40 Minn. 106 | Minn. | 1889
The defendant leased from the plaintiff, for a term of years, the first story and basement of a brick building in the city of St. Paul. The lease contained the following provision, to wit: “If at any time during said, term the demised premises shall be rendered partially untenantable by fire or the elements, but so that the business then being done therein can be successfully conducted therein
The sole question is whether, upon these facts, the basement was rendered untenantable “by the elements,” within the meaning of the lease.
The terms "the elements,” and “damage by the elements,” are somewhat uncertain and indefinite expressions, and very little aid will be derived from ■ resorting to any technical or scientific discussion of the meaning of the word “elements.” We should rather look to see whether the word has received any fixed and accepted meaning in the language of leases, and take the contract by its four corners, and try to ascertain how such an expression would be ordinarily understood by conveyancers and business men. The expression “by fire or the elements” occurs twice elsewhere in this lease. Immediately preceding the provision quoted is one to the effect that if the premises shall at any time during the term be rendered wholly untenantable “by fire or the elements,” and the injured premises can be rebuilt or repaired within three months, then the lessor is to rebuild or repair, if the lessee shall so request, “within ten days after such occurrence,-” otherwise such occurrence shall operate to terminate the lease. It is apparent that the expression, “by fire or the elements,” is used in the same sense in both instances. The lease also contains a covenant on part of the lessee to surrender the premises at the expiration of the term in as good condition as the same were in when occupation under the lease began, usual wear and tear
The lease contains no covenant on part of the lessor to make repairs, except those above quoted, and hence he was not bound to do so, much less to make improvements or betterments; the policy of the law being to require the tenant, before he takes a lease, to examine the premises, and elect, once for all, whether they will suit his purposes. While the finding is silent upon the subject, it is fair to assume that the percolation of water into the basement was not the result of any extraordinary or unusual occurrence, such as a flood or freshet, or of any cause originating subsequent to the demise, but was the natural result of a cause fully existing at and prior to the date of the lease, such as the wet or springy character of the soil on which the building is erected, or that adjacent, or some inherent defect in the plan of its structure, as the lack of proper drains to carry off the water of the oozing springs. In such a case, although the existence of the cause or its effects may not have developed until subsequently during a wetter season of the year, yet the efficient cause existed at the date of the demise, and the results were but the natural and ordinary operations of the laws of nature. To remedy such a defect would not in any proper sense be repairs, but a betterment,— putting the building in better cóndition than it in fact was when demised.
It can hardly be said that the parties intended by these clauses of the lease literally to include every case of untenantableness or partial untenantableness “by the elements.” Every case of damage to or destruction of human structures, not caused by animal force, may, in one sense, be said to be caused by the elements, as, for example, ordinary gradual decay. But it would hardly be claimed that such a case would be within the meaning of the provisions of the lease. Or suppose, because of the manner of its construction, it should have proved, when winter arrived, that the basement was untenantable because of the cold, it would scarcely be urged that this came within the terms of the lease. We think that,the language of the lease refers only to some sudden, unusual, or unexpected action of the ele
Defendant attempts to support its contention by arguing that if the untenantableness of the basement was not caused “by the elements,” within the meaning of this provision of the lease, then it is not an injury by the elements, within the meaning of the exception in the “surrender” clause, and consequently it would be bound to repair or remedy the defect, which it is claimed would be unreasonable. But to our minds the force of the illustration is directly against the defendant. Under this covenant, the tenant is not required to make betterments, or to surrender the premises in better condition than when he entered, or to remedy defects then existing, which he clearly would if he was compelled to change the building so as to prevent the percolation of water into the basement. Our conclusion is in accordance with the views of the court below, viz., that the.damage occasioned by the percolation of water through the side walls was not caused “by the elements,” within the meaning of the lease.
Judgment affirmed.