| Ill. | Nov 11, 1887
delivered the opinion of the Court:
It is unnecessary to consider whether the Superior Court erred in sustaining the demurrer to the first amended plea, because the same evidence that was admissible under that plea was admissible under the second and fourth pleas, upon which issues were joined. (Zirkel v. Joliet Opera House Co. 79 Ill. 334" date_filed="1875-09-15" court="Ill." case_name="Zirkel v. Joliet Opera House Co.">79 Ill. 334; Zimmerman v. Willard et al. 114 id. 364.) Since the issues of fact were found in favor of the plaintiffs, and that finding is affirmed by the judgment of the Appellate Court, it only remains for. us to inquire whether the Superior Court erred in overruling the demurrer to the replication to the third amended plea.
It is not questioned by counsel for appellants that the rule is, where one leases land upon which there is a building, and the building is destroyed by fire, without the fault of either party, in the absence of a covenant in the lease compelling the landlord to rebuild, such destruction of the building does not terminate the lease or relieve the tenant from his obligation to pay rent for the remainder of the term; they, however, contend, that where the subject of the demise is a portion of a building, or rooms or apartments in a building, the rule is otherwise. The distinction, they claim, is based upon the reason that in the cases where the rule stated applies, the land is the thing demised, and the building is but an appurtenance to the land; and, therefore, although the building may be entirely destroyed by fire, the tenant still has the use of the land for the term, and may occupy it and build upon it if he will; but where the demise is but of a part of a building, or rooms or apartments in a building, the tenant takes only such an interest in the land as is necessary to the enjoyment of the demised premises, and therefore, when the demised premises are destroyed, the subject of the demise is extinguished. We shall not undertake te determine whether the weight of authority sustains this view, for it will, for the present, be sufficient to show, that, conceding it to be accurate, the court properly overruled the demurrer to the replication.
The contention, it will he observed, requires that the part of the building, or the rooms or the apartments, demised, shall be destroyed, and this must mean not merely damaged or injured, but annihilated, for if they remain in but a damaged condition, the tenant may still occupy them, repair the damage, and restore them to their former condition, if he will; and in such a state of facts, the distinction relied upon by counsel, it is clear, would have no’existence,—and this is the purport of the authorities most favorable to appellants, which have been cited by counsel. This replication, in effect, denies that the demised premises were destroyed, and alleges that they were damaged, only, by fire, but not so badly that the defendants were ousted from the premises, and that within a reasonable time after they were thus damaged, the plaintiffs fully repaired the premises, so that they were fit for occupancy, etc. The language of the lease counted upon is: “It is stipulated that in case the above premises are damaged by fire, no rent shall be paid while the premises are unfit for occupancy.” The obligation is assumed by the lessees, of delivering up “the said premises,” at the end of the term, “to the said party of the first part in as good condition as when the same were entered upon by the said party of the second part, loss by fire, or inevitable accident, or ordinary wear excepted.” And so it follows, construing these clauses together, that damages occasioned by fire must be repaired by the landlord. Damages by fire are not to terminate the lease, but to stop the payment of rent merely while the premises are unfit for occupancy. The duty to repair necessarily carries with it the right of entry and of reasonable temporary occupancy for that purpose, and it must be done within a reasonable time, which the replication alleges was done. Wood on Landlord and Tenant, sec. 481; Kellenberger v. Foresman, 13 Ind. 475" date_filed="1859-11-15" court="Ind." case_name="Kellenberger v. Foresman">13 Ind. 475.
The judgment is affirmed.
Judgment affirmed.