271 F. 620 | 8th Cir. | 1921
The plaintiff in error (hereafter called plaintiff) by an instrument in writing leased a large tract of land in North Dakota to the defendant in error (hereafter called defendant) for a term "of years. Plaintiff brought this action, claiming that the defendant had violated the covenants of the lease. The defendant took issue, and pleaded a set-off. A verdict was directed in favor of the defendant for the amount of his set-off, less a small item of damage allowed to plaintiff, and plaintiff prosecutes this proceeding in error.
The specifications of error relate to rulings of the court in refusing to allow plaintiff to make proof under the first count of his complaint, refusing to allow an amendment to that count, and in refusing to submit to the jury the evidence under the second count in the complaint. After some evidence had been offered by the plaintiff, the court sustained an objection to the introduction of evidence under the first count in the complaint, upon the ground that no cause of action was stated in that count. That count alleged the execution of a written lease of the lands from plaintiff to defendant for a period of five years ending April 1, 1917. The lease was set forth, and among its covenants was the following agreement on the part of the defendant:
“That ho will use all lands under ditches, and all that part of the above-described land which is under irrigation, for cutting and making hay alone, and that he will use no part of the land under ditches, or irrigated, at any time or during any part of any year, for pasturing horses and cattle.”
It was alleged that the defendant occupied these lands under, this lease for the five years, and after April 1, 1917, and that he caused plaintiff injury and damages, because in violation of the terms of the
“Any person owning or having in his charge or possession any Horses, mules, cattle, goats, sheep or .swine, which shall trespass upon the lands of another, whether fenced or not fenced, shall be liable to the party injured for all damages sustained by him by reason of such trespassing, to be recovered in a civil action in the county in which such damages occurred, and the proceedings shall be the same in all respects as in other civil actions except as herein modified: Provided, that no property shall be exempt from execution issued upon judgments obtained under this chapter except absolute exemptions: And provided, further, that the party claiming damages under the-provisions of this chapter shall bring an action to recover the same within sixty days after the infliction of' such dámages.”
Other related sections (sections 8501-8506) allow the person injured to keep the offending animals in custody until the damages are paid or security is given, and for a lien upon the animals for the damages, recovered. It was the view of the court that the plaintiff sought recovery under this statute, and that it afforded him the exclusive ground of recovery, and that the action had not been brought within the period of 60 days limited by the statute for beginning suit. The effect of the North Dakota statutes to which reference has been made has been considered by the Supreme Court of that state in the case of Schneider v. Marquart, 178 N. W. 195, and it was held'that they applied only to. cases where the person injured has seized the cattle and seeks to impress a lien upon the offending animals. We are satisfied with the con-, struction thus given to the statute. The plaintiff in this case was not seeking- any such a remedy. The first count of his complaint stated a cause of action for injury done to his lands in violation of the covenants of the written lease, and alleged as occurring before the expiration of its term. The court was in error in sustaining, the objection to, evidence upon the theory that the first count of the complaint stated no-cause of action.
As to the lessee’s liability for the condition of other portions of the leased premises, there was an expressed exception because of wear and tear and reasonable use, and damages by the elements; but the covenant relating to the irrigation system, and the dams which were a part of it, was an absolute obligation to keep them in repair, and no exception was stated. There is significance in the contrast of these covenants. It is true that other of the covenants, if they stood alone, were broad enough in language to include the irrigation, system; but such general provisions must yield, to a specific covenant, which singled out the irrigation system for special consideration.
There is another reason why the exceptions in the other covenants should not be read into the covenant relating to the dams and the irrigation system. The dams were made by throwing an embankment of earth across the streams, and the irrigation ditches were cut in the fields. The chief danger to the dams was the action of the elements, the floods arising from high water, and the action of animals such as muskrats in boring into the dam. The chief danger to the irrigation ditches was the ordinary filling of them, because the surrounding soil was carried into them. To allow an exception because of the ordinary wear and the action of the elements would therefore practically nullify the covenant to repair.
The parties also placed an agreed construction on the covenant, for the tenant replaced the. dam when it was washed out by a flood in 1915, after muskrats had been working in the banks; and when it was again washed out in 1916 from the same causes, the plaintiff demanded that the defendant rebuild, and the defendant agreed to do the filling for a new dam, and the defendant testified that he had always been anxious- and willing to pay for the dim. For these reasons the covenant must be regarded as an express covenant to repair.
The judgment will be reversed, and a new trial awarded.