732.

PUBLIC HEALTH ACT, 1875, SECTION 91-OLD HOUSE-INSERTION OF DAMP COURSE AND CONCRETE BASEMENT.

A house built about 40 years ago, and situated in an urban district council district in Middlesex, has no damp course in the walls, and the site is not covered with impervious materials, but was apparently covered with a depth of burnt ballast over the clay on which the house stands. In course of time the burnt ballast has become damp and clay-like and in parts has disappeared, leaving damp clay within one foot of the floor boards. In consequence the basement and walls are very damp and the floor rotten, causing a close damp smell.

The owner is a mortgagee in possession, having a term of about 60 years of the head lease unexpired. The tenant holds under a three years' agreement-one and a half years unexpired-having a "fair wear and "tear" clause, the landlord agreeing to keep the roof and external walls in repair.

The Medical Officer of Health is stated to be of opinion that the damp condition of the basement is" injurious to health," and the Inspector of Nuisances threatens to serve a notice under Section 91 of the Public Health Act, 1875, calling upon the landlord, the mortgagee in possession, (a) to cover the site of the basement with sufficient depth of concrete or other impervious material, (b) to insert a proper damp course in the walls. One of the walls in question is an internal party wall, the adjoining house being the property of a different owner.

Can the landlord, under this notice, be forced to carry out the works (a) and (b), and in case of (b), what should be the procedure as to the party wall?

733.

LANDLORD AND TENANT-GARDEN EDGING-TILES.

Are garden tiles, put in by a tenant of a suburban house to form an edging for walks, removable by him at the end of his tenancy, or not?

REPLIES.*

Reply to Query 677 (Vol. XI., p. 19).

BUILDING LINE OF SHOPS-ALTERED PLANS-HEIGHT OF
BUILDINGS.

If the building line has been duly prescribed as in the manner provided, the Council would not, of course, allow any infringement of such building line.

There cannot be separate building lines for different heights of buildings on one side of a street.

The information given in this case is very meagre, and it is therefore difficult to give a decided opinion upon it. Probably the decision of the Council was influenced by the law as to bringing forward a house or a part thereof beyond the front main walls of the house on either side thereof.

F. J. C. MAY, Fellow.

Reply to Query 689 (Vol. XI., p. 24.)

LANDLORD AND TENANT-LIABILITY TO REPAIR CRACKS IN WALLS UNPERCEIVED AT ENTRY.

The covenant in this case is difficult of construction; the allowance of fair wear and tear only applying to the general and structural repairs seems rather a contradiction. There seems to me no question as to the lessor's liability to the lessee in the matter, as there is nothing in the clause as quoted to enable the latter to compel the lessor to underpin or make good the cracks. There is, however, some doubt as to whether the lessee is directly responsible to the lessor for the work in questiou. I am inclined to the opinion that he is liable to make good the actual damage, but not to underpin, unless it is necessary for his own protection to do so to prevent the building falling, in which case I should say he would be liable to rebuild.

The exemption of reasonable wear and tear seems in this case only intended to provide for the operation of age and the ordinary wear of the house, such as, for example, the wearing down of stone pavements and steps by walking upon them, but does not relieve the lessee from his liability to keep and maintain the structure in good and substantial repair.

W. H. WELLS, Fellow.

* Replies are, in all cases, authenticated by the name of the Member supplying the information asked for.

Reply to Query 704 (Vol. X1., p. 31).

FARM SALE-CONDITIONS-ÜNEXHAUSTED VALUE OF CAKE.

As I read the clause in the conditions of sale-which, by the way, is badly drawn-the purchaser is to pay for the unexhausted value of "cakes used by the tenant (according to the terms of the tenant's agree"ment)." The agreement states that the tenant shall be allowed one-fourth of all cakes used during the tenancy, and in my judgment this is the amount the purchaser is liable for.

This is a very unusual clause.

CHARLES BIDWELL, Fellow.

Replies to Query 705 (Vol. XI., p. 31).

PURCHASE OF GRASS KEEPING LIABILITY TO MAINTAIN FENCES.

This is strictly a legal case, and a legal opinion should be obtained. In my judgment, speaking as a layman, I fear the farmer is liable for the damage his stock may have done. The obligation rests with the owner of the stock to keep them within the boundaries of the land upon which they were grazing, and, as I understand it, it is a matter of no legal consequence what the,condition of the fence that the stock burst through may have been. It seems a hard case, but I fail to see how the vendor can be made responsible. The farmer is liable for the proper control of his stock.

