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premises would, however, be waste, regardless of the relative value of the old and new plan, unless the landlord assented to it, for he has a right to be whimsical. The tenant of a farm has the right to take from the premises whatever of fuel he can find in the woods on the land for his house to the extent that the burning of such fuel is customary in the community, provided he does not cut down any timber trees, shade trees, ornamental trees, productive orchards or the like. He can only take the refuse for fuel, or such as would not be of peculiar value to the land beyond its value for fuel. He has also the right to take a reasonable amount of timber trees, according to the custom of the country where the land is, for the repairing of the houses of the lessor on the premises. But to cut timber to sell or for new buildings would be waste in the absence of local justification. The injury or destruction of timber, fruit, or ornamental trees, or of shrubs or plants of value to the land, is waste, for which the tenant is liable in damages as well as for the forfeiture of his term. It is waste for the tenant to open new mines on the premises in the absence of permission in his lease to do so; but he may work opened mines, and for this purpose may drift on the vein and open new shafts for ventilation and to hoist the ore. The remedies for waste are injunction to prevent it, damages for it, and the forfeiture of the term.

§ 49. Dangerous premises: Liability to third parties. At common law the liability of the occupant of land for injuries to others upon the land due to the condition of the premises depends upon the relation of the injured person to the occupant, whether trespasser, licensee, or invited person, and upon whether the occupant actually knew of the danger or could have discovered it by reasonable inspection. See Chapter VI, Section 7, of the article on Torts in Volume III of this work. For a nuisance, injurious to persons off the land, the occupant of the offending premises is liable. A land owner cannot escape liability for injuries by a nuisance on his land by leasing it, and if the tenant continues the nuisance, any third person injured thereby may sue and recover for his injuries of either the tenant or the landlord, regardless of whom the lease bound to make repairs, or he may sue the landlord and tenant jointly. Similarly both parties are liable if the lease contemplates such a use of the premises as will be a nuisance.

It is commonly said that the landlord is also liable to strangers for nuisances which he has agreed with the tenant to guard against, although the premises are in possession of the tenant (1),

But if the lessor is under no duty to repair and has given the entire control to the tenant, he is not liable to any third person for any injury received from a dangerous condition created by the tenant or arising during the term unless the lessor has helped to occasion the injury by volunteering to repair and doing it so negligently that the damage resulted (2). The same has been held though

(1) Ahern v. Steele, 115 N. Y. 203 (collecting cases). Contra: Clyne V. Helmes, 61 N. J. L. 358.

(2) Barman v. Spencer (1898, Ind.), 49 N. E. 9; Munroe v. Carlisle, 176 Mass. 199.

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he had the right to repair or terminate the lease (3).

§ 50. Same: Liability of lessor to tenant. In the absence of statute, contract to repair, or warranty of condition, both the landlord and tenant must use reasonable care and diligence to avoid exposing others to or being themselves injured by, a dangerous condition known to them; and if through their negligence in this respect injury results to themselves or others they must bear the loss or make satisfaction for it. “If the tenant neglect such reasonable care and diligence to ascertain the condition of the premises, or, knowing their condition, assumed the risk, then he cannot recover against the landlord. On the other hand, if the landlord neglect to use reasonable care and diligence in ascertaining whether his premises are safe, or if he actually knew they were unsafe, and conceals or misrepresents their condition, then he is liable, the tenant being without fault. It is not upon the ground of an insurer or warranter of condition under his lease or contract, but on the ground of the obligation implied by law not to expose the tenant or the public to dangers which he knows or in good faith should know, and which the tenant does not know and cannot ascertain by the exercise of reasonable care and diligence. The cases are numerous which use the expressions laid down in the opinion in this case, that the landlord is liable, not only for actual knowledge, but also for reasonable care and diligence in obtaining such knowledge—not only when he knows, but when he ought to know, of the defects, by using ordinary care and diligence." The above quo

(3) Timlin v. Standard Oil Co., 126 N. Y. 514.

tation is from a case in which a lessor was sued by his lessee and her boarders for personal injuries each received from the collapse of the porch to the house due to defective construction and decayed condition not so obviously dangerous as to deter an ordinarily careful person from using it (4).

§ 51. Same: Lessor's promise to remedy. In another case the court held the lessor liable to the tenant in damages for the death of the tenant's child by drowning in a cistern known to the tenant to be unprotected when he went into possession, wherefore he was charged with contributory negligence and also was charged to have assumed the risk, though the lessor had promised when the lease was made to fix it. The court said: “If it can be said that the master, by specially agreeing to remedy a certain defect, assumes to be responsible for any injury caused thereby, until he can have a reasonable time to repair, it can with like reason be said that the landlord who undertakes and promises to remedy or repair a certain known and specific danger existing on the rented premises at the time and before they are rented, assumes the responsibility for any injury caused by such dangerous place, until he have a reasonable time in which to repair, providing, of course, that care is exercised to avoid falling into the dangerous place, or to avoid injury from the known defect” (5).

A contrary view is expressed in Perez v. Raybaud (6),

(4) Hines v. Wilcox, 96 Tenn. 148.
(6) Stillwell v. South L. L. Co. (Ky.), 52 L. R. A. 325.
(6) 76 Tex. 191.

holding the landlord not liable to action by the servant of the tenant for injuries from the falling of a cistern after

a the lessor had been informed that the supports were decayed and had promised to repair. It was held that the promise was void for want of consideration and the tenant's servant was not a third person.

852. Same: Lessor's concealment of knowledge. In another case the lessee complained to the lessor about the well water, and the lessor, on examination, found a putrid dog in the well, of which he did not inform the lessee, but said the water would do to scrub with, though not fit to drink. He left the dog in the well, the tenant and his family continued to use it, and several of them became sick. In an action for the rent, judgment was given for the defendant for the amount of his damages and expense from use of the polluted water (7).

The rule perhaps is that the lessor is under no obligation to inspect the premises continually after the lessee takes possession, in order to guard him against dangers arising or that might be discovered after the lease is made; but if he actually discovers or suspects dangers after the lessee goes into possession, and fails to warn the lessee of the danger, he is liable in damages for whatever injury results (8). This is not by virtue of any provision in the lease or warranty of safety, but because any concealed danger in premises is a nuisance for the results of which the owner is liable if he is in fault. But not all courts hold even this. In Massachusetts the dis

(7) Maywood v. Logan, 78 Mich. 135. (8) Gallagher v. Button, 73 Conn. 172.

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