The plaintiff rented or leased from the defendant the ground-floor rooms, of a two-story building. Water pipes ran through the building for the purpose of conveying water to and from a closet or lavatory located in the rear end of the building on the second floor. One or more of the pipes burst, and as a consequence plaintiff’s goods, located in the rented rooms below, were flooded and damaged; hence this suit against the landlord. The doctrine seems to be well established, upon reason and authority, that a tenant takes leased premises in the condition in which they happen to be when leased, and that the landlord is not liable to the tenant for injuries resulting from the unsafe condition 'of the premises, unless he has contracted to repair or has misrepresented the premises; and this is true, whether the tenant rent the whole, or only a part, of the premises.
In Cowen v. Sunderland, 145 Mass. 363, 14 N. E. 117, I Am. St. Rep. 469, the Supreme Court of Massachusetts, after stating the rule substantially as we have stated it *333above, acids: “There is an exception to this general rule, arising from the duty which the lessor owes the lessee. This duty does not spring directly from the contract, bnt from the relation of the parties, and it is imposed by law. When there are concealed defects, attended with damage to an occupant, and which a careful examination would not discover, known to the lessor, the latter is bound to reveal them, in order that the lessee may guard against them. While the failure to reveal such facts may not be actual fraud or misrepresentation, it is such negligence as may lay the foundation of an action against the lessor, if injury occurs.” The Supreme Court of Missouri, in Ward v. Fagin, 101 Mo. 669, 11 S. W. 738, 10 L. R. A. 147, 20 Am. St. Rep. 650, makes this succinct statement of the rule of liability of the landlord or lessor: “Aside from an express covenant to that effect, the landlord is not bound to keep the leased premises in repair, nor is he responsible in damages to his tenant for injuries resulting to the latter from the non-repair of the leased premises. In the absence of contractual obligation, the landlord, as regards his tenant, is only liable for acts of misfeasance, but not of non-feasance.” — Hamilton v. Feary, 8 Ind. App. 615, 35 N. E. 48, 52 Am. St. Rep. 485, 492. The decisions of the New York courts are to the same effect. Thus in Franklin v. Brown, 118 N. Y. 110, 23 N. E. 126, 6 L. R. A. 770, 16 Am. St. Rep. 744, 746, it is said: “It is uniformly held in this state that the lessee of real property must run the risk of its condition, unless he has an express agreement with lessor covering that subject. The tenant hires at his peril, and a rule similar to that of ‘caveat emptor’ applies, and throws on the lessee the responsibility of examining as to the existence of defects in the. premises, and of avoiding against their ill effects.” Again in O’Brien v. Capwell, 59 Barb. (N. Y.) 504, it was said: *334“As between landlord and tenant, where there is no fraud, false representations, or deceit, and in the absence of an express warranty or covenant to repair, there is no implied covenant that the demised premises are suitable or fit for occupation, or for the particular use which the tenant intends to make of them, or that they are in a safe condition for use.” — Murray v. Albertson, 50 N. J. Law, 167, 13 Atl. 394, 7 Am. St. Rep. 787; Jones v. Millsaps, 71 Miss. 10, 14 South. 440, 23 L. R. A. 155. Authorities to the same effect, from other jurisdictions, could be cited ad infinitum.
