to lands ‘in a state of of nature wouldlands in a state be worthless, the tenant for generally to trespass and waste,life being subject if she cut down wood and timberfor the purposes of or cultivation.” sale 4F so did not dismiss it outright without considering the weight of the states maintainingthat rule. 39285-mqt_100-3 Sheet No. 124 Side B 06/19/2017 09:53:44 06/19/2017 B No. 124 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 125 Side A 06/19/2017 09:53:44 Because of of Because 366 le, Merrill opposed 911 911 incorporation of the incorporation of , the court allowed the widow to ovide another source of in- source another ovide tion. One of the traditional shift from this ru case, which he describes as “the cata- the author must something intend more without any words of inheritance;— ictions, relying on the ictions, relying on Given that “[a] devise is always Given that “[a] intended 368 fee Hastings v. Crunckleton 367 Melms ) 6/12/17) 1:56 PM ELETE would be of no use to the devisee.” would be of no D 365 A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW note 11, at 1084. OT OT N O supra (D , 10 Mass. at 307. Merrillthat “[t]he real transformation argues in the Amer- life estate DOCX . 370 Id. INAL Like the dower these will cases, cases demonstrate the continu- .Sargent .Id. .Id. -F 369 365. devise “without words of inheritance” is one for life only. Sargent v. general, a In 366. Babb v. Perley, 1 Me. 6, 8–9 (1820). 367 368 369 370. Merrill, Cases wills interpreting pr and deeds When it comes to dating the Courts in multiple jurisd M K RALEY C Y formation on American at least through the old rule, applying courts fewthe first Revolu decades after the quandaries of interpreting estate language is determining estate language of interpreting quandaries when the simple. The general a fee a life estate versus to create author intended require wordsrule has been to to create a fee simple; of inheritance the overall rule of interpretation,has been however, the author’s intent to benefit the devisee. ican law of wastethe occurred not in the nineteenth century, but in the rules of waste, in wild, courts reasoned that a life estate uncultivat- ed lands was “worthless.” the British rule in dower cases. In from the circumstances that the widow received only un- appears clear lands. However, it and therefore to have any support from the cultivated lands in her common law division have had to clear some area for cultivation. 3 lands, which she could not sell, she would seems more an exception to the general rule Yeates 261 (1801). Such reasoning by the courts rather than the adoption of a new one. Towne, 10 Mass. of “[a] devise is always intended for the benefit 303, 307 (1813). However, the party.” 2017] 4F than a life estate. The court concluded, “[t]he inference then is clear, than a life estate. The court concluded, that a devise of such land, without words carries a of inheritance, fee.” ing importance of the traditional English rule. English rule of waste their state common into law, used waste law to illuminate Courts the intent. devise of wild reasoned that “a and un- carried a cultivated land Horwitz, change to nearer the Sprankling, and Purdy, dating the rule twentieth century, to the because a for the benefit of the party,” lytic decision that began the process of remakinglytic decision that began the process this the doctrine in fashion.” 39285-mqt_100-3 Sheet No. 125 Side A 06/19/2017 09:53:44 06/19/2017 A No. 125 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 125 Side B 06/19/2017 09:53:44 M K OKE C Y Deepa Absolute , all courts , all courts see also REATISE ON THE ,AT Melms at 1055; . 2157, 2183 n.157 (2012) Id. EV OSCOE Merrill does not see R [100:861 [100:861 . 657, 672 (2014) (describing 375 .L.R EV A P ENRY L. R note 23, at 15–16. The tenant was re- note 23, at 60–61. Henry Roscoe, in his , 160 U. ASON law on [agricultural cultivation 81–82 (1840). Roscoe goes on to say that 81–82 (1840). Roscoe goes on to say that On the other hand, Roscoe does find that supra supra , 373 Id. , .M EO as potentially “the most important decision ever as potentially “the most important decision new rule, omitting the boundary- OOL OOL ROPERTY Merrill argues “Before of property by someone of property temporarily in P 372 , 21 G Melms EAL So why Merrill does until af- not see a shift Greene v. Cole 85 Eng. Rep. 1037 (KB) 1047 (discussing R 374 ) 6/12/17) 1:56 PM MARQUETTE LAW REVIEW MARQUETTE ELETE See also D note 11, at 1058. In its earliest iterations, the common law held that note 11, at 1058. In its earliest iterations, note 11, at 1079. OT OT N ELATING TO O at 82. Section IV.B. R as “[a] leading American case that breaks with the English common law as “[a] leading American case that breaks supra supra (D AndMerrill to regard person the only been has not material alteration Id. Relative Preferences