
    Hilliard vs. The New York and Cleveland Gas Coal Company.
    The lessee of a room in a block, covenanted to keep the premises in good and constant repair, but if the premises were destroyed, the lease was to become void and the rent to cease. A building was thereafter erected on an adjoining vacant lot by the owners thereof — not the lessors— ■whereby the demised premises were, to a great extent, cut off from light and ventilation, and were also rendered damp and unhealthy, but were capable of being made tenantable by repairs. Held: That the lessee was not authorized to abandon the lease and refuse payment of the accruing rent.
    Error to the District Court of Cuyahoga County.
    This was a ease agreed upon and submitted without action, in the Court of Common Pleas of Cuyahoga county. Laura W. Hilliard and Mary H. Sterling claimed to recover of the New York and Cleveland Gas Coal Company the sum of $627.09, with interest, and said company resisted the claim. The facts on which the controversy depended are contained in the agreed statement, of which the following is a copy:
    “On the 1st day of April, 1876, the plaintiffs leased to the defendant two rooms of a block owned by them, by the lease hereto annexed under which defendant entered and .occupied up to about July 1, 1878. At the time the lease ■was made, there was no building on the lot tying next northerly, and the offices were lighted by windows on that side except the rear office, which in addition to a window on the northerly side, had two windows on its easterly side. In the spring of 1878, the owners of the adjoining lot on the northerly side, constructed a building, the southerly wall of which was within a foot of the northerly wall of the block which cut off the light and ventilation from that side, so that one room had neither light nor ventilation, and the other very little, for the reason that. the light from the windows on the east side were obstructed by a building within seven or eight 'feet. The plaintiffs, with the consent of the defendant and tenants occupying rooms next westerly, which would also be darkened, took a space of about twelve feet in width in part from the defendant’s front office and in part from the office adjoining, for an area which was opened up to the roof and lighted by a skylight and glass partitions put up for the purpose of affording light and ventilation to the rooms on both sides of it. During the time this was being done, the defendant occupied the rooms, but at the same time insisted that if, on- the completion of the work, the offices were not sufficiently lighted and ventilated, and a fair reduction of rent made to cover interruption and loss of part of room surrendered, they would abandon the lease. On completion of the work, April 1, 1878, the question arose with regard to the adjustment of rent on account of reducing the size of the office, and the-plaintiff consented to reduce the amount of rental which should be paid from $700 per year to $550 per year for the remainder of the term, which agreement was iu writing and signed by the agent of the plaintiffs,' and assented to by the defendant. During the quarter between April 1st and July 1st, after the use of fire in the rooms had been discontinued, it was found that the walls of the rooms were so damp that in places on the north wall of the rear office the paper became moist and mildewed, and dropped off in spots. The other walls were also damp to such an extent that the varnished surface was moist, and moisture appeared on tbe surface of oil paintings hanging on the wall. The defendant went to great expense to paper said rooms and make them habitable, and in a short time the paper had in spots on the north wall of the rear office discolored and decayed, rendering the rooms danger, ous to health in such a degree that they were pronounced by physicians an unfit place for the agent of the company, who was suffering from rheumatism, supposed to have been brought on by the damp and unhealthy condition of the rooms.
    “ The defendant notified the plaintiffs that they should abandon the lease on account of the condition of the rooms, and thereupon they did abandon and surrender said rooms, although the plaintiffs offered to try and have the walls so constructed that the dampness should be avoided. Defend-, ant had informed plaintiffs, prior to their election, that the rooms were in a condition which rendered them untenantable, yet the plaintiffs up to the time of said election had not bettered their condition, but after the defendants had notified plaintiffs of their intention to leave said offices and offered to surrender said lease, the plaintiffs offered to make said offices tenantable if they would continue, but defendants decided to stand by their election, and from the time of their abandoning possession shortly thereafter, and on 1st of July, 1878, neither occupied nor in any manner exercised any control over said offices. The plaintiffs thereupon entered upon said premises and made repairs, and afterwards, on the 1st day of March, 1879, leased the same for the sum of $425 per year for the remainder of the term of said lease, being the best lease which they could effect of the premises, but in entering on said premises, making said repairs and lease, it was mutually agreed between the plaintiffs and defendant, that the plaintiffs should not thereby discharge the defendant from any legal liability they might be under, except to discharge them to extent of rent to be received on new lease.
    “ The defendants claim to have had the right to abandon the lease on account of the premises not being tenantable, and. plaintiffs claim rent under the lease to the time of making the new lease and difference of rent for balance of time.
    “ It is agreed, that if defendants are found liable, liabilitjr for full term shall be fixed in like manner, as if same had expired, except that proper discount may be made to cover any amount to be paid before its proper maturity.”
    The lease referred to in said agreed statement, among other covenants, contains the following:
    “ An.d the said lessee doth, for itself and assigns, covenant and agree to and with said lessors, their heirs, executors, administrators and assigns.....that said premises and all plumbing therein are in good repair at the commencement of this term, and they shall be kept in good and constant repair by and at the expense of the second party, and shall be delivered up and surrendered to the first party at the expiration of the term aforesaid in as good condition and repair as the same shall be at its commencement, the natural decay and wear and loss by fire not resulting from the carelessness, willful or negligent acts of the lessee, its agents or employees, only excepted; that if said premises are destroyed, this lease shall become void and determine, and all rent thereon shall cease......The party of the first part, their heirs, executors, representatives and assigns, shall have the privilege of entering said premises at proper times to view and inspect the same.”
    The parties waived the intervention of a jury, and submitted the case to the court upon the agreed statement of facts, which was made part of proof, and filed with _ the pleadings in the case. The court found for the plaintiffs. The defendant excepted to the finding of the court, filed its motion for a new trial, which motion was overruled, the ruling excepted to, and the court rendered .judgment in favor of the plaintiffs.
    A bill of exceptions was taken, and on petition in error the district court reversed the judgment of the court of common pleas.
    