CHARLES BIDWELL, Fellow.

Replies to Query 707 (Vol. X1., p. 32).

GLEBE LANDS-RIGHTS OF INCOMING INCUMBENT.

A.

From the day of the decease of the incumbent the glebe lands pass into the hands of the sequestrators, and they deal with the property until the new incumbent is instituted. In the account then rendered him by them he should be credited, as rent, with a fair proportion of the annual value of the glebe land accruing between the day of the decease of the late incumbent and date of giving up possession.

T. RULE OWEN, Fellow.

B.

So far as the meadow land and pasture is concerned, the executors of a late incumbent dying in June have no right to hold on to October and take the proceeds thereof, although they have absolute right to reap the crop of straw, clover, and roots, according to the Statute of Henry VIII., and the extension of the principle thereof in practice according to the commonly received law of Emblements. See Ferard in the second edition of the Law of Fixtures, by Amos and Ferard, wherein he says, "There are certain vegetable products of the earth, which although they are annexed to, and growing upon the land at the time of the proprietor's death, yet as between his heir (or successor) and his executor, "are considered as a chattel interest and will pass to his executor."

66

This comprises all growing crops which are botanically known as annuals, and which are produced by labour and industry; and the emblements, or the profits of the crop, are considered as a compensation for the labour and expense of tilling, manuring, and sowing the land.

66

"It is now fully established that not only corn and grain of all kinds are emblements, but everything of an artificial and annual profit that is "produced by labour and manurance. And hops also, although they "spring from old roots; because they are annually manured and require "cultivation."

But grass and clover, unless perhaps the first year's crop of clover, cannot be taken.

"Where there is a right to emblements the law confers a free entry, "egress, and regress, in order to cut and carry them away."

"But if the tenant's estate is determined by his own act, as for forfeiture by waste, &c., and where a parson resigns his living, there shall "be no emblements."

When, however, the question goes on to suggest that the benefice (that is, in fact, the new incumbent, for the benefice as such receives no benefit) is entitled to rent, I think it goes too far. The new incumbent had done nothing to entitle him to rent. He certainly had not let the glebe to the executors, and they, on their part, had not agreed to hire the land and pay rent. They might have been turned out at once by a new incumbent had he been at once instituted, or by sequestrators, had any been appointed; but if neither of these steps were taken, and no special agreement made, it seems probable that the parties were content to take a usual and kindly line, and let the representatives of the late incumbent continue to enjoy that of which, strictly, death had deprived them suddenly.

G. R. CRICKMAY, Fellow.

Replies to Query 708 (Vol. XI., p. 130).

SELLING GRASS AND FEED DURING TENANCY OF FARM.

A.

I cannot find the report of any case which decides whether or not the

"selling by auction of grass and feed" is a breach of the covenant "not "to assign, underlet, nor part with possession of the premises nor any "part thereof." It is doubtful if any landlord has ever been venturesome enough to set up any such claim. If one did so he would most likely be met by the plea that the selling of the grass and feed was a mere sale of the produce of the land, which in no way could be considered an underletting. Nor can I think it would be otherwise.

The remedy, if the sale were a breach of covenant, would be too cumbersome for general application.

Of course, if the grass was sold "to go off," contrary to a proviso that it should be consumed on the farm, an injunction to restrain such selling off could be obtained, but that would be for breach of a different covenant from the one as to underletting.

F. PUNCHARD, Fellow.

B.

In the face of the clause in the agreement I don't think the tenant can let the grass and feed by auction.

In Huntingdonshire and parts of Northamptonshire it has become a common practice to let the grass keeping each year by auction, and this is often the case where the farm is in the landlord's hands. 1 know of no cases or custom where a tenant can sub-let contrary to the terms of his agreement, and I am of opinion that in this particular case the tenant can be stopped by law.

CHARLES BIDWELL, Fellow.

C.

I think the landlord's remedy should be by injunction. It appears to me that the tenant by "letting" his grass is "underletting" within the terms of the agreement; it is, however, more a legal question than one of practice, and would turn upon the construction of the agreement, which agreement would override "custom of country."

ALFRED MICHELMORE, Fellow.

D.

I am of opinion that the tenant's action does not amount to an assignment or underletting, but it is for consideration whether it does not amount to a parting with possession of the premises. If so, it would be contrary to the covenant, and I conclude that the landlord could obtain an injunction to stop the sale.