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deemed waste.

What acts are Converting a meadow into an orchard, or ploughing up a hop ground and sowing it with grain is waste.(a) It has been said that the division of a great meadow into a number of parcels, is not waste.() But the conversion of a corn-mill into a fulling mill, or a brew house into any other office, is waste; (c) and in a modern case, Mr. Justice Buller was clearly of opinion, that the changing a logwood-mill into a cottonmill, was waste.(d) If the lessee pulls down the house and build a new one, it is waste, if the new one is either larger or smaller than the one demised.(e)[3] In a late case one of the

(a) Owen, 66.

(b) 2 Lev. 174.

(c) Green v. Cole, 2 Saund. 252. 1 Lev. 309. 1 Mod. 94.

(d) Bridges v. Kilburn, cit. 5 Ves. 689.

(e) 22 Vin. Abr. 439. Bro. Waste, pl. 143, cit. ib.

therefore, the rules of law must be accommodated to the situation of the country and the course of affairs here.

[3] Some of the ancient cases restrict the tenant within very narrow limits, as to his right to alter or improve the premises held by him without subjecting him to an action of waste, or to a forfeiture of the estate. It was for a time questionable whether a tenant or a copyholder could erect a new building upon the premises, without subjecting himself to a loss of the property. Ward's case, 4 Leon. 241; Gray v. Ulysses, 2 Dyer, 211, b. note; Paston v. Uthurts, Littleton's Rep. 264; Hutton, 162, S. C.; Cecil v. Cane, D'Anver's Abr. 194; 2 Roll's Abr. 815; Coke's Litt. 53; Darcy v. Askwith, Hobart's Rep. 234. But by the law of New York, as now understood, it is not waste for the tenant to erect a new edifice upon the demised premises; provided it can be done without destroying or materially injuring the buildings or other improvements already existing thereon. He has no right to pull down valuable buildings, or to make improvements or alterations which will materially and permanently change the nature of the property, so as to render it impossible for him to restore the same premises substantially, at the expiration of the term. But to apply the ancient doctrines of waste to modern tenancies, even for short terms, would, in some of our cities and villages, put an entire stop to the progress of improvement, and would deprive the tenant of those benefits which both parties contemplated at the time of the demise, without any possible advantage to the owner of the reversion. The modern cases as to the right of the tenant to remove fixtures, or even some kinds of buildings, erected for the purposes of trade or manufacture, show the change which has gradually, if not imperceptibly, taken place in the law upon this subject. And upon the principles of these modern cases, it cannot be waste to make new erections upon the demised premises which may be removed at the end of the term without much inconvenience, leaving the property in the same situation it was at the commencement of the tenancy; and the materials of which new buildings, if left on the premises, would more than compensate the owner of the reversion for the expenses of their removal. (Chancellor Walworth in Winship v. Pitts, 3 Paige's Rep. 259.)

decmed waste.

principal grounds upon which an injunction was granted What acts are against proceeding with alterations in a house, was because they tended wholly to change the nature of the property, by converting a private house into a shop for the purpose of a coachmaker's business.(a)[1]

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Waste in houses consists either in pulling down or pros- Waste in trating them, or suffering them to remain uncovered, where- houses. by the timbers become rotten, or the walls decay for want of daubing.(b) The tenant must at his peril keep the house from wasting, though there be no timber on the premises; but if the house was ruinous at the time of the lease, and fall within the term, this is not waste.(c) Lord Coke has laid down that if tenant builds a new house it is waste:(d) there are, however, several authorities to the contrary, (e) and it is probable, as it has been suggested, that he must be understood in this passage to be speaking of the lessee razing the house and building another less large.(ƒ)[2]

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[1] In the case of Douglass v. Williams, 1 John. Ch. Rep. 434, a bill for an injunction to stay waste stated that the defendants had taken a lease of a dwelling house in Pearl street, in the city of New York, for four years from the 1st of May, 1815; that the lease provided that the defendants were to lay out three hundred dollars in improvements to be approved of by the lessors; that against the consent of the lessors the defendants were converting the whole dwelling house into a store, and were prostrating partitions, and cutting through the ceilings and floors in the second and third stories, and fixing a wheel and tackle in the third story to raise heavy packages, which would be to the great and constant injury of the building, as the timbers in the third story were weak. Injunction granted.

[2] Proof of a parol agreement of the landlord, made at the time of execu ting the lease, to put the premises in repair, is not admissible. Cleves v. Willoughby, 7 Hill's Rep. 83. There is no implied warranty on the part of the lessor of a dwelling-house, that it is fit for occupation and tenantable. Ib. The defendant, in this case, offered to show that the house was altogether unfit for occupation, and wholly untenantable. "The principle," says the court, Beardsley, J., "on which this offer was made, however, cannot, I think, be maintained. There is no such implied warranty on the part of the lessor of a dwelling-house, as the offer assumes. It is quite unnecessary to look at the common law doctrine as to implied covenants and warranties, or to its modification by statute. 3 P. S. 594. That doctrine has a very limited application

What acts are In general, waste which ensues from the act of God, as lightning or tempest, is excusable,(a) but the tenant must

deemed waste.

