On Motion for Rehearing.
Complying with a request therefor by appellee, following are facts additional to those shown in the opinion of this court on original hearing:
The lease from Charbonneau to Ellison was duly acknowledged and filed for record in the deed records of Tarrant county on November 24, 1930; at the time Charbon-neau executed to the county the right of way to the property owned by him, which included the 18-foot strip in controversy, Ellison was in open adverse possession of that strip, holding the same under a fence. At the time Charbonneau signed the right of way deed in question to the county, with a stipulation therein of warranty of title to the right of way so conveyed, he orally informed Stevens, the county engineer in charge of the improvement of the road, of" the existence of Ellison’s lease and that the county would have to deal with Ellison in regard to it. Before the county took possession of the 18-foot strip of Ellison’s lease in controversy, Stevens made an unsuccessful effort to induce Ellison to accept from Charbonneau another strip in lieu of that 18’ foot strip. Charbonneau took no part in the act of the county in actually tearing down Ellison’s fence with his advertising signs thereon and constituting a part of the inclosure of the 18-foot strip; that fence was torn down by the county and possession taken of the 18-foot strip during the month of October, 1933, and Ellison’s advertising signs on the remaining portion of the lease were not removed until *316about April or May of the following year. However, in connection with this finding, we will add that before Ellison was evicted from the 18-foot strip, he notified Char-bonneau of his intention to abandon the entire lease by reason of the taking of that strip by the county. We will further add that no condemnation proceedings were ever instituted by the county against Ellison for the 18-foot strip in controversy. And that strip was taken by the county without compensation to Ellison and as a part of a long-distance strip owned by Charbonneau and others abutting on the highway, all as contemplated by the preliminary agreement of those owners with the county to donate the same without cost to the county, in consideration of the agreement of the county to widen the highway so as to include that strip, and which agreement was duly performed by the county. The 18-foot strip was a substantial and valuable part of the land leased by Char-bonneau to Ellison.
Plaintiffs suit was to recover the full amount stipulated in Ellison’s contract with no abatement of that amount by reason of Ellison’s loss of his lease on the 18-foot strip.
The defendant pleaded the eviction of Ellison from the 18-foót strip by the county, with authority and approval by Charbon-neau, evidenced by Charbonneau’s preliminary written agreement to deed the same to the county, and his deed thereto thereafter made with the covenant that he would warrant and forever defend title thereto to the county and its successors “against every person whomsoever lawfully claiming, or to claim the same, or any part thereof.”
In his supplemental petition filed in reply to defendant’s answer, Charbonneau did not seek a recovery of rent on the remainder of the lease not so taken, on the basis of a pro rata adjustment of the amount after such taking, nor for any recovery on a plea of quantum meruit for the value of the rental on the remaining portion of the lease, nor any plea of^waiver growing out of Ellison’s continued use of the remaining' portion of the lease after he was evicted from the 18-foot strip.
Both in his original brief and in his motion for rehearing, the eviction of Ellison by the county from the 18-foot strip in controversy is conceded by Charbonneau. But appellee earnestly insists that this court erred in holding that the eviction was legally chargeable to the plaintiff Charbon-neau as a defense to his suit to recover the full contract price of the rental stipulated in his contract with Ellison. It is contended that that was a controverted issue under the facts and that this court erred in failing to remand the case for a determination of it before a jury.
We quote from the following authorities :
“An implied covenant, or an expressed covenant in the usual form for quiet enjoyment, is generally interpreted to secure the lessee against the acts or hindrances of the lessor and persons deriving their right or title through him.” 36 C.J. p. 76.
“The wrongful eviction of the tenant by the landlord or one standing in his right constitutes a breach of the covenant for quiet enjoyment.” Id. p. 78.
“An eviction from part of the premises, is a breach of the covenant.” Id. p. 80.
“The tenant’s liability to pay rent may be suspended or terminated because of an eviction from the demised premises during the term, either actual or constructive, effected by the landlord directly, or indirectly through his agency.” Id. p. 311.
“According to the general rule, an eviction of the tenant from a portion of the demised premises, by the landlord, or by his authority, operates as a suspension of the entire rent until the premises are restored to the tenant, although he remains in possession of the remainder of the premises-demised.” Id. p. 315.
“Partial eviction from the premises demised by act of the lessor will relieve the tenant from liability to pay rent upon any portion of the premises during the continuance of the eviction.” Citing authorities. 17 L.R.A. 275.
“The landlord cannot ‘so apportion his wrong as to enforce the lessee to pay anything for the residue.’ ” 17 L.R.A. 276.
