The decision was made at October term 1847.
Dewey, J.The question presented upon these exceptions is as to the rights of a lessee for a term of years of the cellar and basement story of a building three stories in height above the basement, each story being occupied by separate tenants, and the whole building consumed by fire, to such an extent that it was requisite to build anew; there being, however, a brick partition under the original building, and there being, after the fire, brick walls standing around the demised premises. Subsequently, a purchaser from the lessor has rebuilt, deepening the cellar two feet, and somewhat enlarging, in one direction, the basement. The lessee of the basement insists that he holds the estate and interest in the premises demanded, during the period fixed by his lease. The defendant, on the other hand, contends that the building upon the premises, which was the subject of the lease, having been destroyed by fire, and there being no covenant, on the part of the lessor, to rebuild, the lessee himself, not having offered to rebuild or to contribute towards the expense of rebuilding, the lease as to the basement is at an end, and the lessee cannot set up any legal estate in the premises.
The counsel for the plaintiff has very fully maintained his general position, that a lease or other conveyance of a distinct portion of a dwelling-house is a conveyance of an interest in real estate ; for instance, a lease of a chamber or warehouse, as held in Sprigg v. Rawlinson, Cro. Car. 554; or rooms for lodging, as in the case of Inman v. Stamp, 1 Stark. R. 12. There may be several distinct tenements under the same roof; and they are as essentially distinct, when one is under the other, as when one is by the side of the other. Proprietors of Meeting-House in Lowell v. City of Lowell, 1 Met. 541. Cheeseborough v. Green, 10 Connect. 318. The same principle is also recognized in the case of Loring v. Bacon, 4 Mass. 575.
But the question really is, not whether trespass and *455ejectment would well lie for a lessee of a lower room in a building, the chamber over it being owned by another, if the building thus owned and occupied remained entire and adapted for use and improvement as a tenement, and no destruction by fire had occurred ; but whether such leases of distinct rooms, viz. of a chamber to one and a basement to another, carry with them any interest in real estate, beyond that connected with the enjoyment of the particular room ; and whether such "Merest does not terminate, as to the lessee, with the destruction of the building, when neither the lessor nor lessee is bound to rebuild.
It was said by Ashhurst, J. in the case of Doe v. Burt, 1 T. R. 703, that “ the construction of all deeds must be made with reference to their subject matter ; and it may be necessary to put a different construction on leases made in populous cities, from those made in the country. We know that in London different persons have several freeholds over the same spot.” The application of these remarks, in the case cited, was upon the point of rejecting, in a lease in such cases, the maxim so often quoted, cujus est solum, ejus est usque ad caelum; but they seem alike to authorize a construction of leases of lower or upper rooms, demised separately, in reference to the termination or destruction of the interest, different from that usually applied to leases of entire buildings to a single tenant.
The reason for the rule that an interest in land passes by the grant of a house, a factory, a mill, or the like, is obviously founded in the necessity of the case. The grant of the thing carries with it whatever is necessary to the enjoyment of the thing granted. The land upon which it stands passes as incident to a house or factory that is leased. But when, from other causes, the enjoyment of the grant is at an end, or the principal has failed, by reason of its .destruction, to be an object of beneficial use, it seems reasonable to hold that as the incident is no longer required to support the grant, the interest of the lessee in the same should be terminated. The case 1 am stating should be understood to be a naked grant of a *456part of a building, having different lessees holding, by like tenure, rooms above or below the other lessees. The tenants cannot all have the soil; they cannot all have the realty “usque ad caelum." Such leases, from the nature of the case, must be construed in some degree with reference to the peculiar circumstances.
The proper construction of such a lease as the present, as it seems to us, is, that the lessee’s right of occupation of the land is an interest, for the time being, defeasible by the destruction of the building by fire. We see no other practicable rule that can be reasonably applied in cases like this, and where there is no stipulation to rebuild, either on the part of landlord or tenant, but to hold that the casualty, which has destroyed the building, has also left the lessor free to rebuild upon the ruins of the former edifice. If he may rebuild, then he must, from the nature of the case, have the right to enter upon the soil, and take possession of the land ; which would be inconsistent with the rights claimed for the plaintiff, as a lessee entitled to the undisturbed possession of the ground covered by the tenement.
These views seem to be fully sustained by adjudications in courts of our sister States. Thus the case of Kerr v. Merchants Exchange Company, 3 Edw. Ch. 315, (which was a lease of certain rooms in the Exchange, the building having been destroyed by fire,) it was held that where a tenant hires rooms only, his interest ceases with the destruction of the building. McCoun, vice chancellor, in that case, says, “ the leases are not to be considered as leases of land, but only of apartments in the building distinct from the land on which it was erected. Leases must be construed according to the intention of the parties, and with reference to the subject matter. I have no difficulty in construing the lease in question as passing no interest in the land; and I think it follows that, with the destruction of the premises which were demised, namely, the apartments in the building, the lease itself, and all right and interest under it, terminated.”
The case of Winton v. Cornish, 5 Ohio, 477, is perhaps a *457stronger case upon this point. The lease there was of “ the store room and cellar thereunder in the north east corner of Sycamore and Front Streets in Cincinnati,” for the term of three years. The building, which was of several stories in height, was destroyed by fire during the first year, but the lessee made-such repairs, by way of covering the place over the store room and cellar, as to continue to occupy about the space of the room leased, and not greater nor higher in the ceiling. The lessor claimed the right to enter to rebuild, and contended that the fire destroyed the room and cellar, and left no interest in the lessee, under the lease. The court held, that by the grant of the whole house the land might pass; but that, by a lease of a part, or a single story, it does not pass ; and that what passes must depend upon the intention of the parties, to be collected from the lease ; and that a lease of a cellar and lower room in a building of several stories gives the lessee no interest in the land; and that if the whole building is destroyed by fire, all the interest of the lessee is gone. This decision carries the principle very far, perhaps it may be thought too far by some, inasmuch as the lessee had made such repairs as enabled him to occupy the premises leased to him.
The case we have before us presents the right of the lessee much less favorably for the continuance of his interest, than the case of Winton v. Cornish. Here the plaintiff virtually abandoned, and forbore to make any temporary repairs to render the room adapted to use ; while, in the other case, the lessee always insisted upon his right to occupy, and made repairs above his rooms, to render them tenantable. Without deciding any principle beyond that required by the case directly before us, the court are of opinion that the present plaintiff had no such interest in the demanded premises, as will entitle him to recover possession against the lessor or one who has rebuilt under the lessor’s authority and with his title.
The counsel for the plaintiff have urged upon our consideration the well settled doctrine of the English courts, as well a% *458of our own, that upon a lease for years with a covenant to pay a stipulated annual rent, the rent is payable by the lessee, to the end of his term, although the property be destroyed by fire. We do not think that it necessarily results from that course of decisions, that in a case like the present, the interest in the land may not be defeated by the destruction of the building before the expiration of the term, or that the lessor will not discharge all claims upon his lessee for rent, after the lessor shall eater and take possession for rebuilding. Whether for a payment of rent, made in advance, the lessee will, in the case of such entry by the lessor to rebuild, be entitled to recover back any portion of the rent paid in advance for the period subsequent to the destruction of the building, is a question not now before us.
The questions as to the form of the action, &c. discussed in the argument for the defendant, it has become unnecessary to consider, as the defence is well maintained upon the broader ground we have already stated.
New trial granted.