      To reverse the judgment of the district court this proceeding is prosecuted.
    
      Henderson, Kline & Tolles, for plaintiffs in error
    
      Marvin, Laird & Norton, for defendant in error.
   Dickman, J.

If the demised premises had been destroyed during the term of the lease, the lessee — the Gas Coal Company — would doubtless have been discharged from the payment of rent. It was one of the covenants in the lease itself, that it should become void and determine, and all rent thereon should cease, in the event of a destruction of the premises. And independently of the written contract between the parties, as only two rooms in the building passed to the lessee, and no interest in the land, the subject of the demise would have been extinguished by the destruction of the building, and the liability to pay rent would thereby have terminated. There would have remained nothing upon which the demise could operate. Winton v. Cornish, 5 Ohio, 477; Womak v. McQuarry, 28 Ind., 103; Kerr v. Merchant's Exchange Co., 3 Ed. Ch., 315; Graves v. Berdan, 26 N. Y., 498.

In the ease at bar, although the demised premises were not destroyed, it is contended, that they were so injured as to become unfit for occupancy, and that therefore there was no longer any obligation to pay rent to the lessors. There was no covenant by the lessors to repair, but the lessee covenanted to keep the premises in good and constant repair at its own expense, and at the expiration of the term, to surrender them to the lessors in as good condition as the same were at the commencement of the lease, the natural decay and wear and loss by fire, only excepted. It is to be presumed that the parties made their contract in contemplation of the ordinary action of the elements, and of the situation and condition of the demised premises as patent to the ordinary observer. It would naturally be expected, that a building might be erected at any time upon the adjoining vacant lot, fronting on a prominent business street, and thus cut off light and ventilation from that side. But obvious as the contingency was, the lessee did not see fit to make provision for an abatement of rent or termination of the lease, in case the owner of the vacant lot should construct a building thereon. The exclusion of light and air must have been foreseen as not improbable, and the lessee covenanted to pay rent, in full view of the existing and prospective state of things. Having thus covenanted to pay rent, except only in the event of the destruction of the premises, the lessee was bound by its agreement, notwithstanding the subsequent change in the condition of the leased premises by the erection of the adjoining building. Linn v. Ross, 10 Ohio, 412. It was well said by the court in Brown v. Curran, 53 How. Pr., 303, “Building is not necessarily a cause of damage to an adjoining owner. And tenants themselves should take notice and be prepared for such contingencies of constant occurrence, and make their arrangements accordingly.”

■ If the lessors had conveyed 'to the lessee a right to the unobstructed enjoyment of light and air over the vacant lot, for and during its term, they would have been answerable for that right in case of disturbance. But there was no such grant. And the vacant lot not belonging to the lessors at the time of leasing, it cannot be urged with any force of reason, that an easement by implication in the passage of light and air followed a demise of the premises to the lessee. It is true, as said by Judge Story in U. S. v. Appleton, 1 Sumner, 492, that “the general rule of law is, that when a house or store is conveyed by the owner thereof, everything then belonging to, and in use for, the house or store, as an incident or appurtenance, passes by the grant.” But, it was never incident or appurtenant to the lessors’ building, that the adjoining lot should always remain vacant, for the purpose of furnishing light and ventilation to the lessors’ tenants.

