And, by the weight of authority, though with prominent dissents, a surrender occurs when the landlord simply relets the land vacated by his former tenant, without the latter's consent or agreement either express or implied. Where, on the other hand, the lessor merely puts another tenant in possession, rent free, or relets by authority express or implied of the former tenant, there is no surrender.2 Likewise, the landlord's acceptance of the keys of the house, handed to him or his agent by or for the tenant, does not in itself bind the lessor to a surrender. Such taking of the keys, however, is good evidence for the tenant in helping to establish the landlord's reassumption of control of the property; and, with other slight circumstances, may be enough to warrant a court or jury in finding a surrender. Thus, when the landlord takes the keys and puts on new locks, or moves out chattels that the tenant has left in the house, or otherwise manifests personal dominion over the premises, he thereby establishes a surrender by operation of law.5 § 653. Landlord not usually obligated to protect Interest of Vacating Tenant. After the foregoing discussion of surrender by operation of law, logically it should be added that, when a tenant abandons the property, and the landlord does not reassume control of it as his own, and no surrender results, the law does not impose upon the landlord, merely from these facts, any obligation to preserve or care for the property, or to seek to lease it to another, in order to mitigate the damages against the outgoing lessee. The property is the tenant's dur a surrender. Ibid.; Walls v. Acheson, 3 Bing. 462; Reeves v. McComeskey, 168 Pa. St. 571; Chaplin, Landl. & T. § 561. 1 Oastler v. Henderson, L. R. 2 Q. B. Div. 575; Gray v. Kaufman Dairy & Ice Co., 162 N. Y. 388; Pelton v. Place, 71 Vt. 430; Auer v. Penn, 99 Pa. St. 370; Brown v. Cairn, 107 Iowa, 727; 2 Taylor, Landl. & T. § 516. Contra, Marshall v. Grosse Clothing Co., 184 Ill. 421; Welcome v. Hess, 90 Cal. 507. 2 Ibid.; Underhill v. Collins, 132 N. Y. 269; Oldewurtel v. Wiesenfeld, 97 Md. 165; Hardison v. Lewis, 114 Ga. 602; 1 McAdam, Landl. & T. § 207. Oastler v. Henderson, L. R. 2 Q. B. 269; Dorrance v. Bonesteel, 51 N. Y. App. Div. 129; White v. Berry, 24 R. I. 74; Auer v. Penn, 99 Pa. St. 370; Nelson v. Thompson, 23 Minn. 508; Prentiss v. Warne, 10 Mo. 601; Bowen v. Clarke, 22 Or. 566; Hardison v. Lewis, 114 Ga. 602;1 McAdam, Landl. & T. §§ 205-207; Chaplin, Landl. & T. $ 565. 4 Conway v. Carpenter, 80 Hun (N. Y.), 428; Tallman v. Earle, 13 N. Y. Supp. 805; Chaplin, Landl. & T. § 565. 5 Last two preceding notes; Gray v. Kaufman Dairy & Ice Co., 162 N. Y. 388; Dagett v. Champney, 122 N. Y. App. Div. 254; Welcome v. Hess, 90 Cal. 507. • Clendenning v. Lindner, 9 N. Y. Misc. 682; Gray v. Kaufman Dairy & ing the term; and there is no duty, express or implied, on the landlord to protect that property for him. Therefore, while the general rule is that, in the absence of express agreement affecting the matter, the landlord may let the premises to another and credit the rent money received on the account of the original lessee, he is not obligated to do so.2 And a few cases have even held that he has no right to do this, without the vacating tenant's consent.3 But some of the highest authorities, including the Supreme Court of the United States, have qualified the generally accepted rule by holding that, where the lease provides that the landlord may relet the premises in case they become vacant by the tenant's removal for any cause, the former is impliedly bound also to do this; and, if he fail in this duty, he must credit to the account of the tenant what might fairly have been obtained by a proper letting of the premises to another.1 § 654. Termination of Estate for Years by Eminent Domain or Other Public Act. The taking of the entire leasehold property by eminent domain, necessary exercise of police power, or other act of public authority, usually results in a termination of the tenancy. This is not, technically speaking, an eviction; since the tenant is generally compensated for his loss, and it is not accurate to say that the taking is by virtue of any title. It simply results from the exercise of a paramount right or authority. In case of condemnation proceedings, the general rule is that the tenancy ends when the proceedings are complete; and this is ordinarily at the time when the report of the commissioners, who assess the damages, is confirmed by the Ice Co., 162 N. Y. 388; Merrill v. Willis, 51 Neb. 162; Chaplin, Landl. & T. § 208. 