The sole defence to this action is based upon the statute (Laws of 1860, chap. 345) which provides "that the lessees or occupants of any building, which shall, without any fault or neglect on their part, be destroyed or be so injured by the elements or any other cause as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied."
The roof of the small extension, in the rear of the main building, became gradually out of repair so as to leak badly, and the sole question for us to determine is, whether the demised premises were thus "injured" within the meaning of the statute. The leaking was not caused by any sudden, unusual, or fortuitous circumstance, but seems to have been caused by gradual wear and decay. The courts below held that the case was not within the statute, and that the lessee remained liable for the rent.
To be able properly to understand this statute, it is well to see what the common law was before it was enacted, and to ascertain, if we can, the mischief it was intended to remedy. At common law the lessor was, without express covenant to that effect, under no obligation to repair, and if the demised premises became, during the term, wholly untenantable by destruction thereof by fire, flood, tempest or otherwise, the lessee still remained liable for the rent unless exempted from such liability by some express covenant in his lease. (Walton v. Waterhouse, 3 Saund., 422; Hallett v. Wylie, 3 John., 44; Graves v. Berdan, 26 N.Y., 498; 3 Kent's Com., 465.) But the lessee was under an implied covenant, from his relation to his landlord, to make what are called "tenantable repairs." Comyn, in his work on Landlord and Tenant, *Page 454 at page 188, states the implied covenant or obligation of a lessee growing out of the relation of landlord and tenant to be, "to treat the premises demised in such manner that no injury be done to the inheritance, but that the estate may revert to the lessor undeteriorated by the willful or negligent conduct of the lessee. He is bound, therefore, to keep the soil in a proper state of cultivation, to preserve the timber and to support and repair the buildings. These duties fall upon him without any express covenant on his part, and a breach of them will, in general, render him liable to be punished for waste." (To the same effect, see Taylor's Land. Ten., 163, and 1 Wn. on Real Prop., 429.) The lessee was not bound to make substantial, lasting or general repairs, but only such ordinary repairs as were necessary to prevent waste and decay of the premises. If a window in a dwelling should blow in, the tenant could not permit it to remain out and the storms to beat in and greatly injure the premises without liability for permissive waste; and if a shingle or board on the roof should blow off or become out of repair, the tenant could not permit the water, in time of rain, to flood the premises, and thus injure them, without a similar liability. He being present, a slight effort and expense on his part could save a great loss; and hence the law justly casts the burden upon him. I am not aware that it was ever claimed that it was unjust that he should bear this burden, or that any complaint was ever made of the rule of law which cast it upon him. It cannot, therefore, be presumed that the statute of 1860 was passed to shift this burden from the lessee to the lessor.
But it was considered a hard rule that the tenant who had from ignorance or inadvertence failed to protect himself by covenants in his lease, should be obliged to pay rent in cases where, from fire, flood or other fortuitous causes, the premises were destroyed or so injured as to be untenantable, and I am of opinion that it was to change this rule and cast the misfortune upon the owner of the demised premises that the law was enacted. The statute provides for two alternatives *Page 455 when the premises are "destroyed" or "injured." The first alternative, evidently, has reference to a sudden and total destruction by the elements, acting with unusual power, or by human agency. The latter has reference to a case of injury to the premises, short of a total destruction, occasioned in the same way. If the legislature had intended to provide that the tenant should cease to be liable for rent when the premises from any cause became so damaged or out of repair as to be untenantable, it would have been easy to have expressed the intent in apt and proper language. The terms "destroyed" and "injured" do not, to my mind, convey the idea of gradual deterioration from the ordinary action of the elements in producing decay, common to all human structures.
I am, therefore, of the opinion that the courts below did not err in the construction which they gave to this statute, and this conclusion is not without the support of learned judges. (Bloomer v. Merrill, 1 Daly, 485; Austin v. Field, 7 Abb. [N.S.], 291.)
The judgment must be affirmed, with costs.