Bauer v. Knoble

Vanderburgh, J. The complaint for forcible detention of leased premises alleges that the defendant, by his lease, agreed to well and faithfully till and farm during the term of the lease the leased premises according to the usual course of husbandry; and in the lease offered in evidence it is provided that the defendant should have “the privilege of using for fuel only fallen down trees, and [359] not to take green trees on said premises.” The complaint also shows that the defendant “has violated the terms of the lease, and has committed waste on the said real estate, by digging up, cutting down, and removing green and growing timber on said land, and by removing the granary and chicken house thereon.” The lease was for a term of five years, and contains no provision for the termination of the lease, for a breach of the covenants therein, or for the commission of waste. The statute (1878 G. S. ch. 84, § 11) provides that when any person holds over any lands or tenements contrary to the conditions or covenants of the lease or agreement under which he holds, complaint may be made for unlawful detainer under the statute. We think no case is made under this section, either by the complaint or evidence. The holding over must be after a determination of the lease by a forfeiture or in pursuance of a proviso in the lease giving a right of re-entry. A mere breach of covenant does not work a forfeiture or give a right of re-entry; and where there is no forfeiture or right of re-entry, the holding cannot be said to be contrary to the conditions or covenants of the lease. The lessor, having the jus disponencli, may annex to the grant whatever conditions he please in respect to re-entry or the termination of the lease; and upon the breach of such conditions, subject to statutory provisions, may avoid the lease. Woodf. Landl. & Ten. § 181. It is clear that there are no such conditions or provisos in this lease, and this summary remedy cannot be invoked. Pickard v. Kleis, 56 Mich. 604, (23 N. W. Rep. 329 ;) Langley v. Ross, 55 Mich. 163, (20 N. W. Rep. 886.) And the extent of the alleged waste does not bring the case within the provision of 1878 G. S. eh. 75, § 45, in respect to a forfeiture for waste. Order affirmed. (Opinion published 53 N. W. Rep. 805.)