1 Ibid. 2 There is no analogy here between the law of landlord and tenant and that of master and servant. A servant wrongfully discharged must endeavor to obtain other similar employment, in order to mitigate damages against the master. Beckham v. Drake, 2 H. L. Cas. 579, 607; Polk v. Daly, 4 Daly (N. Y.), 411; Markham v. Markham, 110 N. C. 356; Petersen v. Mayer, 46 Minn. 468. But the law places no similar duty, of decreasing damages by reletting, on a lessor whose tenant has vacated the property or ineffectually sought to sur- 3 Mackellar v. Sigler, 47 How. Pr. (N. Y.) 20; Gray v. Kaufman Dairy & Ice Co., 162 N. Y. 388; Chaplin, Landl. & T. p. 163. 4 International Trust Co. v. Weeks, 203 U. S. 364; Rich v. Doyenn, 85 Hun (N. Y.), 510; Wood v. Welz, 40 N. Y. App. Div. 202. 5 Barclay v. Picker, 38 Mo. 143; 2 Taylor, Landl. &. T. § 519. 6 Folts . Huntley, 7 Wend. (NY.) 210; Gluck v. Mayor, 81 Md. 315. court. Both lessor and lessee are compensated for their respective interests, by the public, or the party taking the property; and the landlord can not recover rent return that would have accrued after such total taking.2 But when by the terms of the lease rent is payable in advance, the lessee's obligation to pay an instalment that has become due is not affected by subsequent completion of the condemnation proceedings, though the latter event occur before the expiration of the period for which the rent accrued. According to the weight of authority, unaffected by statute, a taking of only a part of the demised property by virtue of public authority does not terminate the lease, either wholly or partly, and the relation of landlord and tenant is left unaffected; but compensation is made to each of them for the loss thus sustained by him. This is sometimes modified by statute, however, and in some jurisdictions by the courts, so that such a taking terminates the lease pro tanto and causes an apportionment of the rent.5 (a). (a) In New York City, this is the result of § 996 of the city charter (L. 1897, ch. 378), which was formerly § 982 of the Consolidation Act (L. 1882, ch. 410). The same section also declares, that, when all of leased property is taken for public use, the lease, and all the covenants, contracts, and engagements between the landlord and tenant shall "cease and determine and be absolutely discharged." See also L. 1897, ch. 378, § 980; L. 1882, ch. 410, §§ 973, 977-981; Matter of Daly, 29 App. Div. 286; Lodge v. Martin, 31 App. Div. 13; Matter of William & Anthony Streets, 19 Wend. 678; Gillespie v. Thomas, 15 Wend. 464. 1 Last two preceding notes; Edmonds v. Boston, 108 Mass. 538. Lodge v. Martin, 31 N. Y. App. Div. 13; O'Brien v. Ball, 119 Mass. 29; Corrigan v. Chicago, 144 Ill. 537. A tenant who, by express agreement, takes a lease subject to the contingency of its loss through eminent domain, is held in New York not to be entitled to any compensation when it is so taken. Matter of Mayor of New York, 168 N. Y. 254. Giles v. Comstock, 4 N. Y. 270; Gugel v. Isaacs, 21 N. Y. App. Div. 503; Chaplin, Landl. & T. p. 463. Folts v. Huntley, 7 Wend. (N. Y.) 210; Parks v. Boston, 15 Pick. (Mass.) 198; Fotterall v. Armour, 218 Pa. St. 73; Foote v. Cincinnati, 11 Ohio, 408; Stubbings v. Village of Evanston, 136 Ill. 37; Corrigan v. City of Chicago, 144 Ill. 537; McLaren v. Spaulding, 2 Cal. 510. 