§ 301. The tenant's right to make alterations. — The right which the tenant has is to make use of the property. The power of making alterations does not arise out of a mere right of user. It is, therefore, incompatible with his interest for a tenant to make any alteration, unless he is justified by the express permission of his landlord.1

By a lease, the use--not the dominion-of the property demised, is conferred. If a tenant exercises an act of ownership he is no longer protected by his tenancy.

It is, in general, not necessary for the landlord to wait until the end of the term before proceeding against the tenant for making unwarranted alterations; and there appears to have been no case in which the landlord was required to wait until the end of the lease to see whether the tenant has gone beyond the powers conceded by the lease, or whether the premises might be restored by the tenant to their original condition. If the waste committed went beyond the license, an immediate wrong was done, which was at once the subject of redress in a Court, either of law or of equity.

The Courts have exercised the power over tenants in a manner quite watchful of the interests of the landlord, and have never left the matter for adjustment when, as at the end of the term, the landlord could have no redress except a personal judgment against the out-going tenant; and whenever the tenant has gone beyond the powers conceded by the lease, he has been restrained by injunction, or compelled at once to make satisfaction, or to restore the premises to the condition in which he found them.2

But it is not such an alteration as would warrant an action at law, or in equity, for a tenant to put new structures or other improvements on the property, as the requirements of his business demand, so long as, in so doing, he does nothing to injure

1 Taylor's L. and T. 348; Farrant v. Thompson, 5 B. & Ald. 826; Doe v. Jones, 4 B. & Ald. 126; Jackson v. Tibbetts, 3 Wend. 341; Baxter v. Taylor, 1 Nev. & Man. 11. "A lessee, in the absence of an agreement to that effect, or of an express permission from his lessor, is not justified in making alterations in the demised premises." (Agate v. Lowenbein, 57 N. Y. 604.)

2 Packington v. Packington, 3 Atkyns, 215; Rolt v. Lord Somerville, 2 Ab. Eq. 759; Astor v. Astor, 1 Vesey, Sr. 264; Strathmore v. Bowes, 2 Bro. Chap. 88; Marker v. Marker, 4 Eng. Law and Eq. 95: 1 Washburn, R. P. 120; Agate v. Lowenbien, 57 N. Y. 612-4.

or impair the value of the freehold. An agricultural tenant might, therefore, make such alterations as consisted in fencing, erecting new buildings, and similar improvements; but he would have no right, in so doing, to pull down valuable buildings, permanent fences, or other improvements already existing on the demised premises. He has no right to so meddle with existing condition of things, or to make improvements or alterations which will materially and permanently change the nature of the property, so as to make it impossible for him to restore the premises, at the expiration of the term, substantially as he received them.1

§ 302. Distress for rent has been so far superseded by statutory regulations as to have lost many of its distinguishing features as a common-law remedy in favor of the landlord to obtain his rent; but the chief characteristics of the proceeding still affect many of the States.

By this procedure, the landlord seized the tenant's goods and chattels, held them in pledge for a specified time, and then, the rent remaining unpaid, sold them, and applied the proceeds to the payment of the debt.

The proceeding is not governed by the practice affecting ordinary trials at law; it originates from the action of the landlord. The levy is made under his authority, and not under a process of the Court. After the seizure is made, however, the matter is transferred to the appropriate Court, for the purpose only of ascertaining whether the relation of landlord and tenant exists, and what sum was due for rent when the goods were seized.2

1 Taylor's Landlord and Ten. 348; Sheifelin v. Carpenter, 15 Wend. 400; Winship v. Pitts, 3 Paige, 259. See Pennybacker v. McDougall, 48 Cal. 160-4; Jesser v. Gifford, 4 Burrow, 2141. Good faith, on the part of the tenant, is no defense where the act, on general principles of law, amounts to waste. (Clarke v. Holden, 7 Gray, 8.)

