Heil v. Strong

44 Pa. 264 | Pa. | 1863

The opinion of the court was delivered, by

Strong, J.

By the Act of Assembly of March 29th 1822, it was enacted “ that it shall and may be lawful for any owner or owners of any lands or tenements, leased or let for years, or at will, at any time during the continuance, or after the expiration of such demise, and due notice be given to the tenant or tenants to leave the same, according to the Act of Assembly in such case made and provided, * * to apply to the Court of Common Pleas, or District Court of the proper county, while in session, or to any judge thereof in vacation,” for a writ of estrepement to prevent waste. The act evidently has in view two cases, the one an application during the continuance of the term, and the other an application after the termination of the demise and notice to quit. It is only to a tenant who holds over after the expiration of his term that notice to quit need be given. The object of the act was to provide a preventive against waste by a tenant, both during the existence of the term and afterwards. It is true that the estate of a tenant for years may terminate by forfeiture. The statute of Gloucester, 6 Ed. 1, ch. 5, which is in force with us, jorovided that a tenant who shall be attainted of waste shall leave the thing that he hath wasted, and pay treble damages. But our act of 1822 very clearly has no reference to a termination of the term of forfeiture on attainder of a tenant for waste. The attainder spoken of by the statute of Gloucester results from condemnation in a writ of waste. Until condemnation, there was no forfeiture. Our act authorizing an application for a writ of estrepement is in the disjunctive. It may be made during the continuance of the demise, before it has ended in any way, or after its expiration, and it allows the interposition of the court even for threatened waste, which never worked a forfeiture. Hence it is plain that notice to. leave tbe premises is not required, except when the term has ended by its own limitation. Such notice, during the continuance of the term, would be unmeaning, and it is absurd to speak of giving it,' “ according to the provisions of the Act of Assembly in such ease made and provided,” when a lease has ended by forfeiture. No Act of Assembly provides for any notice to quit in such a case. The objection that the writ in this case issued-without previous notice to leave the premises demised is therefore overruled as of no force.

But we think the writ was erroneously issued, because the petition for it averred nothing which amounted to waste or a threat of waste. The lease was made for mining purposes. The tenant was bound by covenant to mine not less than eighty thousand tons annually. To enable him to do this, certain privileges were allowed, but the use of the soil and all minerals, except coal, were reserved to the lessor. Quarrying and mining, as well as all other such acts as will do a lasting injury to the premises demised, are declared to bo waste by the Act of March 27th 1833, P. L. 99, but they are not such when mining is the very purpose of a lease from the owner of the inheritance. Yet the complaint of the lessors, as set forth in their petition for the writ, was that the lessee was committing waste by mining- coal. True, the petition avers, and as the record stands the averment is to be taken as true, that he did not pay the rent reserved, but the waste complained of is the mining, and it is to prevent that, that the writ is specially asked for. It is said there was no right to mine unless the tenant paid rent. But he was as much bound under the lease to mine as he was to pa.y rent. Because he has broken one covenant, may he be compelled by this writ to break another ? His breach of the covenant to pay rent did not work a forfeiture of his lease, or deprive him of any rights which he acquired under it. The lease reserves no right of re-entry, and contains no clause of forfeiture on the tenant’s failure to comply with any of his covenants. Payment of rent then is not a condition upon which his right to mine depends, in any such sense as to make his mining illegal if he fail to pay rent. It is nowhere held that'a landlord may re-enter, and thus make the subsequent acts of his tenant on the demised land trespasses, solely for default in payment of rent, unless such a right has been reserved in the lease. Bowser v. Colby, 1 Hare 109, relied upon by the defendant in error, asserts no such doctrine, and it cannot be maintained that a tenant holds his right under a demise only on condition, and so long as ho shall perform any covenant in the demise. Mining coal by the plaintiff in error ■was not waste, and furnished no sufficient reason for awarding the writ of estrepement.

Nor was the erection of houses on the land, waste. The lease authorized such erections. Nor was driving faults on either the Houtz on the Myer tract, without the knowledge of the heirs of the lessor, even though done with rents which should have been paid to them. It is not pretended that the acts done were injurious to the premises or unwarranted by the lease. The thing complained of is the use of the rents in doing them. A writ of estrepement, however, is provided not for waste or misappropriation of rent, but for destruction of the thing demised out of which the rent issues.

It may bo remarked in conclusion, that the petition prayed only that the tenant should be restrained from mining coal unless he should give security for the rent, and cease his violations of the stipulation of the lease. What was asked for was in substance a writ of estrepement to compel the payment of rent. The writ is not to be used for any such purpose. As it does not rest on the allegation of anything which, with the lease in view, can be denominated waste, it must be set aside.

The order awarding the writ of estrepement is reversed, and the writ is set aside.