his covenants during the period of eviction.93 If, however, the eviction is partial only, the tenant though excused from payment of rent altogether, is not excused from the obligation of his other covenants.94 Eviction involves a breach of duty on the part of the landlord, therefore the loss of the leased premises does not amount to an eviction if,

97

1. The tenant's dispossession was by the tortious act of a third person; 95 or, 2, although by or under the authority of the landlord was justifiable. As the landlord impliedly, if not expressly, warrants the quiet enjoyment of the demised premises, eviction by title paramount is an excuse to the tenant; but in such a case if the eviction relates to part only of the demised premises, and the tenant remains in possession of the remainder, he is entitled only to abate the rent proportionally.98

The tenant is evicted by paramount title though he surrenders possession without disputing a valid claim,99 or attorns to the holder of the paramount title as his tenant.1 The lessee, however, acts at his peril in surrendering possession without judgment in favor of the paramount title, since if the alleged paramount title is invalid, the tenant will remain liable under his lease; and even though a valid adverse right

v. Brockman, 171 Ill. App. 465; Noyes v. Anderson, 1 Duer, 342. See also Porter v. Tull, 6 Wash. 408, 33 Pac. 965.

$3 Andrews v. Needham, Cro. Eliz. 656 (covenant to repair excused).

Newton v. Allin, 1 Q. B. 518; Morrison v. Chadwick, 7 C. B. 266.

95 Simons v. Farren, 1 Bing. N. C. 126; Chestnut v. Tyson, 105 Ala. 149, 16 So. 723; Barry v. Guild, 126 Ill. 439, 18 N. E. 759, 2 L. R. A. 334.

56 As where the landlord enters under authority of the lease; or where the lease provided that the acts of third persons might be done which interfered with the tenant's enjoyment. Tham v. Carroll, 147 N. Y. App. Div. 229, 132 N. Y. S. 4.

"Tiffany, Real Property, § 43.

Smith v. Malings, Cro. Jac. 160;

Tomlinson v. Day, 2 B. & B. 680; Buffum v. Deane, 4 Gray, 385; Duhain v. Mermod, etc., Co., 211 N. Y. 364, 105 N. E. 657; Fifth Ave. Bg. Co. v. Kernochan, 221 N. Y. 370, 117 N. E. 579. In Gribbie v. Toms, 70 N. J. L. 522, 57 Atl. 144, the landlord during the tenancy sold a portion of the premises in consequence of which the tenant was physically expelled from that part of the premises. The landlord was allowed to recover rent for the remainder.

99 Morse v. Goddard, 13 Metc. 177, 46 Am. Dec. 728; Lambert v. Estes, 99 Mo. 604, 13 S. W. 284. See also Kramer v. Carter, 136 Mass. 504, 509; Wilson v. Cochran, 46 Pa. 229.

to the property exists, a yielding of possession before the right is in some way actually asserted cannot be relied upon as an eviction.2

It has, however, been held that where part of the leased premises have been taken by eminent domain there is not even partial eviction, and the tenant is not released even pro tanto from his obligation to pay rent; the tenant receiving sufficient compensation from the State to indemnify him for the property of which he has been deprived. And in such jurisdictions restrictions imposed by the police power of the State not induced or incited by the landlord will not amount to a construction eviction.4

In several States, however, the condemnation is held to dissolve the tenancy to the extent of the portion of the premises condemned. If all the property is taken it seems admitted that the tenancy is dissolved." "It is difficult to perceive how the quantity of the estate taken can vary the relations of the parties since in the one case as in the other, the act is the act of the state." 7

It has been often stated that no act of the landlord will constitute an eviction unless so intended. It is doubtless

2 There can be no doubt that the rule as between landlord and tenant is the same in this respect as it is between the grantor and grantee under a deed of conveyance with warranty of quiet enjoyment. Hester v. Hunnicutt, 104 Ala. 282, 16 So. 162; Axtel v. Chase, 83 Ind. 546, 558; Green v. Irving, 54 Miss. 450, 28 Am. Rep. 360; Drew v. Towle, 30 N. H. 531, 64 Am. Dec. 309; Kellog v. Platt, 33 N. J. L. 328; McGrew v. Harmon, 164 Pa. St. 115, 30 Atl. 265, 268; Morgan v. Henderson, 2 Wash. T. 367, 8 Pac. 491.

3 Stubbings v. Evanston, 136 Ill. 37, 26 N. E. 577, 11 L. R. A. 839, 29 Am. St. Rep. 300; Gluck v. Baltimore, 81 Md. 315, 32 Atl. 515, 48 Am. St. Rep. 515; Parks v. Boston, 15 Pick. 198; Goodyear Shoe Machinery Co. บ. Boston Terminal Co., 176 Mass. 115, 117, 57 N. E. 214; Folts v. Huntley, 7

Wend. 210; Foote v. Cincinnati, 11 Ohio, 408, 38 Am. Dec. 737; Workman v. Mifflin, 30 Pa. St. 362.