Rut we come to the decisions of our own court. — Burks v. Bragg, 89 Ala. 204, 7 South. 156, was an action against a tenant for rent due. The defendant, pleaded set-off and recoupment, claiming damages on account of injury to liis goods, during the lease term, caused by defects in the roof and gutters of the rented house, and plaintiff's failure to make repairs. Speaking to the substantive law of the case, this court said: “No duty devolved upon the landlord to make any repairs on the premises, unless there was an agreement to make them. The tenant would take the storehouse at his own risk, as to fitness for habitation or use, whatever its condition may have been at the time.” The same principle is enunciated in Bullock, etc., Co. v. Coleman, 136 Ala. 610, 613, 33 South. 884. The case of Buckley v. Cunningham, 103 Ala. 449, 15 South. 826, 49 Am. St. Rep. 42, was an action by a tenant against his landlord to recover damages resulting from the bursting of a water pipe. The upper story of the building was unoccupied, and was under the exclusive control of the landlord. The negligence averred was “that the defendant negligently failed to provide a shut-off for said water pipe, so that the water in said pipe could be shut off.” The defenses were not guilty, and contributory negligence. After deciding that there *335vas no evidence to show that defendant’s fault, if such it was, proximately contributed to plaintiff’s injury, the court, speaking through Ooleman, J., said: “Moreover, Ave are of opinion that every man has a perfect right, in the matter of Avater pipes or other conveniences, to construct his own buildings according to his oAvn preference, either AAdth or AAdthout them. There being no latent defects, or fraud or concealment, a tenant takes a building as it is, regulating the price according to the value, increased or diminished by its condition and cónAreniences. If the building or room has a Avater pipe through it, and there is no stop or Avaste. cock, the tenant knows it when he rents the building, fixes its rental value accordingly, and, uuless it is provided otherwise by contract, he assumes the risk incident to its condition.” Several authorities are cited to support the proposition, amongst them being the case of Cowen v. Sunderland, from AAdiich Ave Imre quoted above.
In the light of the principles above adverted to, Ave experience no difficulty in reaching the conclusion that the demurrer to original counts 1, 2, and 3. Avas properly sustained. Each of the counts fails to show any covenant to make repairs, or agreement in respect to the condition of the building. Nor is misfeasance on the part of the landlord.alleged; the gravaman of the counts being negligence of the landlord, in that the Avater pipes were defective and unsound. Neither of them shoAvs a breach of any duty OAving by the defendant to the plaintiff. '
The record contains three separate amendments to the complaint, filed on January 3,190fi. The first of the amendments appears on page 4 of the record, and is an amendment only to count 1. If the amendment makes any material change in count 1, it. does not appear from *336the count as amended, except, by the conclusion of the pleader, that defendant owed plaintiff any duty.
The amendment which appears on page 5 of the record purports to amend count 2. If this amendment makes any material change in the count, still the averments which have been heretofore condemned as insufficient are left in the count. Furthermore, the averments ai’e scarcely sufficient to show duty on the part of the defendant to repair. For aught that appears on the face of the count .after the amendxnent, the pipes were defective at the time the coixtract of rexxtal was made, and the plaintiff knew it, or made no effort to ascertain the condition of the premises. — Anderson v. Oppenheimer, L. R. 5 Q. B. Div. 602, 49 L. J. Q. B. 708. Moreover, “ charge and control,” as these words are used in the count, may refer only to the time the plaintiff rented from the defendant. The count is susceptible of this construction, and it must be adopted as against the pleader. In this view it fails to show any duty.
’ The third amendment is on page 6 of the record, and purports to be an additional count, designated count 4. Granting that this couxxt is good in all other respects, it proceeds upon the theory of failux*e to keep in x’epair a portion of the bxxilding not rented to the defendant. In other words, negligence is the gravamen of the count, and the negligexxce averred is in the use of weak and defective pipes. To put the lessor in default in this respect, pretermitting all other considerations, it is necessary to aver knowledge or notice on her part of such defect. This the count fails to do, and it was therefore open to the sixth ground of the demurrer.
The fifth count of the coxnplaint is subject to the saxxxe criticism. — Angevine v. Knox-Goodrich (Cal.) 31 Pac. 529, 18 L. R. A. 264; Thompson v. Clemens, 96 Md. 196, *33753 Atl. 919, 60 L. R. A. 580; Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471.
It is only necessary, in disposing of connt 7, to say it is rendered unintelligible by its reference to count 1. It may be that count 1 was inadvertently inserted, instead of count 5; but we have no authority to change the plain writing and language of the record and must treat it as we find it.