Waste arising

from the act of God.

(a) Co. Litt. 53 a. Brooke notices a singular distinction, viz., that if strangers, enemies to the king, destroy a house, it is waste; but not if it be done by traitorous subjects.

for any purpose to a lease for years, and in every case has reference to the title, and not to the quality or condition of the property. The maxim caveat empter applies to the transfer of all property, real, personal and mixed; and the purchaser generally takes the risk of its quality and condition, unless he protects himself by an express agreement on the subject. A sale of provisions for domestic use, (Van Bracklin v. Fonda, 12 Johns. Rep. 468,) and a demise of ready furnished lodgings, (Smith v. Marrable, 1 Carr. & Marslım. 479,) may be mentioned as exceptions; for as to these, the law implies a warranty that the former are wholesome, and the latter free from nuisance." See Chit. on Contr. 449 to 452, 5th Am. ed.

A tenant cannot make repairs at the expense of his landlord unless there be a special agreement between them authorizing him. He takes the premises for better or worse, and cannot involve his landlord in expense for repairs without his consent. Munford v. Brown, 6 Cow. 475. On a demise for years, there is no implied covenant that the landlord shall repair; and, if, through default of repairs, a municipal penalty is incurred in respect of the premises, it falls upon the tenant. City of New York v. Corlies, 2 Sand. 301. The lessor's agreement to pay at the end of the term, for all buildings and improvements to be erected by the lessee, and remaining on the premises at the end of the term, does not extend to ordinary repairs. Lametti v. Anderson, 6 Cow. 302. Under a covenant to keep the premises in repair and leave them in good condition, the landlord need not wait till the expiration of the term, before suing for a breach. Schieffelin v. Carpenter, 15 Wend. 400. A covenant to pay, at the end of the term, for all the buildings and improvements that may be made on the land, is a covenant to pay for such as are on the land at the end of the term. Van Rensselaer v. Penniman, 6 Wend. 569. If the lessor and lessee covenant, the former to pay for the improvements at the expiration of the Jease, and the latter to yield up the possession on being paid for them, an agreement on the part of the lessor is implied, that the lessee may retain possession until he shall be paid for them. Ib. If the lessor and lessee agree for a valua tion of the improvements at the end of the term, by persons to be nominated by them, and the lessor refuses to appoint appraisers, the lessee cannot appoint them, but his damages are to be assessed by a jury. Holliday v. Marshall, 7 Johns. 211. A covenant in a lease, that at the expiration of the term the lessor would pay for the improvements, or that the lessee might purchase the premises at their appraised value, is not divisible, and all the sub-lessees must join to secure its benefit, or to enforce its performance. Ostrander v. Livingston, 3 Barb. Ch. 416. And the legal assignee of the original lease is a necessary party to the bill. Ib. A covenant that if the lessee should divide the premises into lots of certain dimensions, and if his lessees should erect buildings thereon of a certain description, such sub-lessees should severally have the privilege of purchasing their lots at the end of the term, does not enure to the benefit of a sub-lessee of two of such lots who erects a building of the proscribed kind partly on both, or buildings of a materially different description on each. Ib. The lessor agreed that, if the lessee built a dwelling house of

deemed waste.

repair it as soon as possible, for if he suffers the house to de- What acts are cay from remaining uncovered, it becomes waste.[3] At common law the tenant was punishable if the house was burnt by negligence or mischance, but by the 6 Ann. c. 31, it is *provided that no action is to be prosecuted against any person in whose house or chamber any fire accidentally begins.(a)[1] But under a covenant to repair, it has been deter

(a) Paradine v. Jane, Aleyn, 27. Earl of Chesterfield v. Duke of Bolton, Com.

