Partition of house in separate tenements.

such cases cannot be compelled to sell to the company more than is necessary for their authorized undertaking (k). -In the Burial Acts, which provide that no ground shall be used for burial within the distance of one hundred yards from a dwelling-house; the word "dwelling-house" is construed strictly as a point for measuring the distance, and not as including garden or curtilage (1).

It is a general rule of construction that a conveyance of a house or building, as of land, presumptively carries with it everything vertically above and below the property described; but it may be restricted in application to the actual state of the property. The house or building may be partitioned into separate tenements; "a man may have an inheritance in an upper chamber, though the lower buildings and soil be in another" (m). The lease of a house described as in the occupation of A. was held not to include the cellar which at the time of the lease was in the separate occupation of B.; and evidence was held admissible to show the state and occupation of the premises (). In the case of two adjacent houses the rooms of which intersect, a conveyance or devise of the one will not include the intersecting rooms of the other. "The ordinary rule of law is that whoever has got the site is the owner of everything up to the sky and down to the centre of the earth. But that ordinary presumption of law is frequently rebutted by the fact that other adjoining tenements protrude themselves over the site. The question then arises whether the protrusion is a diminution of so much of the freehold, including the right upwards and downwards, as is defined horizontally by a section of the protrusion; or whether such a portion only is carved out of the freehold as is included between the ceiling of the room at the top

(k) Gard v. Commiss. of London, L. R. 28 C. D. 486; 54 L. J. C. 698.

(1) Wright y. Wallasey Board, L. R. 18 Q. B. D. 783; 56 L. J.

Q. B. 259.

(m) Co. Lit. 48 b.

(n) Doe v. Burt, 1 T. R. 701; Press v. Parker, 2 Bing. 456; Martyn v. Lawrence, 2 D. J. & S. 261.

and the floor at the bottom" (o). So a defined portion of a room may be let separately from the remaining portion, with exclusive possession; as where a portion of a room in a factory was let off, with the use of steam-power at a fixed rent, it was held to be a good demise and that the lessor might distrain goods upon the premises for rent (p). So the boxes and stalls of a theatre may be separate subjects of sale and lease (q).

owners of

The partition of a house or building into separate tene- Relative ments creates relative rights and obligations of the several rights of partowners, analogous to such as exist between the several house. owners of surface and minerals (r). The grantor of an upper room of a house, with reservation of the lower, cannot derogate from his grant by removing the underpinning or support of the room granted, any more than upon a similar reservation of mines the grantor can take the whole of the minerals and let down the surface. But in the absence of special agreement there is no obligation upon his part to repair the support; which the grantee must do for himself if necessary, and he may enter upon the lower room for that purpose (s). So, upon a grant of the lower part of a house or building reserving the upper, in the absence of express agreement, it seems there is no implied obligation to repair the roof or upper story (f). Where a house is partitioned in separate tenements, the owner or occupier of one tenement is bound to take all reasonable care in using his tenement to prevent any

(0) James, L. J. Corbett v. Hill, L. R. 9 Eq. 671; 39 L. J. C. 547.

(p) Selby v. Greaves, L. R. 3 C. P. 594; 37 L. J. C. P. 251.

(a) Flight v. Glossop, 2 Bing. N. C. 125; Leader v. Moody, L. R. 20 Eq. 145; 44 L. J. C. 711; Scott v. Howard, L. R. 6 Ap. Ca. 295. (r) Ante, p. 55.

(s) Colebeck v. Girdlers' Co., L. R. 1 Q. B. D. 234; 45 L. J. Q. B. 225; Parke, B. Harris v. Ryding, 5 M. & W. 71.

(t) 1 Wms. Saund. 322, n. (1), Pomfret v. Ricroft. By the law of Scotland "where a house is divided into different floors or stories, each floor belonging to a different owner, which frequently happens in the city of Edinburgh, the proprietor of the ground story is obliged to uphold it for the support of the upper, and the owner of the upper must uphold that as a roof or cover to the lower." Erskine's Inst., cited in Humphries v. Brogden, 12 Q. B. 756.

Liability of tenant for repair and waste of houses.

Permissive waste.

damage accruing to the other tenements, and he would be liable for the neglect of such duty; but he would not be liable for unavoidable accidents (u).

The only liability of a tenant for life or for years of houses and buildings, as regards the use and possession, in the absence of special stipulation, is the general liability for waste (v). And it seems doubtful whether a tenant for life or for years is liable at common law for mere non repair, as permissive waste (). It is said that "waste. may be done in houses by suffering the same to be uncovered, whereby the rafters or other timbers of the house are rotten" (r); but the bare suffering them to be uncovered, without rotting the timber, is not waste (y). Accordingly it has been held that a tenant from year to year is only bound to keep the house wind and water tight so far as to prevent waste and decay (≈); and that "he is not liable for the mere wear and tear of the premises," as being permissive waste (a). But in a recent case it has been held that a lease with a covenant to repair, "fair wear and tear excepted," was not in conformity with a power to grant leases, not to be made without impeachment of waste; because the exemption from repairing the wear and tear was an exemption from liability for permissive waste, for which the tenant would otherwise be liable (b).—The doctrine of equity seems not doubtful. "Whatever be the legal liability, the Court has always

(u) Carstairs v. Taylor, L. R. 6 Ex. 217; 40 L. J. Ex. 129; Ross v. Fedden, L. R. 7 Q. B. 661; 41 L. J. Q. B. 270; see Anderson v. Oppenheimer, L. R. 5 Q. B. D. 602; 49 L. J. Q. B. 456; Stevens v. Woodward, L. R. 6 Q. B. D. 318; 50 L. J. Q. B. 231.

