CiiAP. II. CIVIL AND ECCLESIASTICAL Dl I.

A IMDATIOXS,
1099
In civil dila|)id.ition<; a tenant is bound, according to liis covenant, specific or general,
but never beyond maintaining and npbulding, unless tlie conditions of repair are so had
tliiit no measures sb.rt of reeonstruction are consistent witb saf.?ty, or possible from tlie
extent of decay. His liability is not sujiposed to extend to sucli defects as only indicate
Hge, so long as the efficiency of the part still remains. But if the efJ'tcts of use or age have
proceeded so far as to destroy the parr, or its efficiency in the structure, the tenant is liable,
it l)eing the presumption tliat at the commencement of the term the tenant was satisfied
that every (lart v/as sufficiently strong to last to the close. On tiie same presumption the
degree of liability of the tenant is regulated by the actual condition of the premises at any
time, as specified in his covenant, and admits of no extenuation by reason of dilapidations
existing at the commencement of bis term, as he is presumed to have taken the proper
course to guard hims If against the occurrence of undue liability. In extreme cases, the
liability of a tenant extends to the rebuilding of a party wall condemned as unsafe, to
reconstruction after fire, &c., unless specially excepted. In fact, under the natural and the
legal favour which the lessor enjoys, the person proposing to become the lessee should
employ a professional surveyor, not only to insi)ect the apparent, and as far as he can the
hidden, state of the building, but also to check the conditions contained in the draft of the
lease, which are sometimes extravagant when applied to an old and worn-out fabric, though
they might be reasonable as regards a new structure.
Whatever the tenant has power to retnove during the term cannot be chargeable with
dilapidations. Upon this point the old rule is, that whatever \s
fixed
to the freehold cannot
be removed by the tenant : tlius a lessee may erect barns or sheds or any building upon
wooden or stone or other blocks laid on the surface of the ground, and take them down, if
be please, without substituting anything in their place
;
but if the barns are fixed into the
ground, they immediately become the property of the lessor. There seems, however, to be
au excei)tion in respect of buildings erected for the purposes of trade: hence not only
coppers and ovens may be taken away, Imt workshops and the like erected by the tenant
for his puiticular trade. This exception seems at first to have apjjlied only to wooden
buildings ; but Lord Kenyon held that a brick chimnt
y
would prevent a tei.ant from
removing a building, and decidid that its being on a brick foundation would not do it.
Though this opinion was not held iiy Lord Ellenborough, yet it was not because the
buildings were of brick, but because they were erected for tlie purposes of agriculture, and
not of trade. It is to i)e remembered, in all cases, that a lessee is bound to leave the
premises in as good condition after the removal of fixtures as though they had never
existed: thus, if a marble be substituted for a wooden chimney-piece, when the former is
removed, the latter, or one of equal value, must be replaced. If a partition be put up and
taken away, all damages to the adjacent work must be repaired.
The general rule for determining what injuries are considered dilapidations, is to ascertain
what is
fair
ueir without dilajjidation arising from accident or neglect. Injury by acci-
dent is that which happens suddenly, and perceptibly diHi'ring from wear, which occurs
only by lengthened use. Thus the nosing of a step worn away is not dilapidation
; but if
such be broken away instead of worn, it is a dilapidation. It may be said that
accident is defined here with too much latitude, iiiasmich as it takes account of
that which occurs without apparent reason at any particidar time; but we use the term in
common language, and may cite as an example, that if the timbers of a floor decay, the
floor will yield, even without a load upon it. When accident occurs, such alone does not
limit the extent of the dilapidation, but also such injuries to the building as follow in its
train. Thus, if the weather-boarding of a building decay from age, so long as the
covering will keep out wet, it is no dilapidation
; but if broken in any part, that is a dilapi-
dation ;
and if from want of reparation any of the internal parts of the building be injured,
such injury is a dilapidation: so if timber or timbers belonging to any part of a house
merely decay, if it or they be still sufficient for the support of the bouse, no dilapidat on
can be chargeable ; but if such timber or tiinbers give way, they must be rejilaced,
and all parts made good which suffered by their failure. Wa^te, in law, is instiffierable,
even in freeholds which are held for lives only. According to Wood^'all {Latidloid and
7e"U7if),
"
waste may be done in houses by pulling them down or suHeiing them to be
unco> ered, whereby the rafters and other timbers of the house become rotten ; but the bare
sufllring them to be uncovered, without rotting the timber, is not waste: so if a house l)e
uncovered when the tenant cometh in, it is no waste in the tenant to suffer the same to fall
down." In external covering, however, it seems that decay arising from inattention to it is
dilapidation, even though no accident be the cause. It is always considered that though
painting neglected is not itself a dilapidation, yet where decay arises from it, it is one.
Broken glass is not considered a dilapidation, unkss there be more than one crack in the
pane. Soine, however, contend that while the glass is sufficiently entire to exclude the
wind and weather, no waste is assignable. Generally it seems then to be the rule, that
where accident occurs, it is a dilapidation.
In the preceding par^^raph the word neglect has naturally occurred
;
dilapidfltion from