4 Taylor v. Finnigan, 189 Mass. 568, 573, 76 N. E. 203.

Hinrichs v. New Orleans, 50 La. Ann. 1214, 24 So. 224; Board of Levee Commissioners v. Johnson, 66 Miss. 248, 6 So. 199; Biddle v. Hussman, 23 Mo. 597; Uhler v. Cowen, 192 Pa. St. 443, 44 Atl. 42.

Corrigan v. Chicago, 144 III. 537, 33 N. E. 746, 21 L. R. A. 212; O'Brien v. Ball, 119 Mass. 28; Goodyear v. Boston Terminal Co., 176 Mass. 115, 116, 57 N. E. 214; Lodge v. Martin, 31 N. Y. App. Div. 13, 52 N. Y. S. 385; Dyer v. Wightman, 66 Pa. 425. 7 Board of Levee Commissioners v. Johnson, 66 Miss. 248 256, 6 So. 199. 8 Upton v. Townsend, 17 C. B. 30, 64; Warren v. Wagner, 75 Ala. 188, 51

true that a mere trespass by the landlord will not amount to an eviction. And in some cases whether an act is a trespass or an eviction will depend upon the landlord's intention; thus a wrongful entry upon the premises may be an eviction if made for the purpose of permanently ejecting the tenant from the whole or part of the premises, but may not be such an eviction if made for a temporary object. On the other hand, if the landlord's acts necessarily deprive the tenant permanently or for a long time of the enjoyment of the property it can hardly be material with what intention the landlord acts,10

§ 892. Constructive eviction.

Not only actual expulsion may amount to an eviction, but there may be constructive eviction by wrongful acts, or failures to act on the part of the landlord which essentially deprive the tenant of beneficial enjoyment of the premises. Unlike the rule governing actual eviction by expulsion, it

Am. Rep. 446; Potts-Thompson Liquor Co. v. Capital City Tobacco Co., 137 Ga. 648, 74 S. E. 279; Hayner v. Smith, 63 II. 430, 14 Am. Rep. 124; Rubens v. Hill, 213 Ill. 523, 539, 72 N. E. 1127; Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322.

9 9 Upton v. Townsend, 17 C. B. 30, 64; Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446; Lynch v. Baldwin, 69 Ill. 210; Skally v. Shute, 132 Mass. 367; McFadin v. Rippey, 8 Mo. 738; Lounsbery v. Snyder, 31 N. Y. 514.

10 This is ordinarily expressed by saying the intent to evict is in some circumstances conclusively presumed. See, e. g., Powell v. Merrill, (Vt. 1918), 103 Atl. 259. It might better be said that in such a case the intent is immaterial. In Skally v. Shute, 132 Mass. 367, 370, the court said: "The question of actual intent arises only when the acts are such as do not of themselves afford a presumption of intent. Generally the question whether acts of the landlord in conse

quence of which the tenant abandons the premises amount to an eviction, is a question of law, and includes the question whether they constitute proof of the intent. A person is presumed to intend the natural and probable consequences of his acts; and when the acts of a landlord upon the demised premises are such as naturally and probably exclude the tenant from the possession and enjoyment of the premises, and assert a title in the landlord himself, the law presumes an intent to do so; and, if the natural consequence follows, the acts are said to amount to an eviction. From the physical exclusion of the tenant from the premises, the law presumes an intent to evict; and wrongful acts of the landlord upon the premises, which render them permanently unsafe and unfit for occupancy, so that the tenant loses the enjoyment of them, carry with them the presumption of the intent to deprive the tenant of that enjoyment."

is here necessary in order to take advantage of acts as a constructive eviction for the tenant altogether to abandon the premises. His action must have been caused by the acts which he asserts operated as an eviction," and the right to abandon for constructive eviction must be exercised promptly. But abandonment of the premises is not essential to seeking equitable relief.12 In the absence of a covenant to that effect, a landlord is under no obligation that the premises shall be tenantable at the time they are leased, or that they shall be made tenantable by repairs or abatement of supervening nuisances during the tenancy;13 and, as has been seen, 14 even if the landlord covenants to repair, a breach of the covenant will not excuse the tenant from the performance of his covenants; but if the landlord in violation of such a covenant permits the premises to become actually untenantable it is a constructive eviction, justifying the tenant in abandoning the premises, thereby terminating his liability for rent. 15

11 Taylor v. Finnigan, 189 Mass. 568, 76 N. E. 203, 2 L. R. A. (N. S.) 973; Metropole Const. Co. v. Hartigan, 83 N. J. L. 409, 85 Atl. 313; Bowder v. Gillis, 132 Minn. 189, 156 N. W. 2; Edgerton v. Page, 26 N. Y. 281; Tham v. Carroll, 147 N. Y. App. Div. 229. As to the necessity of the abandonment being caused by the acts claimed to amount to an eviction, see Edwards v. Candy, 14 Hun, 596; Tham v. Carroll, 147 N. Y. App. Div. 229, 233.