in Property Law 371 § 53a (8th ed. 1822). However, other cases point to a different result by the 53a (8th ed. 1822). However, other cases point to a different result § Improvement Doctrines DOCX . ? Merrill that the cases cited by Horwitz, argued and Purdy, at 1080. Melms and CTIONS A INAL as the landmark case. . See supra .Id. -F as the “landmark case” of when “American courts began to relax this absolute rule of as the “landmark case” of when “American ITTLETON 375. Merrill, 374 373. Merrill, 371 372. Thomas Merrill describes As we have seen, a number of American nine- cases through the Melms L RALEY AW OF Varadarajan, how the building of a new house might or might not be waste, and requiring a new build- how the building of a new house might or might not be waste, and requiring a new ing to precisely match the size of the old one). ON treatise, finds that “[i]f the house be ruinous at the time of the tenant’s coming in, yet, if he treatise, finds that “[i]f the house be ruinous pull it down, it will be waste; unless he re-build it.” 1 H quired to keep a house in good order even “though no timber grow on the ground.” C “though no timber grow on the ground.” quired to keep a house in good order even possession waspossession as waste.” regarded rule”). (describing the “[p]ulling down of a mansion-house” was not only waste, but actually an “aggravated the “[p]ulling down of a mansion-house” in equity despite a covenant providing the prop- act[] of waste,” which might be restrained erty “without impeachment of waste.” Y L ter agricultural cultivation. Sprankling all involved of the newthese cases as evidence he main- rule being applied because wouldtains that courts the same have reached outcome under the old that it wasrule, and argues was “not clear that there any real differ- ence between English and American the law of waste.” rendered by an American court concerning 912 twentieth.” Melms adopted the teenth century maintenance the waste prong and leaving rule with only the two val- ue-maintenance prongs. 4F mid-nineteenth century. Writing in 1863, George Yool found that English courts would up- a building provided that the value of the hold the action of the defendant in removing property remained stable or increased. Y converting a house to another purpose will be waste, even if the conversion increases the converting a house to another purpose will be waste, even if the conversion increases property value. pulling down a house and rebuilding will be acceptable, provided that the new house is pulling down a house and rebuilding will neither smaller nor larger than the old one. Melms centuries”); Lior Jacob Strahilevitz, waste in the late-nineteenth and early-twentieth Preferences would have regarded the deliberate destruction of a house to be waste. to be waste. of a house deliberate destruction regarded the would have any Indeed, 39285-mqt_100-3 Sheet No. 125 Side B 06/19/2017 09:53:44 06/19/2017 B No. 125 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 126 Side A 06/19/2017 09:53:44 material , which Merrill 383 381 Bewes, of of Bewes, 382 Melms maintained the would have sup- would Doherty v. Allman 913 913 note 20, at 138 (quoting Jones Melms cited indicated that the old rule indicated that the supra contributed to the solidify- , decided in 1875, also indicates that , shifts in land use. Although use. land in shifts Melms courts had already shifted fromcourts had already glish courts still glish courts still relies on Bewes when deciding relies on Bewes when deciding EWES e change wille change a meli- be, in effect, Melms and Merrill no additional provides by a tenant ‘willby a tenant enjoined in not be glish adoption of the new dates rule 379 Melms Jones v. Chappell In re McIntosh and followed the new rule as it had al- 384 (1891) , as “a milestone in a transformation in the law of waste and ) 6/12/17) 1:56 PM In support of this Merrillsupport In to cites Melms ELETE 376 D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW note 11, at 1080 n.114. OT OT Doherty note 20, at 130. N O Section IV.A. supra (D supra In re McIntosh , As we seen, however, have Merrill the cases that cites are DOCX , the court concluded that the old rule of “[i]f the tenant build a new house it is . at 1079–80. at 1080 n.114. EWES 380 Pynchon v. Stearns and INAL of property by someone temporarily in possession was regarded as waste.” Mer- Jones .Id. .Id. . See supra 378 In support of this proposition, this proposition, In support of -F 377 384. Merrill describes 376 377 378. 3 App. Cas. 709 (HL) (appeal taken from N. Ir.). [1878] 379. 61 LJR 164 (Eng.). (1891) 380. Merrill, 381 382. Melms Wis. v. Pabst Brewing Co., 104 7, 12, 79 N.W. 739 (1899). 