The foundations and walls of a building, the different floors of which are leased to different tenants, cannot be regarded as in the possession of the landlord within the rule that he is liable for injuries to the tenants through defects in portions of the building remaining within his possession ; Miles v. Tracey, 89 S. W. •128, 28 Ky. L. Rep. 621, 4 L. R. A. (N. S.) 1142. Such a landlord is not liable to the tenant of the lower floor for injuries to his stock from water from a closet which overflows because of the ten ant's negligent use of it; Lebensburger v. Scofield, 155 Fed. 85, 86 C. C. A. 105, 12 L. R. A. (N. S.) 1025. The landlord of a tene ment building is liable to the tenant for the defective condition of the roof, where such tenant was obliged to use it for the purpose of drying clothes ; Karlson v. Healy, 38 App. Div. 486, 56 N. Y. Supp. 361; where the main wall of a tenement house fell and injured the property of one of the tenants, it was held that such tenant might not recover in the absence of an express covenant that the landlord will keep the leased premises in repair ; Ward v. Fagin, 101 Mo. 669, 14 S. W. 738, 10 L. R. A. 147, 20 Am. St. Rep. 650.
The duty of the owner of an office building to keep in proper condition the common por tions retained in his possession does not ex tend to keeping outer doors unlocked on Sunday to enable tenants to remove large pieces of furniture in case of fire ; Whitcomb v. Mason, 102 Md. 275, 62 Atl. 749, 4 L. R. A. (N. S.) 565; tenants occupying offices on the second floor of an office building are entitled to enjoin the tenant on the ground floor from obstructing the entrance to the block by the erection of signs and showcases ; Miller v. Dry Goods Co., 62 Neb. 270, 86 N. W. 1078. A landlord is not liable for a hidden defect in a gutter on the property ; Shute v. Bills, 191 Mass. .433, 78 N. E. 96, 7 L. R. A. (N. S.) 965, 114 Am. St. Rep. 631. In an action by lessee for breach of a covenant in a lease, to repair, the measure of damages is the dimin ished rental value by reason of the failure to make the repairs ; Biggs v. McCurley, 76 Md. 409, 25 Atl. 466.
The principal obligations on the part of the landlord are: (1) That the tenant shall enjoy quiet possession of the premises, which means that he shall not be evicted by one having a title paramount to the landlord, or the latter shall not render his occupation un comfortable by causing or maintaining a nui sance on or about the premises. This cov enant is implied from the 'operative words of a lease and is sometimes specially insert ed; Mayor, etc., of New York v. Mabie, 13 N. Y. 151, 64 Am. Dec. 538 ; Crouch v. Fowle, 9 N. H. 219, 32 Am. Dec. 350; Bayes v. Loyd [1895] 2 Q. B. 610; under this covenant the landlord is not liable if the tenant be ousted by a stranger ; Moore v. Weber, 71 Pa. 429, 10 Am. Rep. 708; Kimball v. Masters of Grand Lodge of Masons, 131 Mass. 59. But in Mershon v. Williams, 63 N. J. L. 398, 44 Atl. 211, it was held that such an implied covenant will arise only from the words "de mise" or "grant" and not from the words "to let" and "to lease" or from the mere relation of landlord and tenant. (2) The payment of
all arrears of ground rent or interest on liens, for which the tenant has no liability unless he expressly assumes it ; Earle v. Arbogast, 180 Pa. 409, 36 Atl. 923 ; and the same rule applies to taxes, which are usually chargeable to the landlord ; Leache v. Goode, 19 Mo. 501; and as to which special cove nants are not uncommon ; such covenant was held to cover such taxes as were chargeable on the premises at the time of making the lease; Watson v. Atkins, 3 B. & Ald. 647 ; but in another case a covenant to pay all rates, taxes, etc., was held to cover an extra ordinary assessment for sewers ; Waller v. Andrews, 3 M. & W. 312.
There is no implied warranty on the part of the landlord that the premises are safe or reasonably fit for habitation, for the purpose for which they are intended; Roth v. Adams, 185 Mass. 341, 70 N. E. 445 ; Dut ton v. Gerrish, 9 Cush. (Mass.) 89, 55 Am. Dec. 45 ; Bennett v. Sullivan, 100 Me. 118, 60 Atl. 886 ; Howell v. Schneider, 24 App. D. C. 532 (it is for the tenant to examine) ; Carey v. Kreizer, 26 Misc. 755, 57 N. Y. Supp. 79; Doyle v. R. Co., 147 U. S. 413, 13 Sup. Ct. 333, 37 L. Ed. 223 (where it was held that the lessor was not bound to notify the tenant of the danger of snow slides); unless the building constitutes a public nui sance or the lessor conceals defects so as to amount to fraud; Steefel v. Rothschild, 179 N. Y. 273, 72 N. E. 112, 1 Ann. Cas. 676 ; Wilcox v. Cate, 65 Vt. 478, 26 AU. 1105 ; but the landlord may be liable for an injury to a passer-by due to a defect existing when the house was let ; Bowen v. Anderson, [1894] 1 Q. B. 164; and see Perrett v. Dupre, 3 Rob. (La.) 52, where it was held that a lessor is bound to keep the premises in a condition fit for the purpose for which they were leased, and if he fail to make the nec essary repairs the tenant may make them and charge .them. But where a building is let to different tenants the landlord is charg ed with the duty of keeping the halls and those portions of the building which are for the common use of the tenants in safe condition and properly furnished with light at night ; Gleason v. Boehth, 58 N. J. L. 475, 34 Atl. 886, 32 L. R. A. 645 ; but he was held not required under all circumstances to light the halls ; Gorman v. White, 19 App. Div. 324, 46 N. Y. Supp. 1; nor is he under any general duty to do so unless their construc tion is unusual or peculiar so as to render light necessary ; Brugher v. Buchtenkirch, 29 App. Div. 342, 51 N. Y. Supp. 464. So he must guard an elevator shaft if rented to different tenants ; Malloy v. Real Estate Ass'n, 13 Misc. 496, 34 N. Y. Supp. 679 ; or retains control of a portion of the premises ; Davis v. Power Co., 107 Cal. 563, 40 Pac. 950, 48 Am. St. Rep. 156. He is liable where the premises were let with a nuisance which caused an injury to a third person ; City of Denver v. Soloman, 2 Colo. App. 534, 31 Pac. 507; McGrath v. Walker, 64 Hun 179, 18 N.