#### S. I. BLOMBERG v. HOBART EVANS.

(Filed 25 June, 1927.)

Landlord and Tenant — Ejection—Partial Eviction — Reduction of Rent— Burden of Proof — Evidence.

In order for the defendant, in summary action of ejectment, to retain possession for partial eviction of the leased premises by paying relatively a reduction in the rental price fixed by his contract, he must prove that such eviction was caused by the plaintiff, or one acting under his authority, or one paramount in title, and upon failure of evidence of this character, his claim therefor is properly denied as a matter of law.

*114Appeal by defendant from judgment of *Schench, J.,*at November Term, 1926, of Btocombe.

No error.

Proceeding for summary ejectment, begun on 15 September, 1926, in tbe court of a justice of tbe peace of Buncombe County, and tried upon defendant’s appeal from judgment therein rendered to tbe Superior Court of said county.

From • judgment on tbe verdict defendant appealed to tbe Supreme Court.

*B. B. Williams for plaintiff.*

*Wells, BlacJcstoch & Taylor for defendant.*

CoNNOR, J.

On 15 September, 1926, and for some time prior thereto, defendant was in possession of a two-story brick building, situate on a lot in tbe city of Asheville, N. C., as tenant of plaintiff, bolding under a written lease, dated 25 February, 1924. Defendant failed to pay tbe rent stipulated in said lease for tbe month of July, 1926, and due on tbe first day of said month. His term under said lease did not expire until 31 December, 1927; it is expressly provided therein, however, that upon defendant’s failure or neglect to pay tbe rent monthly as same shall become due, be shall forfeit all rights under tbe lease, and plaintiff may enter upon tbe premises and expel defendant therefrom.

The monthly rental stipulated in tbe lease is $125. Defendant paid said sum for each month, included in bis term under tbe lease, prior to 1 July, 1926; on said day be sent to plaintiff, by mail, bis check for $80, as rent for tbe month of July, due on said day. Plaintiff declined to accept said cheek, and thereupon notified defendant that unless be paid tbe monthly rent stipulated in tbe lease, to wit, $125, for tbe month of July, be would institute proceedings for bis summary ejectment from tbe premises. Defendant refused to pay said sum, and also refused to surrender possession to plaintiff.

This proceeding was begun on 15 September, 1926, in the court of a justice of tbe peace of Buncombe County. Judgment was therein rendered that plaintiff recover of defendant possession of tbe premises described in tbe lease, and also tbe sum of $125, as rent for tbe month of July, 1926, and bis costs. O. S., 2365, *ei seq.*Upon defendant’s appeal from this judgment to tbe Superior Court of Buncombe County, there was a verdict in accordance with plaintiff’s contentions. From judgment on this verdict defendant appealed to this Court.

In defense of plaintiff’s recovery in this proceeding, defendant alleges that during tbe month of June, 1926, be was partially evicted from tbe premises which be held under tbe lease, as tenant of plaintiff; be contends that be is entitled to an abatement of tbe rent due for tbe month *115of July, and for each subsequent month included in bis term, because of s'ucb partial eviction. He contends further that having tendered plaintiff his check in payment .of the full amount which he should be required to pay as rent for the months of July, August and September, after such abatement, he was entitled to possession of the premises under his lease, and that, therefore, plaintiff is not entitled to recover in this proceeding.

Upon his appeal to this Court, defendant assigns as error the refusal of the trial court to submit issues tendered by him, in accordance with his'allegation, and also the instructions of said court to the jury, upon the issues submitted, for that said instructions denied him the right, as he contends, to have the jury consider and pass upon the matters involved in his defense.

There was no conflict in the evidence. All the evidence, which consisted of the testimony of plaintiff and defendant, each testifying as a witness in his own behalf, tended to show the facts to be as follows:

The subject-matter of the lease as described therein is “a certain lot, with building thereon, in the city of Asheville, Buncombe County, North Carolina, situate on the west side of and known as No. 11 Southside Avenue, together with all.the privileges and appurtenances thereunto belonging or in any wise appertaining.”

The lot is at the intersection of Southside Avenue and Church Street; it has a frontage of approximately 55 feet on Southside Avenue and a general depth of about 85 feet. It is triangular in shape, and very narrow at the back, running to a point. At the date of the lease, when defendant entered into possession of the lot and building thereon, there was a mountain, or high hill, lying to the north of the lot, known as “The Buxton Hill Property.” An alleyway 20 or 25 feet wide had been constructed along the side of the mountain, immediately to the north of the lot. There was no evidence tending to show by whom the •alleyway was constructed, or whether or not it was a public alleyway or street.