738, 383. B The better understanding is that The better understanding is that Notably, seem it does not that the court in M K RALEY C Y alteration v. Chappell [1875] 20 LR Eq. 539 (Eng.) 540). that took place in the twentieth century.” Merrill states that “[b]efore Melms, all courts would have regarded the deliberate destruction of a house to be waste. Indeed, any of another in a different location a significant distance away.of another in a different location in the United ing a trend that had already begun States, with cases such as neglected to recognize that the English neglected to recognize the original law of waste to embracenew the rule. ported Merrill’s suggestion that the En and that rule old for value-enhancing would have allowed Merrill not discuss Bewes, does to adopt the new citing the pages where rule, specifically Bewes dis- cusses hownew England had already adopted the rule. course, not only finds that the En points to a case that addressed but also to the mid-nineteenth century, tearing downnot agricultural changes, but the of a barn and building 2017] value change].” and twobriefly discussed “‘even in Eng- reasoned that and English cases, uses in agricultural land’ a change equity when that th it clearly appears change whichorating rather improves than injures the inheritance it.’” (1878) support. followingnot English cases old rule, but the new the one. 4F w[aste]” was “not the law at the present time.” B the English courts had already considered and adopted the new rule in the context of build- the English courts had already considered ings. In 39285-mqt_100-3 Sheet No. 126 Side A 06/19/2017 09:53:44 06/19/2017 A No. 126 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 126 Side B 06/19/2017 09:53:44 M K 391 , C Y rule Mer- 386 , 245 N.Y.S. Brokaw Melms was not a not was Restatement of as the turning Melms decision became so Melms a New York case that [100:861 [100:861 , a Wisconsin case that 387 aff’d mem. per curiam , Melms Melms Merrill the against has argued re persuasive argument involves for inclusion in the for inclusion in Merrill’s distinguishing of earlier 385 for determining what factors influ- 390 . the Legal Realist movement.”the Legal , 177 N.E. 186 (N.Y. 1931). Merrill concludes that the Melms 388 Brokaw v. Fairchild Melms be overturned, adopted the reasoning in be overturned, adopted the reasoning ) 6/12/17) 1:56 PM Pynchon v. Stearns, 52 Mass. 304 (1846). on the American Law Institute. Merrillmay in- MARQUETTE LAW REVIEW MARQUETTE ELETE See Brokaw D decision. Merrill suggests that the note 11, at 1082–83. note 11, at 1080. note 11, at 1082–83. OT OT aff’d mem. per curiam N . In particular, treatise writers. In particular, treatise of the centu- at the turn Melms 392 O supra supra supra 393 (D Melms Part V. Part V. Melms DOCX . 389 at 1083. .” note 11, at 1058. INAL , and the Review Commission, in turn, influenced the American .Id. . Supra .Id. . Supra -F 389 390 393 391. Brokaw Ct. 1929), v. Fairchild, 237 N.Y.S. 6 (Sup. 388. Merrill, 385 386. Merrill, 387. 237 N.Y.S. 6 (Sup. Ct. 1929), aff’d mem. per curiam, 245 N.Y.S. 402 (App. Div. 392. Merrill, With there remain that said, reasons to be cautious of Merrill’s em- The timing of the shift matters supra RALEY rejected the new rule—as wellas subsequent, lobbying in successful favor of the may spurred American have jurisdictions to more the rapidly adopt rule. waste new significant because the New York Law Review Commission, which recommended that Melms Law Institute. rill, phasis on found the changes in wastery appear to have law fully under way ra- ther than just nascent with evidence suggests cases fails to convince; contrary landmarkhard to see is case. For that reason, it point in American law. Merrill’s mo the influence of against a Newdeed be correct that the backlash York case, 914 in England. established been ready 4F Property rill describes tworill describes decisions— conflicting adopted the new rule, and prevailed because “[t]he New York reformprevailed because proved to be highly influ- ential with American bodies such as the Law Institute, which also withadopted a test consistent developmenttransformation finding “that narrative, was a mani- not economic it was a Rather, and of inexorable social festation change. top-down reform introduced by 402 (App. Div. 1930), 1930), aff’d mem. per curiam, 177 N.E. 186 (N.Y. 1931). (N.Y. 1931). 