1 For a case of merger of a term in the fee, see CarrolL v. Ballance, 26 111. 9, and compare . - Ed.

It may be added that at common law, where the interest of the lessee in a part of the demised premises was destroyed by the act of God, so that it was incapable of any beneficial enjoyment, the rent might be apportioned. In Rolle's Abridgement, 236, it is said that if the sea break in and overflow a part of the demised premises, the rent shall be apportioned for, though the soil remains to the tenant, yet as the sea is open to every one, he has no exclusive right to fish there. A distinction is taken between an overflow of the land by the sea, and fresh water, because, though the land be covered with fresh water, the right of taking the fish is vested exclusively in the lessee, and in that case the rent will not be apportioned. In the latter case the tenant has a beneficial enjoyment, to some extent, of the demised premises, but in the former he has none, and if the use be entirely destroyed and lost, it is reasonable that the rent should be abated, because the title to the rent is founded on the presumption that the tenant can enjoy the demised premises during the term. Com. Land. and Ten. 218; Gilb. on Rents, 182.

Where the lessee takes an interest in the soil upon which a building stands, if the building is destroyed by fire, he may use the land upon which it stood, beneficially, to some extent, without the building, or he may rebuild the edifice; but where he takes no interest in the soil, as in the case of a demise of a basement, or of upper rooms in the building, he cannot enjoy the premises in any manner after the destruction of the building, nor can he rebuild the edifice. He cannot have the exclusive enjoyment of the vacant space formerly occupied by the demised rooms. The effect of the destruction of the building, in such a case, is analogous to the effect of the destruction of demised premises by the encroachments of the sea, mentioned in Rolle's Abridgment; and the established rule for the abatement or apportionment of the rent, should be applied in the former as well as in the latter case. The same reason exists for its application in both cases.

But even if the lessee's interest in the demised apartment, in a case like this, was not terminated by the total destruction of the building, it may be doubted whether the lessee could recover rent so long as he failed to give to the demised upper rooms the support necessary to them for special enjoyment. The rule seems to be settled in England, that where a house is divided into different floors or stories, each occupied by different owners, the proprietor of the ground floor is bound, by the nature and condition of his property, without any servitude, not only to bear the weight of the upper story, but to repair his own property so that it may be able to bear such weight. The proprietor of the ground story is obliged to uphold it for the support of the upper story. Humphrey v. Brogden, 12 Q. B. 739; s. c. 1 Eng. Law and Eq. 241; Rowbothem v. Wilson, 36 Id. 236; Harris v. Roberts, 6 El. & Br. 643; s. c. 7 Id. 625. In the case last cited the duty of such support is recognized as a general common law right. In a lease of upper rooms by the owner of the entire building, a covenant should be implied on the part of the lessor to give such support to the upper rooms as is necessary for their beneficial enjoyment. It has been decided in this court that the statute forbidding the implication of covenants in conveyances of real estate, does not apply to leases for years. Mayor of New York v. Maybee, 3 Kern. 151; Vernam v. Smith, 15 N. Y. 332, 333.

The judgment should be affirmed.1

Fowler V. Bott

6 Massachusetts, 63. - 1809. [Reported herein at p. 725.]

f. Holding over the term. (1.) When Tenant Will be Held for Another Year.

Haynes V. Aldrich

133 New York, 287. - 1892.

Finch, J. - Judgment was ordered against the defendant upon the trial of this action for rent accrued after the expiration of her original lease, upon the ground that by holding over after such expiration, she became a tenant for another year upon the terms of the prior written lease. The facts disclosed were that such lease ended by its terms on May 1, 1889; that it contained a provision that the premises should be occupied as a private dwelling, and a covenant not to sublet without the written consent of the lessor. Both stipulations were violated. The tenant, without permission, rented the premises to Mrs. Coventry, who occupied them as a boarding house, and received, as one of her boarders, a lady who was a chronic invalid and continuously ill. On the 4th of February, 1889, the lessor inquired of the lessee whether she desired to renew her lease for another year, and was informed that she did not. The first day of May was a holiday, and possibly the tenant had until noon of the next day for a surrender of possession. But the possession was retained by the tenant until the afternoon of May 4th, when the keys were tendered, but refused. The excuse given is that on the second day of May, there was difficulty in engaging trucks; that the removal began on the third, but the sick boarder could not then be moved with safety, and was not moved until the fourth.

1 But see the dissenting opinion by Wright, J., and the case of Helburn & Co. v. Mofford, 7 Bush. (Ky.) 169. See also § 197, N. Y. R. P. L. - Ed.

This court held in Commissioners of Pilots v. Clark, 33 N. Y. 251, that the rule is too well settled to be disputed that where a tenant holds over after the expiration of his term the law will imply an agreement to hold for a year upon the terms of the prior lease; that the option to so regard it is with the landlord and not with the tenant, and that the latter holds over his term at his peril. In Conway v. Starkweather, 1 Den. 114, the tenant had notified the landlord of his intention not to remain for another year, as was the fact in the present case, but, nevertheless, did hold over for a fortnight, and the fact of the notice was held to be immaterial, the court saying, "the act of the plaintiff in holding over has given the defendants a legal right to treat him as tenant, and it is not in his power to throw off that character, however onerous it may be."