5 N. Y. City charter (N. Y. L. 1897, ch. 378), § 996; Gillespie v. Thomas, 15 Wend. (N. Y.) 467; Matter of Daly, 29 N. Y. App. Div. 286; Uhler v. Cowen, 192 Pa. St. 443; Kingsland v. Clark, 24 Mo. 24; Commissioners v. Johnson, 66 Miss. 248. CHAPTER XLIV. (2) ESTATES FROM YEAR TO YEAR, AND FROM QUARTER TO QUARTER, FROM MONTH TO MONTH, ETC. FROM PERIOD TO - Kinds. - An § 655. Origin and Nature of such Estates estate at will is one that, at common law, may be terminated at any time by either landlord or tenant.1 It was early known to the courts; but its precarious character always made it objectionable to them. Its sudden ending, by the act of one party against the wish of the other, may cause the latter great damage, for which the common law originally gave him no redress. Therefore, by what may fairly be called a process of judicial legislation, holdings to which no definite limits were given by express contract were taken out of the category of estates at will, when the courts could imply an agreement as to time, either from the character of the occupancy, or from the method of payment for the use of the land. Hence, as early as the time of Henry VIII., arose estates from year to year, from quarter to quarter, from month to month, from week to week, etc.3 In order of importance, these forms of interests in realty are next to estates for years. An estate from year to year is one held for a year certain, and to continue for another year, and another, and so on, in the 1 See ch. xlv. infra. 2 Roe v. Lees, 2 W. Blackst. 1171; Cattley v. Arnold, 1 Johns. & H. 651, 656; Jackson v. Wilsey, 9 Johns. (N. Y.) 267; Griswold v. Town of Bradford, 68 Atl. Rep. 987 (Conn.); Hey v. McGrath, 81 Pa. St. 310; 1 Taylor, Landl. & T. $ 55. 8 Ibid.; Co. Lit. 55 a; Right v. Darby 1 T. R. 159; Leavitt v. Leavitt, 47 N. H. 329; Smith, Landl. & T. 8. etc. absence of some act to terminate it at the end of one of the years. Likewise, an estate from month to month is one to continue for a month certain, and if nothing be done to end it, for another month, and so on month by month.2 And the same is true of a tenancy from week to week, or from day to day.3 The estates of the lesser periods here named-those from quarter to quarter, from month to month, from week to week, are the same kinds of interests as estates from year to year, except as to time; their incidents are substantially the same, and they are all grouped generally under the same heading. The law does not regard any of these estates as an interest terminating at the end of each of its periods and recommencing an estate from year to year does not end at the close of the first year, and start on the second, but it is a continuing interest growing from year to year, as the parties (by not terminating it) let it advance; and the same is true of an estate from quarter to quarter, or from month to month, or from day to day.5 Therefore, the landlord does not become responsible, at the beginning of each new period, for the condition of the premises at that time; as he would become if the law regarded the holding in each new period as in substance under a new lease.6 § 656. How such Estates (from Period to Period) are Created. -An estate from year to year may be made, of course, by express agreement of the parties; as, for example, by a contract that the tenant may hold from year to year, from one year to another, until the letting is duly terminated. Such direct crea 1 Richardson v. Langridge, 4 Taunt. 128; Oxley v. James, 13 M. & W. 214; Pugsley v. Aiken, 11 N. Y. 494; 4 Kent, Com. p. 114. Such an estate seems to be unknown, at least as made by implication of law, in Maine and Massachusetts. Withers v. Larrabee, 48 Me. 570; Ellis v. Paige, 1 Pick. (Mass.) 43. 2 Anderson v. Prindle, 23 Wend. (N. Y.) 616; Steffens v. Earl, 40 N. J. L. 128; London & San Francisco Bk. v. Curtis, 27 Wash. 656; 1 Taylor, Landl. &T. § 57. This holding, from period to period, made by implication of law, must be carefully distinguished from a short tenancy, as for one month, which is expressly renewed from period to period. The latter is an estate for years, and is unaffected by the rules as to notice, etc., which are explained hereafter in regard to tenancies from period to period. Wilson v. Taylor, 8 Daly (N. Y.), 253; Steffens v. Earl, 40 N. J. L. 128; Searle v. Powell, 89 Minn. 278. 8 Ibid.; Bowen v. Anderson (1894), 1 Q. B. 164; Lane v. Ruhl, 94 Mich. 474. 4 Last three preceding notes; Anderson v. Prindle, 23 Wend. (N. Y.) 616; Steffens v. Earl, 40 N. J. L. 128; Hollis v. Burns, 100 Pa. St. 206. 5 Ibid.; Oxley v. James, 13 M. & W. 214; Cattley v. Arnold, 1 Johns. & H. 651; Bowen v. Anderson (1894), 1 Q. B. 164; Laughran v. Smith, 75 N. Y. 205; Harvey v. Gunzberg, 148 Pa. St. 294. See Gandy v. Jubber, 5 B. & S. 78; Adams v. City of Cohoes, 127 N. Y. 175. 6 Ibid. 7 Doe v. Green, 9 Ad. & E. 658; Pugsley v. Aikin, 11 N. Y. 494. |