1930), aff’d mem. per curiam, 177 N.E. 186 39285-mqt_100-3 Sheet No. 126 Side B 06/19/2017 09:53:44 06/19/2017 B No. 126 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 127 Side A 06/19/2017 09:53:44 397 398 ODERN M The changes in 396 915 915 RITIQUE OF ETHODS C M ury later, casts doubt on the casts doubt ury later, logy and did so logically and ed fidelity to existing legal doc- AW AND A L HEORY AND T ASTE W ne would have been enormouslyne would more useful ISTORY ) 6/12/17) 1:56 PM H ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW ISTORY OF OT OT EGAL N L H O (D EW Part IV. Part IV. Part III. Part IV. Part IV. N DOCX . Instead, the change maintain Second, while social previous accounts source change in the HE INAL . Supra . Supra . Supra . Supra . Supra 394 -F 395 394 395 396 397 398 These differences matter not just because of the role waste law has This new history of waste law differs from the traditional accounts M K VI. T VI. RALEY C Y trine. to maintain coherence within the existing doctrines. and economic pressures of development of cer- or the persuasiveness tain lobbyists and reformers, demonstrates this Article that law shifted in response to modernizations in techno played in understanding American law more generally. Correcting the story of waste law in America provides an impetus to correct also the methodology of modern Accurately understanding legal history. waste law requires knowledge contexts (here, science of both the social and technology more directly than economicdevelopment) and the doctrinal history. Without maintaining doctrinal investigation as a key methodological component, society approaches risk anachro- law and in two ways that matter deeply for those who study legal history. in two ways that matter deeply for those who study legal history. First, the new demonstrates history that the change in waste law was not a radical throwing out of old laws in response to economic pres- sures. Instead, the changes show property law that shifted slowly, even if in response to social contexts, and maintained to past doctrine. fidelity 2017] A the change. enced at the time occur did not that shift of the Ameri- half a cent but roughly can Revolution, general, the eras. In during earlier shift the moreearlier the useful it would of the rule in develop- for citizens to take advantage have been ing land. As shift was it happens, the quite late. Given how much more to see the have been earlier on, it is harder useful the shift would social and economic pressures of land development as the primary changes in wasteforce behind the law. 4F courts transformedidea that waste from due to pressures land devel- opment. doctri A shift in waste law do not support a story that casts law as entirely malleable. 39285-mqt_100-3 Sheet No. 127 Side A 06/19/2017 09:53:44 06/19/2017 A No. 127 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 127 Side B 06/19/2017 09:53:44 . & M K IST , 28 C Y note AW .H ORTON M , which The Trans- supra GRIC , 28 L , 52 A ROFESSOR P Tomlins, See Transformations Theoretically, Hor- [100:861 [100:861 ONOR OF 402 H Transformations II and did so particularly 401 at 1142. , the book that included his Id. SSAYS IN :E orating disciplines from psychology Valid criticisms of this method soon ISTORY H American Legal History in Retrospect and Prospect: Re- American Legal History in Retrospect and Prospect: 399 EGAL L ect of the relationship between law and poli- ) 6/12/17) 1:56 PM Law and American Agricultural Development MARQUETTE LAW REVIEW MARQUETTE ELETE their starting point.” Laura Kalman, D MERICAN OT OT A N 1135, 1141 (2003). Tomlins sees Horwitz as continuing the tradition of O Moreover, isolating law implicitlythat law suggested (D Christopher Tomlins, 400 See NQUIRY 1149, 1149 (2003). DOCX . Transformation of American Law .I (Daniel W. Hamilton & Alfred L. Brophy eds., 2009). INAL OC .Id. A. A Critique Modern of and Methods Theories Legal History of -F NQUIRY &S 402. Tomlins field of American describes the book as having “a major influence on the 399. Scheiber, N. Harry 400 401. Daniel Hamilton and Al Brophy have honored Horwitz with their edited book, Prior to the movement to emphasize socio-economic in le- contexts Hurst and Horwitz and drove a reactionary force against this trend .I ORWITZ RALEY RANSFORMATIONS IN AW OC flections on the Twenty-fifth Anniversary of Morton Horwitz’s Transformation of American Law L gal history, scholars tended to focus on the slow evolution of doctrine. tended to focus on the slowgal history, scholars evolution of doctrine. did a good deal of ‘line-tracing’—connectingIn general, “[h]istorians . —in of ‘follow a kind . . be found in judicial decisions the doctrines to exercise.” the dots’ intellectual On the other hand, Tomlins argues that Hurst, rather than Horwitz, provided the primary metanarrative that “endures as a default setting” for legal history—the idea of the nation the law built. Hurst rather than providing any new metanarrative. legal history” and being “a focus for legal historical scholarship.” 401, at 1136. Laura Kalman finds that “routinely do legal historians today make formation of American Law S with his his with on wastepreviously discussed reflections law. emerged.to rarify and isolate the law It “tend[ed] as a factor in histor- ical change.” J. H 916 development of inevitability of the the sense such as pulls nistic that will, wastedid in the case of as they law, of our understanding distort the history. 