Count 6 is an attempt to fasten liability upon the defendant by the application to the owner, occupant, or person in control of the upper story of the building of the maxim, “Sic utere tuo ut alienum non hedías.” While from the language of the count it may not be clear what the relationship existing between plaintiff and defendant ivas, whether that of tenant and landlord, or of distinct ownership, yet, in the application of the maxim, this is deemed immaterial. — 2 Wait’s Actions & Def. 745; Krueger v. Ferrant, 29 Minn. 385, 13 N. W. 158, 43 Am. Rep. 223, 225. “This maxim restrains a man from using his own to the prejudice of his neighbor, but is not usually applicable to a mere omission to act, bnt rather to some affirmative act or course of conduct which amounts to or results in an invasion of another’s rights.” — Kruger v. Ferrant, supra, and cases there cited. It is clear that the count claims nothing, and makes no allegation, in respect to affirmative conduct on the part of the defendant. It simply avers notice of the defective condition of the pipes, and omission to repair same before they burst. It does not present a case of maintenance of a nuisance and consequent injuries to defendant’s neighbor. So far as the averments go, the pipes when placed in the building, Avere perfectly sound and reasonably suitable for the purposes to which they were put; and though they had become defective, and the defendant had had notice, still the count does not show *338notice of the defects in time to enable defendant, before the breakage occurred, to make the necessary repairs.
If the relation of the parties (in respect to the part of the premises occupied by the plaintiff) should be construed as being that of landlord and- tenant, there is in the count no averment of any covenant or agreement on the part of the landlord to make repairs; and we have seen that there is no Implied agreement to make repairs, nor that the premises are or will be suitable for the tenant’s use or business. It is plaintiff’s theory, however, that Avhere the landlord leases only a part of the premises, and retains the remainder under his control, he is liable to the tenant for damages which may flow from failure to repair. This principle was recognized and enforced in the case of Toole v. Beckett, 67 Me. 544, 24 Am. Rep. 54. That decision has been adversely criticised by more than one court of final resort, and its fallacies have been pointed out. In Jones v. Millsaps, 71 Miss. 10, 14 South. 440, 23 L. R. A. 155, 158, the Supreme Court of Missisippi, criticising Toole v. Beckett, said: “The decision and its reasoning are not satisfactory, and the vice of the opinion is that it confounds the passivity of the landlord with affirmative action on his part amounting to negligence.” Other decisions which were relied upon as supporting or following Toole v. Beckett were referred to by the court and it was pointed out that they distinguished themselves from that case, in that they presented cases of negligence in affirmative action on the part of the landlord. It was then said by the Mississippi court: “If the weight of authority is controlling, it will be ascertained, an examination, that the current is against liability of the landlord.” Many cases are cited by the court. The Supreme Court of Minnesota, in the case of Krueger v. Ferrant, repudiated the theory of the plaintiff now under consideration, and declined to fol*339low Toole v. Beckett, supra.—29 Minn. 385, 13 N. W. 158, 43 Am. Rep. 223; Ward v. Fagin, 101 Mo. 669, 14 S. W. 738, 10 L. R. A. 147, 20 Am. St. Rep. 650, 654.
It seems,upon reason and tlie weight of authority, that in the absence of a covenant to repair, or of fraud or deceit, the lessor can he made liable for damages on account of defects only in cases of misfeasance, or of active interference on his part, or where he maintains a. nuisance on the premises, and that no liability attaches for mere non-interference, even though the landlord remain in the occupancy of a part of the premises. The. demurrer to the sixth count was properly sustained. —Authorities supra; Buckley v. Cunningham, 103 Ala. 449, 453, 15 South. 826, 49 Am. St. Rep. 42; Doupe v. Genin, 45 N. Y. 119, 6 Am. Rep. 47; Ward v. Fagin, 101 Mo. 669, 14 S. W. 738, 10 L. R. A. 147, 20 Am. St. Rep. 650, 653; 6 Am. Law. Review, 614;Purcell v. English, 86 Ind. 34, 44 Am. Rep. 225.
Chief Justice TYSON and Justice ANDERSON concur in the opinion and conclusions, while Justices DOW-DELL, S'IMPSON, McCLELLAN, and MAYFIELD concur therein, save as to the sixth count of the complaint, entertaining the opinion that this count is not subject to the demurrer, and that the court committed reversible error in sustaining the demurrer thereto. Therefore, in accordance with the views of the majority, the judgment of the trial court, for the error committed in sustaining the demurrer to the sixth count, must be reversed, and the cause remanded.Reversed and remanded.