Short v. Piper

4 Del. 181

• Court: Superior Court of Delaware
• Decided: July 5, 1844
• Status: Published

Opinion

By the Court:

Booth, Chief Justice.

—The court have some doubt arising from the fact that the text books usually state this action, as the action of waste, as competent only to the next immediate reversioner or remainderman. But we' cannot at present see the reason of so confining it. The reversioner has an interest in the property injured; the wrong is to him more than to the remainderman for life; and the principle of law is, that wherever there is a right there ought to be a remedy: and we know of no remedy for the reversioner in fee, unless he can have it in this action.

We presume the expression in the books, that this action may be maintained by the person who has the immediate reversion, or remainder, arises from the fact that the action of waste, being given by statute, is so confined ;%nd one reason for this is, that in that action the place wasted is recovered, and the action is necessarily by the person next entitled. It is probable that the same expression ha's been continued, without the same reason, in application to the action on the case in the nature of waste.

As at present advised we refuse the nonsuit; and will hear the matter re-argued if requested. Indeed, we could not nonsuit, the plaintiff, if we thought otherwise on this question; as the fourth count is general, in trover for the value of the timber, &e., severed from the land.

Verdict for plaintiff,