delivered the opinion of the court.
The contention of appellee is that he was evicted from the two rooms mentioned in the preceding statement by appellant, his landlord, and, consequently, that there can be no recovery for rent subsequent to the eviction. In Kistler v. Wilson, 77 Ill. App. 149, the court, citing cases decided by the Supreme Court, say: “The act of the landlord, to constitute an eviction, must be of a grave and permanent character, and done Tor the purpose and with the intention of depriving the tenant of the enjoyment of the demised premises.’ ” In Morris v. Tillson, 81 Ill. 607, 623, it is said: “The rule laid down in Hayner et al. v. Smith and wife, 63 Ill. 430, and followed in Lynch v. Baldwin, 69 Ill. 210, and Walker et al v. Tucker, 70 id. 528, is, that the acts by the landlord, in interference with the tenant’s possession, to constitute an eviction, must clearly indicate an intention on the part of the landlord that the tenant shall no longer continue to hold the premises.”
It clearly appears from the evidence in this case that appellant did not intend to deprive appellee of the enjoyment of the demised premises, or any part thereof; that, on the contrary, his sole intention was to comply with his legal duty, on receiving notice from the city, to erect fire escapes at the building, and that he did nothing more in the premises than he was required by law to do. Appellant, as the owner of the premises, was bound by the statute to provide fire escapes for the building on notice from the city so to do, and appellee himself might have been compelled so to do. Hurd’s Rev. Stat. 1903, C. 55a, p. 983, Sections 1 to 3. See, also, Arms v. Ayer, 192 Ill. 601, construing a similar statute. The placing of the short flight of stairs in each of the rooms in question was necessary to give access to the window, and, by the window, to the fire escape. The contrary is not claimed by appellee’s counsel.
In City of Chicago v. Grarrity, 7 Ill. App., 474, it appeared that part of certain premises owned by Grarrity, but demised by him to one Cudney, was proposed to be taken by the city of Chicago for the widening of State street in the city, and, on a proceeding to ascertain the compensation to be paid by the city for such part of the demised premises and other property to be taken for the purpose mentioned, the trial court, at the instance of Grarrity, who claimed that the whole compensation for the part of the demised premises to be taken should go to him, instructed the jury that Cudney, the tenant, would be released from the payment of all rent when the city should take possession of the part of the demised premises condemned. The city appealed, and the Appellate Court affirmed the judgment of the trial court; but, on rehearing, reversed that judgment, and held, citing numerous cases, that the condemnatidn proceedings did not operate to extinguish the lease, in whole or in part, and that the liability of the tenant, Cudney, to pay the entire rent, continued. The case is cited with approval in Stubbings v. Village of Evanston, 136 Ill. 37, 42, in which latter case the same doctrine is announced, the court saying: “Wash-burn (1 Real Prop., p. 342), in speaking on this subject, says: 'It has sometimes been attempted to .apply the principle of eviction from a part of the premises, where lands under lease have been appropriated to public use under the exercise of eminent domain. * * * But the better rule, and one believed to be adopted in most of the states, is that such a taking operates, so far as the lessee is concerned, upon his interest as property, for which the public are to make him •compensation, and does not affect his liability to pay rent for the entire estate, according to the terms of his lease— and this extends to ground rent. Such taking does not abate any part of the rent due.’ ”
In this case the erection of the fire escapes and the creation of necessary access thereto, were for a public purpose, namely, the protection of life against fire, and were acts-done in obedience to law, and which appellee, at the time-he took a lease of the premises, might reasonably have anticipated.
In Fleming & Bowles v. King, 100 Ga., 449, a building on the demised premises had been partly destroyed by fire, and the landlord, by order of the fire wardens of the city, enclosed the premises and pulled down the walls of the building. Held, that the acts of the landlord having been by reason of the order of the fire wardens, and for the public safety, there was no eviction.
Appellee was not released from the payment of any part of the reserved-rent by the acts in question. It is proved and admitted that appellee did not pay any rent for the months of August, September and October, 1903. The total rent, for said months is, by the terms of the lease, $165. It was further admitted by appellee’s attorney, on the trial, that appellee owed a certain amount of rent, but not as much as $165. It having been proved and admitted that appellee paid no rent for three months of the term, if appellee claimed any offset against or deduction from the sum reserved by the lease for the three months, it was incumbent on him to prove such claim, which he wholly failed to do. We do not find in the record any valid defense to appellant’s claim for rent., The judgment will he reversed and judgment will be entered here in favor of Frank W. Cassard, appellant, and against Charles Thornton, appellee, for the sum of $165, appellant to recover his costs in this court and in the Circuit Court.
Reversed and judgment here.