Pynchon & Company

[robinlandseadel at comcast.net]

 From
Jedediah Purdy: The American Transformation of Waste Doctrine 9 
                                                
 From an economic perspective, the problem that waste law addresses reflects the 
inefficient incentives faced by tenants for years or life.  The efficient 
management strategy for an estate will be that which maximizes the present 
discounted value of its entire expected earnings stream.21  The tenant, however, 
will have incentive to maximize the value of earnings from the estate during her 
tenancy.  This incentive will lead her to premature harvesting of renewable 
resources, such as timber, and non-renewable resources, such as minerals, and to 
neglect of resources whose incremental decay does not affect her earnings 
prospects but will affect the long-term value of the estate, such as soil, 
fences, and buildings.  Richard Posner has suggested that the efficient solution 
to this problem would be to model the tenant as if she were the owner, 
authorizing her to do what a rational owner would have incentive to do, 
but not otherwise.22 Indeed, this was the solution reached by the American
law of waste in the early and middle decades of the nineteenth century.  The 
doctrine had two formulations, which state supreme courts repeated across the 
country: first, the standard of husbandry, or of the prudent farmer, which held 
a tenant’s action not to be waste if it were consistent with the actions a 
prudent owner would take; 23 and second, the standard of material injury, which 
held that a “material” or “permanent injury to the inheritance,” that is, to the 
reversioner’s legitimate interests, would count as waste.24  The two were 
generally treated as synonymous, or the 
 
21 
 See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (3d. ed.) 72-73 (2003). 
22 
 Id.. 

23  See Jackson v. Brownson, 7 Johns. 227, 232 (N.Y. 1810) (defining waste as “a 
permanent injury to the inheritance”); Shine v. Wilcox, 1837 WL 531 (N.C.), *1 
(“the cutting of timber is not waste, unless it does a 
lasting damage to the inheritance”); Davis v. Gilliam, 1848 WL 1441 (N.C.), 

*2 (“the tenant may use the estate, but not so as to take from 
it its intrinsic worth”); Pynchon v. Stearns, 
52 Mass. 304, 312 (1846), 1846 WL 4004 (Mass.),

 *5-6 (“no act of a tenant will 
amount to waste, unless it may be prejudicial to the inheritance”); Owen v. 
Hyde, 1834 WL 1026 (Tenn. Err. And App.), 

*3 (question to ask in a waste case is 
“did [tenant] materially injure the dower estate[?]”); Clemence v. Steere, 1850 
WL 1798 (R.I.), *2 (“it is necessary to show that change is detrimental to the 
inheritance” to prove waste); Keeler v. Eastman, 1839 WL 2405 (Vt.) (tenant may 
act freely, but “not so as to cause damage to the inheritance”). 

24  See Pynchon v. Stearns, supra n. __ at *5 (action consistently practiced 
by regional farmers is not waste); Keeler v. Eastman, supra n. __ (tenant 
does not commit waste by acting “in a prudent and husbandlike manner”)

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