4F was entirely immune to the complexforces of socio-economics, as well and circumstancesas other social pressures fell short of revolu- that tion. for decades now, have focused on the complexities historians instead of law incorp and social change, economics.and sociology to anthropology and Horwitz, in particular, influenced legal scholarship enormously, 439, 439 (1978). T witz more developed his approach fully in explicitly tackled the subj 39285-mqt_100-3 Sheet No. 127 Side B 06/19/2017 09:53:44 06/19/2017 B No. 127 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 128 Side A 06/19/2017 09:53:44 HE , 1870–1960: T Tomlins de- Tomlins indistinguisha- AW L 404 As this Article Article this As The focus on law 408 , Aug. 3, 1992, at 38, 38. 917 917 Law, for Horwitz, Horwitz, for Law, 409 406 MERICAN A EPUBLIC R EW N crucial respects crucial rts the role of law in early Amer- HE , T property rights, more difficult to ly embedded conflict and in social vestigation, leads to conclusions like vestigation, leads RANSFORMATION OF ts of the powerful.” T ‘Classical Legal Thought.’” ‘Classical Horwitz,according to Tomlins, “discov- HE 405 ) 6/12/17) 1:56 PM ,T 272 (1992). note 401, at 1136. Tomlins suggests that legal historians have Where Politics Ends note 8, at 534–36. ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW ORWITZ supra OT OT supra N O J. H RTHODOXY (D O Parts II, III. Following Horwitz,legal history has embraced a realist, DOCX Tomlins, . at 1137. at 1140. 407 ORTON EGAL L INAL .Id. .Id. . Supra .See As Sunstein summarizedSunstein As theme” the “overriding it, of the book -F 403 406 407 408. Sprankling, 409 405 404. Cass R. Sunstein, 403. M Few the strength of the law voices have spoken against and society Yet, focusing on the social context, particularly with the social context, particularly Yet, focusing on a modern lens M K RALEY RISIS OF C Y moved toward politics to fill the “vacuum left” after historians outside law abandoned poli- tics for social and cultural history. as a construct effective for achieving social, economic,as a construct effective for achieving spatial and lawgoals can distort the nature of as an independent, stable, and in- society—oneternally consistent structure of that promotes social sta- bility and affirms existing rights and investments, particularly where property is concerned. Too much emphasis on social contexts, and outcomesparticularly on anachronistic future such as environmental lawdestruction, neglects the role of as a conservative force in society— making changes, particularly in achieve. achieve. was “what society’s ‘powerful used to confound and confine groups’ the rest.” was “the rise and fall of rise and fall of was “the C 2017] tics. 4F “law for legal change approach, looking for explanations and society” in social forces. demonstrates, privileging the social context above tracing the evolu- tion of legal doctrines ultimately disto ican society, suggesting that it was much more flexible and responsive to socio-economic change than it necessarily was. and without doctrinal in a solid waste:Sprankling’s on “Driven by the instrumentalist vision, nine- teenth-century American jettisoned the waste courts resoundingly doc- for cultivation.” trine’s ban on clearing forest land er[ed] that law was . . . thorough covered with the finger-prin scribed “Horwitz’s key claim“Horwitz’s key scribed within as legal history to innovation” of law was in “that the history proving ble frompast politics.” 39285-mqt_100-3 Sheet No. 128 Side A 06/19/2017 09:53:44 06/19/2017 A No. 128 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 128 Side B 06/19/2017 09:53:44 M K 413 410 C Y e transformation the beginning and 8 (2005). to existing law. That [100:861 [100:861 Merrill finds that a strict 412 ng the evolution of doctrine RGUMENT A , Cass Sunstein responded by responded , Cass Sunstein lopments in American law.” that through th one accepts Merrill’s argument: is a demonstrable methodology. is a demonstrable methodology. is both a bargain-inducing default is both a bargain-inducing default ne. Beginning at too much of law and on scholarship with “broader understandings about may be floundering as much outside quiet rumblingsquiet question periodically ld embrace a similar impulse. VIDENCE AND E ed substantial fidelity ) 6/12/17) 1:56 PM Transformations II MARQUETTE LAW REVIEW MARQUETTE ISTORICAL ELETE As historians outside law to reestablish their seek note 404, at 40. D ,H 411 note 11, at 1092–93. OT OT N O supra ENIGE supra (D B. A Prescription for Modern Legal Historians H DOCX . AVID INAL .Id. -F 411. D 412. Merrill, 410. Sunstein, 413 Legal historians are, admittedly,Legal historians in suffering from not really alone What modern legal historians seem to have lost over the years is Consider the importance of law’s to itself in the story of fidelity RALEY too little on the actual “concrete deve “concrete