2 Allwood v. Mansfield, 33 Ill. 452; 3 Kent's Com. 476; Taylor's Land. and Ten. 556. This remedy appears to be in full force in the New England States through the law of attachment on mesne process. In South Carolina, double rent may be collected; and Chancellor Kent declares that the English common and statutory law, in relation to distress for rent and the relief of landlords, has been generally adopted by the United States. (3 Kent's Com. 472.) But careful examination of the laws discloses that the adoption of the common law has been followed by statutory enactment, in the several States, so far modifying the same

§ 303. The landlord's title cannot be disputed by the tenant. The relation of the parties, one to the other, and each to the property leased, is such that public policy demands the rigid enforcement of this rule; so that, in whatever form of action, the matter of title is of importance. He who occupies the relation of tenant, having once recognized another person as his landlord by accepting a lease from him, or the like, is precluded from showing that he from whom he has leased had no title at the time the lease was granted. And this rule extends to a tenant holding over, as well as to an under tenant, assignee, or other person claiming under the lessee, and is applicable to every species of tenancy, whether for years, at will, or by suffrance.1

§ 304. A fraudulent lease may be assailed by the tenant. The tenant may, by direct attack, assail a lease obtained from him through fraud, or by unfair practices, to induce him to take a lease of premises which were in his possession.2

that in New York, North Carolina, California, Tennessee, Ohio, and Alabama the remedy has ceased to exist; and the general tendency of rulings by the Courts is to deem the remedy objectionable, and fit to be abolished, as being an unreasonable and oppressive relic of the feudal system, repugnant to the policy of our institutions.

Youngblood v. Lowry, 2 McCord, 39; Dalgleish v. Grandy, Cam. & Nor. 22; Deanes v. Rice, 3 Batt. 431; Bohm v. Dunphy, 1 Mon. T. by which it appears that, in Montana Territory, the common-law remedy by distress has been superseded by the statutory remedies given by statute. So, in Mississippi, it is held that the statutory remedies have superseded the common-law right of distress. (Marge v. Dyche, 42 Miss. 347.)

1 Bremer v. Bigelow, 8 Kan. 497. "A tenant cannot, as a rule, dispute the title or right of possession of his landlord, nor of any other person who has succeeded to the rights of his landlord, as long as such tenant holds possession derived originally from his landlord."

Taylor's Landlord and Ten. Sec. 705; Townsend v. Davis, Forrest, 120; Simmons v. Robertson, 27 Ark. 50; Prevot v. Lawrence, 51 N. Y. 219. "The tenant cannot, during the term of a lease, hold out adverse possession against the landlord by the mere intention so to hold, and without doing some act which would amount to adverse possession by a tenant who enters under a lease." (Abbey Homestead Association v. Willard, 48 Cal. 614; St. John v. Quitzen, Sup. Ct. Ill. June, 1874.)

"Whilst it is true, as a general proposition, that a tenant cannot dispute his landlord's title, yet he may show that it has terminated by its own limitation." (Tilghman v. Little, 13 Ill. 239; Franklin v. Palmer, 50 III. 202.)

2 Jenckes v. Cook, 9 R. I. 520. "One whose signature to a lease has been obtained through fraud or misrepresentations, is not precluded from denying the lessor's title." (Taylor's Land. and Ten. Sec. 705.)

He may also set up against his landlord the title under which he leased from him; may buy in the same at sheriff's sale in an action against his lessor, or at a tax sale, unless he was bound to pay the taxes, and the title thus acquired he may oppose to his landlord's claim for the premises; and1 unless he received the possession from the landlord, the tenant may assail the lease by showing that he paid rent under a mistake of facts, there being a recognized distinction between a deliberate entry into possession under a lease, and an acknowledgment of title by paying rent for premises which are in the possession of the tenant.2

§ 305. As to waste in farming leases.-The general definition of the word, "a spoil or destruction, either voluntary or permissive, of the houses, lands, or tenements, to the damage of him who is in reversion or remainder," does not go enough into details to be of value.

