I am of the opinion that the plaintiff was entitled, in any event, to recover the value of the reasonable use and occupation of the premises from the time of the fire to his removal therefrom. The statute prescribes that, in case a building is so injured by the elements, or other cause, as to become untenantable, the lessee or occupant shall not be liable or bound to pay rent therefor after such injury, and he may quit and surrender possession of the premises. When such an injury occurs to the demised premises, if the tenant wishes to avoid his covenant to pay rent, he must abandon his occupancy. I concede that he may have a reasonable time to remove his property, but the time occupied must be solely for the purpose of removal. I know of no principle which allows, one man to remain in occupation of another man’s land for the convenience of .adjusting with the fire insurance company the amount of his loss, or in pursuance of any directions of the fire marshal. The defendant’s testimony is that it was for such purpose he remained in possession. That occupation was for his own convenience and he must pay for it, not necessarily the rent reserved, for the lease had terminated, but the fair and reasonable value of the use and occupation. . The trial court, therefore, erred in refusing to charge the plaintiff’s first request.
Judgment and order affirmed, with costs.