The following decisions are in accord with those announcements: Edmison v. Lowry, 3 S.D. 77, 52 N.W. 583, 17 L.R.A. 275, 44 Am.St.Rep. 774; Smith v. McEnany, 170 Mass. 26, 48 N.E. 781, 64 Am.St. Rep. 272; Morris v. Kettle, 57 N.J.Law, 218, 30 A. 879, by the Supreme Court of New Jersey.
In Sherman v. Williams, 113 Mass. 481, 18 Am.Rep. 522, it was held that the erection by a third party of a party wall under the eaves of a leased building, with the *317consent of the IsBfdlord, injuring said building, was a bread® of the covenant for quiet enjoyment. ’
Collins v. Lewis, 53 Minn. 78, 54 N.W. 1056, 1057, 19 L.R.A. 822, was a suit for rent by a landlord. The defendant, the renter, pleaded in defense an eviction from the leased premises by reason of a written agreement of the landlord with Mann-heimer, the owner of an adjoining lot, by the terms of which Mannheimer was given the right to excavate upon the east line of the lot held by the tenant to the width of 8 feet, and to the depth of 14 feet, the wall to be so erected by Mannheimer was to become a party wall. It was also agreed' between the two property owners that in putting in the foundation for his building, Mannheimer should not injure or interfere with any .building or structure then on the leased lot, nor with the use of the surface of the lot by the tenant, and that Mannheimer should provide secure and substantial support for the building on the leased lot, including the one occupied by the defendant, so that the same should not be injured or damaged by the construction work, and further, that in case of any injury or damage, the same should be paid for by Mannheimer. The trial court overruled defendant’s plea of eviction. On appeal counsel for the landlord contended that the trespass was that of Mannheimer and his agent and not that of the landlord; that it was not the purpose or effect of the agreement of the adjoining owners to authorize Mannheimer to commit any unlawful act, particularly because the tenant’s right of possession was expressly recognized in the agreement. In disposing of the appeal, the Supreme Court of Minnesota had this to say:
“By the execution and delivery of the agreement, Mr. Mannheimer was authorized and empowered by the owner of the fee to enter upon and remove a portion of a lot which the latter had previously leased to the defendant for a term of years, and of which defendant, as tenant, held peaceable possession. * * * According to the answer the removal of the soil from about one sixth of the surface of the premises seriously damaged each of these buildings, rendering them unsafe and insecure, and resulted in other damage to the tenant. This result the landlord had so far anticipated as to undertake to protect himself by providing in the agreement for his own indemnity from pecuniary loss should his tenant be injured. It is difficult to understand how the landlord can authorize the performance of the acts provided for in the agreement without fully realizing that a trespass was to be committed, and his tenant’s right to quietly enjoy the premises invaded, unless his consent to the excavation was first obtained. In fact this invasion was expressly sanctioned, aided, and abetted by the agreement, and without its execution it is safe to say would not have occurred. Taking the agreement in connection with the positive assertion found in the answer, that the acts of Mann-heimer and his agents were committed under plaintiff’s direction, it is obvious that under a claim of title the landlord has interfered with the tenant’s possession of demised premises, and has prevented him from having the use and enjoyment of a part thereof. This amounted to a breach of the covenant for quiet enjoyment, and when such.a condition exists, and an action is brought to recover for rent subsequently falling due, the tenant may counterclaim and recover his damages. * * *
“The landlord cannot be permitted to excuse and avoid the consequences, the almost inevitable result of his own acts, by showing that the party with whom he has contracted, and has authorized to perform the acts complained of, has agreed to perform so that no injury could result.”
The case of Weinman v. De Palma, 232 U.S. 571, 34 S.Ct. 370, 371, 58 L.Ed. 733, was a suit by a tenant against a landlord for damages for breach of his covenant for quiet enjoyment of certain leased premises. The facts show that Weinman leased to De Palma a house and lot for a period of two years and De Palma occupied the property as a retail druggist. During the leased term, Weinman, the landlord, entered into an agreement with one-Barnett, the owner of the adjoining lot, giving to Barnett lease to construct a party wall, with permission to take down any part of the east wall of the leased building for that purpose. Barnett employed a general contractor to do the work and while taking-down a part of the wall on the leased building, the same fell. De Palma then removed to another location and instituted suit to recover of the landlord damages he suffered as the result of the work so done. The case finally reached the United States Supreme Court from the Supreme Court of New Mexico, and we quote the following from the opinion: “We agree with the supreme court of New Mexico that where the owner of demised premises makes a con*318tract with an adjoining owner for the construction of a party wall, which contract cannot be carried out according to its terms without entry upon the demised premises and an undermining of the tenant’s wall, and the adjoining owner or his servants, in the performance of the contract, do commit such a trespass upon the tenant’s possession and undermine the wall, the contract is evidential of a command or approval of the trespass by the landlord, such as to render him liable severally, or jointly with the adjoining owner, in an action by the tenant for the resulting- damages.”
