Lanpher v. Glenn

37 Minn. 4 | Minn. | 1887

Gilfillan, C. J.

At the common law, the rule undoubtedly was that a lessee of real estate for a term, who had covenanted to pay the rent without excepting the case of destruction by fire or'tempest of the buildings on the real estate, was not released from his obligation to pay the rent by such destruction. This was because the lease created an interest in the land, by virtue of which the lessee might, notwithstanding the destruction of the buildings, retain possession of the land to the end of his term. An exception to this, or, rather, a ease to which, from the circumstances, the rule did not apply, was that of renting rooms or apartments in a building, in which case no interest in the real estate beyond that connected with and necessary to the enjoyment of the particular room or apartment passed, and of necessity such interest ceased when the room or apartment ceased to exist; for in such a case, especially where there are several tenants, some above and some below, they cannot all have the realty “usque ad ccelum.” Such cases were, from the nature of the case, construed not to pass any interest in the land, independent of the particular room or apartment rented.

The lease, in this case, having been executed prior to the act of 1883, (Laws 1883, c. 100,) comes under the rule of the common law. Whether the liability to pay rent continued, notwithstanding the building was destroyed by fire, must depend on whether the lease passed an 'interest in the land; that is, whether it was a lease of the land for the specified term. The description of the premises leased is this: “The real property situate in the county of Eamsey and state of Minnesota, and described as follows, that is to say: The two-story (and rear basement) frame stores, and dwellings overhead, situated on the westerly side of Jackson street, near what is designated on D. L. Curtice’s 1880 map of the city of St. Paul as Winter street, situated in the said city of St. Paul, being a portion of the east half of the north-west quarter of section thirty-one,” “together with the appurtenances thereof. ”

It does not appear from the lease (nor otherwise) that any part of the building was excepted. The words “and rear basement” do not indicate it. They are to be taken as used to describe the building as a two-story and rear-basement building. It appears, therefore, that the entire building is covered by the description. Land may be granted or leased by the description of a building on it. “And by the grant of a house, the ground whereon it doth stand doth pass.” Shep. Touch. 90. A garden may pass by conveyance of a house. Smith v. Martin, 2 Saund. 400. The demise of a mill carries the ground on which it stands. Bacon v. Bowdoin, 22 Pick. 401. See, also, Ammidown v. Ball, 8 Allen, 293; Hooper v. Farnsworth, 128 Mass. 487; Winchester v. Hees, 35 N. H. 43; Wilson v. Hunter, 14 Wis. 683, (80 Am. Dec. 795;) Rogers v. Snow, 118 Mass. 118. This lease was, then, a lease of the ground as well as of the building, and it brings the case within the rule of the common law we have stated. Judgment affirmed.