on the actual too little 918 movementYet, legal history. in how much we methodologies. our native have abandoned Upon pub- of Horwitz’slication focusing the book for criticizing Part of the problem that the law is to legal histo- and society approach ry suggests where the end is far for sources of change, but in to look more than it a vision of what law is deal of the time,The result is, a great lacks a method- that legal history ology. this malady. Historical method 4F law as in it. David Henige argued, “[h]istorical method recently was but this day of the historiographical enterprise, once a centerpiece seems long gone.” their native methodology: the simple and sometimes tedious exercise of tracing the evolution of doctri methods, legal historians shou ending at the end. It is only through traci ending at the end. It is only through that historians capture the permanence of law—law’sor consistency fidelity to itself. waste law. This Article demonstrates rule prohibiting changes is one that rule prohibiting changes is one rule, as well as a rule consistent the value and function of property as an institution in our society.” the value and function of property of the common law of waste to the modern rule both English and American courts maintain fidelity is all the more significant if Merrill that the new suggested efficient or rule, as a default, is not so useful when compared prohibiting all change and allow- to a standard the rule. ing the parties to contract around 39285-mqt_100-3 Sheet No. 128 Side B 06/19/2017 09:53:44 06/19/2017 B No. 128 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 129 Side A 06/19/2017 09:53:44 While 414 ificant shifts in In the context of 919 919 415 th countries adhered faithfully to faithfully adhered th countries s resulting from sign pattern in terms of the strength of the result was a skewed of history 416 ) 6/12/17) 1:56 PM note 8, at 536. ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT supra N O (D Part I. Part IV. DOCX . INAL . Supra . Supra -F 414. Sprankling, 415 416 That’s strong evidence of the power evidence of That’s strong sug- Such evidence of fidelity. Methodologically, provides a way doctrine tracing to locate the ev- Yet, historians, it is fair to say, have abandoned tracing the evolu- Yet, historians, it is fair to say, M K RALEY C Y there is nothing to celebrate about our uncorrected errors, there is there is nothing to celebrate about something worth noticing in the law’s consistency over time. Moreover, historians need methods for The reigning methodslocating the evidence of continuities. of modern legal history, with their focus on social pressures and transformation, capture moments not focus on the many of change; they do pressures that keep laws in place for centuries, even when the laws aren’t ideal. how waste law in America. changed Doctrine tracing, as exemplified to ease back along the continuum provides a way in this Article, from 2017] If Merrillin bo courts then is correct, 4F the value-maintenance even strict approach, dropping the standard, when approach was the strict more efficient. lawgests that maintains structural or systemic significant and prefer- sometimes, and fidelity that ences for consistency or maybe even often, Article This trump argues that le- such as efficiency. other key values reintegrate thegal historians should methodology of doctrine-tracing, because without it, we the and less accurate theory of have a poorer role of law transformations in society and the process of of law. are, of course, manycontinuities and fidelities. There idence of law’s examples of law’s fidelity, for better or worse. At times law maintains on incorrect informationdoctrines based (such as antiquated princi- what perhaps persisting long beyond ples of science), we might rea- timesonably expect in light of the mecha- necessary for procedural nisms in legislatures and courts. force their reconsideration to property law, that power may be all the more important due to vested rights and the risk of takings claim doctrine. In the context of waste law transformation, Horwitz, Spran- kling, and Purdy all emphasized the social circumstances and disre- garded the continuities of law; tion of doctrine as an approach to legal history. Mosttion of doctrine as an approach historians focus on social factors and economic that may circumstances influence law without much giving attention to the power of law to resist social change and maintain fidelity to past precedents. 