Opinion by
Smith, J.,This action, between landlord and tenant, was begun by a writ of estrepement to prevent waste of the demised premises. It is an ancient common-law writ still in force in this state, under the common law and our acts of assembly, and is a proper remedy to stay or prevent present or threatened waste. Like an injunction, it may be issued by a court of common pleas or any law judge thereof, and may be dissolved or continued as the case may seem to require. It does not issue of course, but must be founded on an affidavit setting forth the character of the waste complained of, and the court or judge “ may hear the parties in a summary manner, and may dissolve the writ or make such'further order therein as may seem just and right.” As in proceedings in equity, an application for the writ may be made to the court or judge in the first instance, and the order granting it may in like manner be subsequently continued or dissolved. As in other matters involving judicial discretion, the decision is subject to review by the appellate court.
In the case before us, the writ of estrepement was regularly issued and served upon the defendant in this case, whereupon he applied for a rule to show cause why the writ should not be dissolved. At the hearing, on a motion to dissolve the writ, the defendant offered to furnish a bond to indemnify the plaintiff against damage that might be sustained by reason of the alterations complained of; but this the learned judge refused, on the ground that the rights of the parties were defined by the lease and could not be modified by this offer, saying: *87“ The only question is whether the acts threatened amount to waste.”
The principal question before the judge was whether the alterations made and threatened by the defendant were material and substantial, and of such a character as to be an injury to the freehold, or were of such a nominal or trivial charter as tenants are permitted to make in the ordinary occupancy and use of the property, as contemplated by the lease under which the premises were demised. This was a question of fact, under the evidence, for the decision of the judge who heard the case. The lease is silent on the question of alterations to the demised premises, but it is express in holding the tenant to “ keep the premises in good repair at all times during the term.” In the absence of this express covenant “ the law implies a covenant on the part of the lessee so to treat the demised premises that they may revert to the lessor unimpaired except by usual wear and tear, and uninjured by any wilful or negligent act of the lessee : ” Earle v. Arbogast, 180 Pa. 409. A tenant is bound not only to commit no waste but to make fair and tenantable repairs, necessary to prevent waste and decay of the premises ; and there is an implied duty to use the premises in an ordinary and proper manner: Long v. Fitzimmons, 1 W. & S. 530. But while a tenant is not bound to make substantial and lasting repairs he must treat the demised premises in such a manner that no injury will be done to the inheritance.
The question here is not of permissive waste but of active voluntary waste. Blackstone says : “ Whatever does a lasting" damage to the freehold, or inheritance, is waste. Therefore removing wainscot, floors, or anything once fixed to the freehold of a house, is waste.” The learned judge has by his decision found the existence of waste within the meaning of the law. The testimony indicated the impairment and weakening of a foundation cellar wall, necessary as a main support of the building ; and the removal of permanent partitions, which lessened the support of the ceiling above and altered the rooms in size and form. This is a substantial act of waste, and cannot be regarded as merely trivial in character. If these material alterations were contemplated by the parties, provision should have been made for them in the lease. The right to a return of the property in the same condition, substantially, as when *88the lease was executed, subject to ordinary wear and tear by use, remained in the landlord; the right to use it only (not alter it in form or structure, or weaken any of its supports), was for a term given to the tenant. And as the lease is the contract of the parties, both are bound by its terms, and the trial judge correctly determined their rights in accordance with its provisions.
In this case, both the lease and the law plainly define the rights of the parties. By neither is the tenant permitted to commit waste. As we have said, whether waste was committed in this case was a question of fact to be decided by the judge who heard it in the first instance. The decision was on the evidence presented by both parties, without objection to the method adopted for its determination ; and as no error appears in the proceeding, we affirm it.
The order discharging the rule is affirmed at the costs of the appellant.