12 Epstein v. Dunbar, 221 Mass. 579, 109 N. E. 730.

13 Hart v. Windsor, 12 M. & W. 68; Keates v. Cadogan, 10 C. B. 591; Gott v. Gandy, 2 E. & B. 845; Little Rock Ice Co. v. Consumers' Ice Co., 114 Ark. 532, 170 S. W. 241; Gately v. Campbell, 124 Cal. 520, 57 Pac. 567; Roehrs v. Timmons, 28 Ind. App. 578, 63 N. E. 481; Lewis v. Clark, 86 Md. 327, 37 Atl. 1035; Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322; Taylor v. Finnigan, 189 Mass. 568, 573, 76 N. E. 203, 2 L. R. A. (N. S.) 973; Mills v. Swanton, 222 Mass. 557, 111 N. E. 384; Petz v. Voigt Brewery

Co., 116 Mich. 418, 74 N. W. 651, 72 Am. St. Rep. 531; Griffin v. Freeborn, 181 Mo. App. 203, 168 S. W. 219; Rheims v. Dolley, 93 N. Y. Misc. 500, 157 N. Y. S. 213; Wood v. Carson, 257 Pa. 522, 101 Atl. 811. See also Pratt v. Grafton Elec. Co., 182 Mass. 180, 65 N. E. 63. The law is otherwise in Louisiana, C. C. Art. 2692-2694; and in New York, though the landlord does not warrant tenantable condition, by statute the tenant may surrender the premises without liability if they become untenantable by physical destruction or deterioration. May v. Gillis, 169 N. Y. 330, 62 N. E. 385; cf. FloydJones v. Schaan, 129 N. Y. App. Div. 82, 113 N. Y. S. 472. The question of a landlord's liability in tort for knowingly or negligently leasing dangerous property is not here under discussion.

14 Supra, § 890.

15 Lewis v. Chisholm, 68 Ga. 40; Bissell v. Lloyd, 100 Ill. 214; Dolph v. Barry, 165 Mo. App. 659, 148 S. W. 196; Sheary v. Adams, 18 Hun, 181 (statutory); McCardell v. Williams,

19

Similarly it is a constructive eviction to fail to furnish heat, 16 or water,17 in accordance with an obligation imposed by the lease. Permitting adjoining property of the landlord to be used for purposes inconsistent with the purpose for which the property in question was rented, 18 or permitting such adjoining property to be used for immoral purposes, or fostering any continuing nuisance, 20 refusing to allow a new key to be made to replace one lost by the tenant, 21 or in any way substantially depriving the tenant of the enjoyment of the leased premises in violation of a duty assumed by the landlord, amounts to an eviction.22 But building on adjoining land of the landlord an ordinary structure with no purpose to evict the tenant does not amount to eviction though it renders unfit for use part of the leased premises. 23 In all the cases thus far supposed, wherever there has been held constructive eviction there has been a violation of duty on the part of the landlord which would justify the tenant not only in abandoning the premises but in suing for breach of the landlord's covenant of quiet enjoyment; but there seems a disposition to regard the lease of an apartment or flat as imposing liabilities upon the parties somewhat different from those imposed by a lease of a whole building. Where "an intolerable condition which the tenant neither causes nor can remedy" arises, there has been held in New York to be con

19 R. I. 701, 36 Atl. 719. But see Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322.

18 Morse v. Tochterman, 21 Cal. App. 726, 132 Pac. 1055; Bass v. Rollins, 63 Minn. 226, 65 N. W. 348; Berlinger v. Macdonald, 133 N. Y. S. 522, 149 N. Y. App. Div. 5; Russell v. Olson, 22 N. Dak. 410, 133 N. W. 1030, 37 L. R. A. (N. S.) 1217; McSorley v. Allen, 36 Pa. Super. 271.

" Boston Veterinary Hospital v. Kiley, 219 Mass. 533, 107 N. E. 426. 18 Wade v. Herndl, 127 Wis. 544, 107 N. W. 4, 5 L. R. A. (N. S.) 855.

19 Weiler v. Pancoast, 71 N. J. L. 414, 58 Atl. 1084; Wolf v. Eppenstein, 71 Or. 1, 140 Pac. 751.

20 York v. Steward, 21 Mont. 515,

55 Pac. 29, 43 L. R. A. 125; Barnard Realty Co. v. Bonwit, 155 N. Y. App. Div. 182, 139 N. Y. S. 1050.

21 Smith v. Tennyson, 219 Mass. 508, 107 N. E. 423.

22 Grabenhorst v. Nicodemus, 42 Md. 236; Alger v. Kennedy, 49 Vt. 109, 24 Am. Rep. 117.

23 Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322. For the same reason, where the tenant knows that the leased land is subject to the servitude of a railroad viaduct, the fact that he is deprived for part of the term of the use of part of the premises by repairs on the viaduct, cannot be regarded as an eviction. Friend v. Oil Well Supply Co., 179 Pa. 290, 36 Atl. 219.