The case of Kuschinsky v. Flanigan, 170 Mich. 245, 136 N.W. 362, 363, 41 L.R.A. (N.S.) 430, Ann.Cas.1914A, 1228, was a suit by a landlord for rent, which was resisted by 'the tenant on the ground that as a result of work done by the landlord in remodeling his adjoining property, the tenant’s back yard was filled with material and rubbish, by reason of which the tenant had been deprived of the beneficial use and enjoyment of that portion of the premises. We quote the following from that opinion:
“The rule of law applicable to an action lo recover rent, where partial eviction has taken place, is stated as follows: ‘The rule established by the great weight of authority is that an eviction of the tenant by the landlord from a part only of the demised premises works a suspension of the entire rent, though the tenant remains in possession of the balance of the premises demised. The rent in such a case will not be apportioned with regard to the value of the portion from which the tenant was evicted; nor can the landlord recover for the use and occupation of the portion of which the tenant retains possession.’ [Citing authorities.]
“The rule is tersely stated in Royce v. Guggenheim, 106 Mass. 201, 8 Am.Rep. 322, by Mr. Justice Gray, where a similar case was considered: ‘The eviction of a tenant from the demised premises, either by the landlord or by title paramount, is a bar to any demand for rent, because it deprives him of the whole consideration for which rent was to be' paid. [Citing cases.] And his eviction by the landlord from part of the premises suspends the entire rent, because the landlord ‘shall not so apportion his own wrong as to enforce the lessee to pay anything for the residue.’ ” Citing authorities.
In the case of Thomas Cusack Co. v. Pratt, 78 Colo. 28, 239 P. 22, 24, 44 A.L.R. 55, it appeared that a landlord executed a lease which gave the tenaS a right to erect a large advertising sign <W the roof of his garage. Later, the owner of the property erected a filling station on another part of the lot, so located as to partially obstruct the view of the sign. The tenant then took down the sign and refused to pay further rent. The landlord then- brought suit to recover the rent, which resulted in a judgment in his favor, but the Supreme Court of Colorado reversed that judgment, saying:
“The general doctrine in such cases is that an actual or physical expulsion of the tenant is not necessary to constitute a breach of covenant for quiet enjoyment. Eviction may be actual or constructive, and any act of the lessor by which his tenant is deprived of the enjoyment of the whole or a material or substantial part of the demised premises, or which shows an intent on the lessor’s part permanently to deprive or seriously to obstruct dr interfere with the tenant’s quiet or peaceful enjoyment, amounts in law to an eviction. [Citing authority.]
“In Graham v. Anderson, 3 Har. (Del.) 364, the court said that eviction of a part would be an eviction of the whole premises. As applied to the case in hand, a substantial partial obstruction of the view would be a violation of the implied covenant of this lease. * * *
“We repeat that the tenant had the right to the continuance of the same conditions, so far as the view is concerned, and so far as concerns defendant’s subsequent use of the premises, that existed at the time the lease was made. The lessor plaintiff cannot, by-building upon the same lots a filling-station, obstruct the view and collect the rent at the same time. The defendant was justified in treating the acts of the plaintiff as an eviction and in vacating the premises and in refusing to pay the rent.”
The facts chiefly relied upon and stressed by appellee in support of his contention that the eviction of Ellison from the 18-foot strip was not chargeable to Char-bonneau, are the following: The oral information given by Charbonneau -to Stevens at the time he executed the right of way deed to the county that Ellison held a lease on the 18-foot strip; the fact that Ellison 'was then in adverse possession of that strip under a duly recorded lease, and the further fact that Charbonneau did not participate with the . county in actually tearing down Ellison’s fence.
*319However, we believe that the other'un-controverted facts recited above and in our original opinion and not necessary to be repeated, show conclusively that the eviction was authorized, sanctioned, and intended by Charbonneau, and therefore he is legally chargeable with its consequences as a matter of’law; and those facts being undisputed, the issue could not properly be submitted to a jury.
Motion for rehearing is overruled.