39285-mqt_100-3 Sheet No. 129 Side A 06/19/2017 09:53:44 06/19/2017 A No. 129 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 129 Side B 06/19/2017 09:53:44 M K C Y [100:861 [100:861 them of the duty to conduct law, historians cannot allow e world in which to explore waste law—the first to engage in the common law prior to the to specific legal mechanisms.to specific legal To transformed waste law both con- ve gone entirely astray in looking entirely astray ve gone legal history. This is not an argu- This is not legal history. ONCLUSION C courts and with a great deal of doctrinal VII. the doctrinal history. the doctrinal history. ) 6/12/17) 1:56 PM MARQUETTE LAW REVIEW MARQUETTE ELETE in legal history. D OT OT N O (D DOCX . INAL -F The point here is not that we here is not that The point ha This argument does not aim law to topple and society approaches, Waste law has been transformational well beyond its bounds with- This Article offers a new history of This Article offers a new history RALEY to legal and societal approaches in and societal approaches to legal ment law against toward but instead a push social creation, as a recog- law,nizing that at least within common law systems, maintains nu- merous mechanisms and vested rights that give such as stare decises law role in society, making a unique and it a force for perseverance history needs meth- for legal change fully, legal stability. To account evidence of law’s precisely this kind of evidence: odologies that gather to change due fidelity and resistance accurately understand transformationsaccurately understand in social context to investigations of absolve of a parallel investigation 920 the law approach. and society 4F too far along the spec- that historians have gone but rather to suggest trum, social explanations for legal change and ignoring con- favoring sistencies maintainedthe evolution of doctrine. This through Article suggests not that we depart from the law and society approach entire- ly, but rather that historians reintegrate legal history the distinctly methodology of tracing the evolution of doctrine. When the law and our ownsociety approach could have enriched distinct methodology, replaced it. it instead, unfortunately, largely adoption of the modern This new rule. history demonstratesthe flaws in the traditional account, which described a transformation that was uniquely American and driven by the economics land development. of This Article demonstrates that rather than creating a unique and dis- tinctively American rule, our courts temporaneously with British the development with of the doctrine in legal scholarship. It has supported argumentsin legal scholarship. It has supported for new approaches a concret to legal history and provided complex issues of property theory. Following trend, this Article that a number of offering on waste law, contributes to the overall literature important correctives to existing accounts, but also employs the story of waste law’s transformation offering a critique to a greater purpose, of current methods 39285-mqt_100-3 Sheet No. 129 Side B 06/19/2017 09:53:44 06/19/2017 B No. 129 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 130 Side A 06/19/2017 09:53:44 921 921 ogy of modern legal history. ogy of modern legal history. d delving into the history of the into the history d delving of doctrine in favor of law and of doctrine in favor that promotes social stability and without much giving to attention ry, this Articlery, this illuminates two the independent, stable, and internally independent, stable, and internally ) 6/12/17) 1:56 PM ELETE D A NEW HISTORY OF WASTE LAW OF WASTE HISTORY A NEW OT OT N O (D DOCX . INAL -F Finally, this Article employs the new account of the waste law M K RALEY C Y 2017] histo this In detailing consistency. The Article their traditional legal histories have abandoned argues that methodology of tracing the evolution consistent structure of society—one 4F functions of wastedistinct common in the law,the previ- recovering boundary-maintenanceously undescribed analyzing the function. By twofunctions of waste distinct law an boundary-making this Article function in particular, a new created and more of the transformation accurate account of waste law. transformation the methodol to critique and economic that seek social society approaches for le- explanations gal change. Whenon social factors and economic historians focus cir- cumstances that may influence law the power of law change and maintain to resist social fidelity to past accounts, but not only create less accurate historical precedents, they law in society. The focus on lawalso skew as perceptions of the role of social, economica construct effective for achieving goals and spatial can distort the nature of law as an affirms existing rights and investments, particularly where property is this Article argues for reintegrat- concerned. In light of these concerns, ing the distinctly legal history methodology tracing the evolution of of doctrine. 39285-mqt_100-3 Sheet No. 130 Side A 06/19/2017 09:53:44 06/19/2017 A No. 130 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 130 Side B 06/19/2017 09:53:44 M K C Y * * * * * *

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