a certain description on the premises, he would pay its value at the end of the term, to be fixed by appraisement; the tenant erected a building varying from the description, and not being a dwelling, but capable of easy conversion into one; the lessor expressed no dissatisfaction, nor determination not to accept it, until he had concurred in appointing appraisers; held, that the tenant was entitled to the value of the building for the purpose of being converted into a dwelling house. Pike v. Butler, 4 Barb. 650. A covenant to renew a lease does not, necessarily, imply that another lease is to be given, not only for the same term and rent, but also, with all the covenants contained in the former lease; such covenants, being accidental and not essential parts of the lease. Rutgers v. Hunter, 6 Johns. Ch. 215. As, where, in a building lease for twentyone years, at a certain annual rent, it was covenanted, that at the expiration of the term, the buildings erected, and improvements made by the lessee, should be valued in the manner specified in the lease; and if the lessor should not abide by and pay the amount of such valuation, he should "renew the lease, or re-demise the lot, at such rents and upon such terms as might be agreed on between the parties." At the end of the lease, the lessee refused to accept a re-demise of the lot, upon any terms, and insisted upon being paid for his buildings and improvements according to the valuation thereof, made pursuant to the covenant in the lease; and the lessor tendered a renewal of the lease, for the same term and for the same rent, but without any covenant as to the buildings, or paying for buildings and improvements; held, that the lessee was bound to accept the renewal of the former lease so tendered, or to give up all claim to be paid for buildings and improvements. Ib. The parties agreed that the buildings of the lessee should be appraised at the expiration of the lease, and that the lessor should pay the appraisal, or give a new lease for twenty years, upon such terms as the lessor might think proper, and as might be approved by the lessee; held, that a court of equity had no right to restrain the lessor's reserved power to prescribe the terms of a second lease; and that the good sense of the agreement was, that, if the lessor declined to pay the appraisement, the lessee had three months to remove the buildings. Duffield v. Whitlock, 26 Wend. 55.

[3] If a house falls in consequence of a tempest, the tenant will be excused. But where a house is uncovered by a temptest, the tenant is bound to repair it within a reasonable time, before the timbers grow rotten. 2 Roll. Ab. 820. If the banks of a river are destroyed by a sudden flood, it is not waste. It however, the banks of the river Trent are unrepaired, it is waste; because the Trent is not so violent but that the lessee, by his industry, may well enough preserve its banks. 1 Inst. 53. b. Dyer, 33. a. Moo. 69.

[1] At common law tenants (lessees) for life were not answerable for damages done by fire, whether it arose from accident or negligence. When the

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What acts are mined that the lessee is bound to rebuild a house destroyed by fire, and where, after the expiration of a written lease,

deemed waste.

Rep. 620. Bullock v. Dommit, 6 T. R. 650. Brecknock Company v. Prichard, ib. 750.

statute of Gloucester rendered tenants for life answerable for waste, without any exception, it rendered them responsible for all damages done by fire. But now, by the statute 6 Ann. c. 31, s. 6, it is enacted, "that no action, suit or process whatsoever, shall be had, maintained or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompence be made by such person for any damage suffered or occasioned thereby; any law, usage or custom to the contrary notwithstanding." By the 7th section of this statute it is provided, that nothing in this act shall defeat any contract or agreement made between landlord and tenant.

In consequence of this last clause it has been determined that where a tenant for life under a settlement covenanted to keep a house in good and sufficient repair, and the house was burnt down by accident, he was bound to rebuild it. Chesterfield v. Bolton, 2 Com. R. 626.

It is now become usual, where the intention of the parties is that the tenant shall not be liable to rebuild in case of accidental fire, to except it in the covenant to repair. Bullock v. Dommitt, 6 Term Rep. 651.

The statute of Anne here referred to, seems to have been substantially adopted in New Jersey, as follows: "No action, suit or process whatsoever, shall be had, maintained or prosecuted against any person in whose house or chamber any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby; provided that nothing in this section shall extend to defeat or make void any contract or agreement made or to be made, between landlord and tenant." Rev. St. of New Jersey, Ch. 15, p. 124.

Where the tenant is deprived of the use of the leased premises, he is discharged from any mere legal liability resulting from his lease and occupancy, such as waste. But if he has expressly covenanted or agreed to pay rent, he still remains liable, as before, to an action of covenant, or an action of debt. Padine v. Jane, 1 Rolle's Abr. 946; Alleyn, 26; Sty. 47.

Thus, if an army enter upon the land and expel the tenant, he is still bound for the rent. So, if a house is blown down or accidentally burned, although the lessee covenanted to keep the premises in repair, casualties by fire only excepted; his covenant to pay rent will bind him during the term. Monk v. Cooper, 2 Ld. Ray. 1477; Hallett v. Wylie, 3 Johns. 44; Lannott v. Sterett, 1 Harr. & J. 42; Taverner v. Dyer, 56 a; Carter v. Cummins, 1 Cha. Cas. 84. (See ch. 15, ss. 75, 77.) So where, after a destruction by fire, the lessor entered, took away certain articles, and made various uses of the property; held, the tenant was still bound for the rent. And where, after a loss by fire, a tenant brought ejectment against the landlord for the house, rebuilt where the former one stood; as a long time had elapsed after the fire, and the landlord, although not bound to rebuild, and legally entitled to the rent, had not since enforced it; it was left to the jury to consider, whether the plaintiff had not waived his right to the premises at the time of the fire, and they found for the defendant. Belfour v. Weston, 1 T. R. 310; Doe v. Sandham, ib. 710; Baker v. Holtpzafjell, 4 Taun. 45.

An upper floor of a house was occupied at a rent payable quarterly. Pend

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