The building on this lot fronted on Southside Avenue, and covered almost the entire lot. It was a two-story brick building, and was constructed originally and leased by defendant as a garage or repair shop for automobiles. A bridge or ramp had been constructed from the alleyway on the north side of the lot to the second story of the building. This bridge or ramp was used for running automobiles from the alleyway into the second story of the building. No other means was provided for that purpose. Without the bridge or ramp, the second story could not be used as a garage or automobile repair shop, the purpose for which defendant leased the building.

*116In June, 1926, tbe owners of “Tbe Buxton Hill Property” cut down and excavated tbe mountain lying to tbe north of tbe .lot. Tbe alleyway was graded down by them so that it was no longer on a level with tbe second story of tbe building. As a result of tbis work, tbe bridge or ramp was destroyed, leaving no means of using tbe second story of tbe building for tbe purpose for wbicb tbe building was constructed, and leased by defendant. Plaintiff bad nothing to do with tbe excavation of tbe mountain side, tbe grading down of tbe alleyway, or tbe destruction of tbe ramp. Plaintiff, when requested by defendant to put an elevator in tbe building, so that tbe second story might continue to be used as a garage, declined to do so. He offered, however, to release defendant from payment of rent under bis lease, provided defendant would surrender tbe possession of tbe premises. Tbis defendant declined to do.

There was no evidence that tbe destruction of tbe ramp on tbe demised property was sanctioned or authorized by plaintiff, or that tbe owners of said Buxton Hill property bad any paramount title to tbe demised premises or any part thereof, or that said work was done under authority of tbe city of Asheville, in tbe exercise of its right of eminent domain.

In tbe absence of evidence tending to show that tbe change in tbe conditions of tbe demised premises, subsequent to tbe date of tbe lease, and defendant’s entry thereunder, depriving defendant as lessee of tbe use, occupation and enjoyment of a substantial part thereof, was caused by plaintiff as lessor, or by some one who bad paramount title thereto, there was no error in bolding that defendant was not evicted from said premises or from any part thereof, and that defendant could not, therefore, invoke tbe law as declared in *Poston v. Jones,*37 N. C., 350, in support of bis contention that be was entitled to an abatement of bis monthly rental.

“Eviction” is defined as “anything of a grave and permanent character done by tbe landlord or those acting under bis authority with tbe intention and effect of depriving tbe tenant of tbe use, occupation and enjoyment of tbe demised premises, or any substantial part thereof, or tbe establishment or assertion against tbe tenant of a title paramount to that of tbe landlord.” 36 C. J., 255, sec. 979. “An eviction of tbe tenant by a wrongdoer or trespasser without title, not acting under authority from tbe landlord does not affect tbe continuing liability of tbe tenant to bis landlord for rent.” 36 O. J., 313 and cases cited in N65.

In *Poston v. Jones, supra,*it is said: “In every lease of land tbe lessor is so far bound, by implication for tbe title and enjoyment by tbe lessee that bis right to tbe rent is dependent thereon; and if tbe tenant be evicted from tbe demised premises tbe rent is thereby suspended. So if tbe lessee be evicted from a part of tbe land demised, by a stranger *117on title paramount, it operates as a suspension of tbe rent *pro tanto,*and tbe rent is apportioned and payable only in respect of tbe residue.”

In tbe instant case'there is no evidence from wbicb tbe jury could find tbat defendant was *evicted*from tbe premises or from a substantial part thereof, by plaintiff, or by any one whose title was paramount to tbe title of plaintiff; nor is there evidence tbat tbe excavation of tbe “Buxton Hill Property” or tbe grading down of tbe alleyway, or tbe destruction of tbe bridge or ramp was done by tbe “Buxton Hill” people under authority of tbe city of Asheville.

Plaintiff offered to release defendant from payment of rent under bis lease, provided defendant would surrender tbe possession of tbe property. Defendant insisted upon retaining possession under bis lease. There was no error in bolding tbat upon all tbe evidence be was not entitled to an abatement of bis rent because of a partial eviction. Tbe judgment is affirmed.

No error.