There is no evidence that the lessors, at the time of the demise, had any more knowledge than the lessee, of the intention of the owner of the adjoining land, to put a building thereon. It is not claimed that there was ever any act amounting to an eviction on the part of the lessors; nor are they chargeable with any wrongful act which precluded the tenant from the beneficial enjoyment of the leasehold. As a matter of fact, the leased apartments, instead of being rendered permanently unfit for occupancy by the proximity of the walls of the adjoining building, were made tenant-able by repairs, and were occupied by other tenants after their abandonment by the lessee.

Among numerous adjudged cases in the same class with the ease at bar, it was held in Johnson v. Oppenheim, 55 N. Y., 280, that the mere building upon or other improvement of the adjoining lot, by which the demised premises were rendered less commodious of occupation or less suitable to the uses of the tenant, did not affect the right of the landlord to his rent, or authorize the tenant to terminate the lease and abandon the premises. And in Hazlett v. Powell, 30 Pa. St., 293, it was held, that where a lessor demised a building in which were sundry windows opening on the ground of an adjoining owner, the erection of a party wall by such adjoining owner by which the windows were closed up, is not an eviction by the lessor, nor any defense to the payment of the accruing rent. See also Palmer v. Wetmore, 2 Sandf., 316 ; Myers v. Gemmel, 10 Barb., 537.

It is contended, however, in behalf of the defendant in error, that the lessee was released from liability to pay rent, and was authorized to surrender the possession of the premises, by virtue of the act of March 30,1868 (65 Ohio Laws, 35). That act, which is the same as section 4113 of the Revised Statutes, reads as follows :

“ That the lessee of any building which shall, without any fault or neglect on his part, be destroyed, or be so injured by the elements, or other eause, as to be unfit for occupancy, shall not be liable to pay rent to the lessor or owner thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant, and the lessee shall thereupon surrender possession of the premises so-leased.” The act is substantially a transcript of the New York statute in pari materia, and the adjudged cases in that state serve as reliable aids in its interpretation. Without determining whether the Gas Coal Company, as lessee of only two rooms instead of the entire building, would come within the classification of persons entitled to the benefit of the statute, we are of opinion, that the lessee ■was not injured to the extent, nor was its injury of the kind contemplated by the statute. The evident design of the act was, to relieve the ignorant and inadvertent who might fail to protect themselves by special provision in their lease, against the evil and mischief of the common law, which held the tenant liable for rent although the demised premises were destroyed by fire, flood, tempest or otherwise, unless he was exempt from liability by some express covenant in his lease. The destruction or injury within the purview of the statute, is not that gradual decay which results from the ordinary action of the elements nor injury resulting from the ordinary action of human agencies, which a lessee is supposed to have in view when he enters into his contract. The statute is designed rather to protect the lessee against an unexpected and unusual action of the elements or of human forces, causing a total destruction of the demised premises or an injury thereto only short of a total destruction, which the parties ignorantly or inadvertently failed to anticipate and provide against when the demise was made. In construing the New York statute, the court, in Suydam v. Jackson, 54 N. Y., 450, say, “ The statute provides for two alternatives, when the premises are ‘destroyed’ or‘injured.’ The first alternative, evidently, has reference to a sudden and total destruction by the elements, acting with unusual power, or by human agency. The latter has reference to a case of injury to the premises, short of a total destruction, occasioned in the same way. If the legislature had intended to provide that the tenant should cease to be liable for rent when the premises from any cause became so damaged or out of repair as to be untenantable, it would have been easy to have expressed the intent in apt and proper language.” The alleged damage to the apartments leased to the defendant1 in error, was such as might have been expected to result naturally and ordinarily from the construction of the building upon the adjoining vacant lot. And the structure itself must have been anticipated as one of the probabilities of the future. Its walls necessarily excluded light and air, and caused more or less dampness in the lessee’s apartments, but the consequential damage was not the same as that contemplated by the statute under consideration.

The judgment of the district court we think should be reversed, and that of the court of common pleas affirmed.

Judgment accordingly.  