Waste may be incurred in respect to the soil, as well as to buildings, trees, fences, or even live-stock, and the law regards as waste every act or omission which does a permanent injury to the inheritance; and even in the matter of repairs, if the tenant thereby has added to the permanent value of the premises, to remove them is waste.3

Destruction of farm buildings, fences, and other structures, by the elements, becomes waste when it might have been avoided by the exercise of an ordinary, reasonable exercise of care and

1 Miller v. McBrier, 14 S. & R. 382; Newman v. Rutter, 8 Watts, 51; Taylor's Land. and Ten. 705; Miller v. Bonsaden, 9 Ala. 317. "So if he buy in the whole or part of the lessor's title at a tax or execution sale, or by private purchase, it is a proportionate defense to suit for rent or ejectment." (Nellis v. Lathrop, 22 Wend. 121; Evertson v. Sawyer, 2 Wend. 507.)

In

2" There is a difference, also, whether the party has received possession from the lessor of the plaintiff, or has merely admitted his title by paying rent. the former case, he is estopped from denying it without any title at all; but in the latter, the defendant may rebut the presumption arising from such payment, by showing that he paid the rent under a mistake or through misrepresentations." (Taylor's Land. and Ten. Sec. 707; Remil v. Robinson, 1 Bing. 147; Fleming v. Gooding, 10 Ibid, 549; Fenner v. Duplock, 2 Bing. 10; Rogers v. Pitcher, 6 Taunt. 202.)

3 Co. Lit. 53b; 2 Roll. Abr. 816, 1, 15. Voluntary waste consists in doing something which the tenant is prohibited by law from doing; while permissive waste allows something to happen which he is by law bound to prevent. The one is an offense of commission, the other of omission." (McGregor v. Brown, 10 N. Y. 114; Livingston v. Reynolds, 2 Hill, 157.)

precaution; and so of loss by fire-it is waste when occurring through the tenant's carelessness.1

§ 306. Right of tenant to cut fire-wood.-In the matter of cutting wood, it is not necessarily waste for the tenant so to do; manifestly, to cut fire-wood from the trees of an orchard, or from timber-trees, which, from their position, have an especial value to the premises, is waste; while to cut trees which are not timber, or growing in defense of or to ornament the house, or fruittrees, growing in an orchard or garden, will amount to waste, and local custom and particular circumstances must be taken into account in determining whether the cutting of any given wood is waste or not.2

§ 307. Tenant's duty to guard property against injury. -The tenant, under farming lease, is bound to protect the property from injury to the extent of his ability; he is not an insurer against casualties, but the law implies a covenant on his part to exercise over the property leased the same care which a prudent person would ordinarily manifest in that of his own property.

The landlord may look to his tenant to make good all injuries to the premises while in possession of the tenant, regardless of whether caused by the act or negligence of the lessee or by a stranger. While the possession and control of the property rests with the tenant, the landlord, being deprived of the power to protect it, may rely upon the covenant against waste.3

§ 308. The right to remove fixtures which the tenant has placed upon the leased premises appears generally to have been. conceded. The rules concerning fixtures are to be construed with the greatest liberality in favor of tenants, while between

1 "If a house be destroyed by a tempest, fire from lightning, or the like, which is an act of Providence, it is not waste, for actus Dei nemini facit injuriam; yet it becomes so if the damage done by the tempest was occasioned by the tenant's previous neglect to repair, or if he does not forthwith proceed to repair.” (Taylor's L. and T. Sec. 347; Moore, 62; Viner's Abr. Waste, 1.)

2 Taylor's L. and T. Sec. 305.

8 "In the absence of a special agreement to the contrary, the tenant is liable to the landlord for all waste, by whomsoever committed; having his right of action over against the actual wrong-doer." (Parrott v. Barney, 2 Abb. U. S. 197.)