(v) See ante, p. 18; Parke, B. Dietrichsen v. Giubelei, 14 M. & W. 850.

(w) Per cur. Harnett v. Maitland, 16 M. & W. 262; see Herne v. Benbow, 4 Taunt. 764; Woodhouse v.

declined to interfere against mere permissive waste; the Court never interposes in case of permissive waste, either to prohibit or to give satisfaction, as it does in case of wilful waste” (c). And "an equitable tenant for life cannot be called upon to repair and cannot be made liable for neglecting to repair" (d).

Repairs may be charged by the limitation of the estate; Charge of as where a house was devised upon the terms of the devisee repair. for life "keeping the same in good and tenantable repair," and during his tenancy the house was destroyed by an accidental fire, it was held "that the will created an obligation upon the tenant for life to rebuild the premises" (e). Where a devisee for life, subject to the like charge, died leaving the premises out of repair, it was held that the remainderman had a right of action for waste by non-repair against the executor, and that the measure of damages was the sum necessary to put the premises in the state of repair in which the tenant for life ought to have left them (f).-The incumbent of an ecclesiastical Incumbent of benefice was held bound at common law to repair and maintain the house and buildings, having regard to the nature of the tenancy (g). During the incumbency the patron of the benefice might bring a suit to restrain the commission of waste, and it seems he might have an account of the proceeds of waste committed (). After the retirement or death of the incumbent the successor had an action against him or his executor to recover the value of the dilapidations (i). The dilapidations of buildings

(c) Cranworth, L. C. Powys v. Blagrave, 4 D. M. & G. 458; 24 L. J. C. 145, citing Castlemain v. Craven, 22 Vin. Abr. 523; Wood v. Gaynon, Ambl. 395; see Warren v. Rudall, 1 J. & H. 1; 29 L. J. C. 543.

(d) Cotton, L. J. Re Hotchkys, L. R. 32 C. D. 418; 55 L. J. C. 549.

(e) Re Shingley, 3 Mac. & G.

221.

(f) Woodhouse v. Walker, L. R.

5 Q. B. D. 404; 49 L. J. Q. B.
609; see Batthyany v. Walford,
L. R. 33 C. D. 630.

(g) Wise v. Metcalfe, 10 B. & C.
299; Huntley v. Russell, 13 Q. B.
572.

(h) Holden v. Weekes, 1 J. & H. 278; 30 L. J. C. 35; Sowerby v. Fryer, L. R. 8 Eq. 423; 38 L. J. C. 617.

(i) Bunbury v. Hewson, 3 Ex. 558; Stirling, J. Re Monk, L. R. 35 C. D. 585.

benefice.

Tenant
"without

of waste."

of ecclesiastical benefices are now specially provided against and remedied by "The Ecclesiastical Dilapidations Act, 1871," 34 & 35 Vict. c. 43 (g).

Tenant for life "without impeachment of waste," though impeachment not chargeable at law with waste, is chargeable with equitable waste, that is, wilful and unreasonable abuse of the property. Where tenant for life under a settlement "without impeachment of waste" from motives of displeasure at his son who was tenant in remainder, began wilfully to destroy the house, the Court granted an injunction to restrain the waste and decreed that the house should be restored (h).

Waste in houses and buildings.

Property in materials.

The pulling down of houses or buildings by the tenant is primâ facie waste; so also any destruction done to a house or building or to any part of it, or to any fixture annexed to it, is primâ facie waste, for which the tenant is responsible to the lessor or reversioner. If a house or building be ruinous at the tenant's coming, it is not waste in him to suffer it to fall down, but it is waste if he pull it down, unless for the purpose of rebuilding it (i). But the pulling down of a building is not waste, if proved not to be to some material extent injurious to the inheritance (k).—If the tenant wastefully pulls down a house, the lessor, besides his action of waste, becomes entitled to the property in the materials, as being parcel of the inheritance in which the interest of the lessee is determined by the severance; as in the case of trees wastefully cut (1). But "if the house fall down by tempest, or be burnt by lightning, or prostrated by enemies, or the like, without a default of the tenant, or was ruinous at his coming in and fall down, the tenant may build the same again with such

(g) Jones v. Dangerfield, L. R. 1 C. D. 438; 45 L. J. C. 161; Kimber v. Paravicini, L. R. 15 Q. B. D. 222; 54 L. J. Q. B. 471; Re Monk, L. R. 35 C. D. 583.

(h) Vane v. Barnard, 2 Vern.

738; 1 Salk. 161; ante, p. 24.

(i) Co. Lit. 53 a; ante, p. 18. (k) Doe v. Earl of Burlington, 5 B. & Ad. 507.

(7) 4 Co. 63 a, Herlakenden's Case; ante, p. 37.