Morse v. Maddox

| Mo. | Mar 15, 1853

RylaND, Judge,

delivered the opinion of the court.

This case depends upon the construction of the article of agreement between the parties. The court below construed this agreement as one binding on Maddox to furnish sufficient water power for the driving of the plaintiff’s wheel, in order to operate his machinery in making saddle-trees. The instructions given to the jury tell them that “ Maddox was bound to furnish to Morse sufficient water power to drive a wheel to operate his saddle-tree, factory; and the only condition was, that Morse was not to use that power so as to interfere with Maddox’s grist-mill. If, then, Morse, upon the faith of this obligation of Maddox, proceeded.to and did erect buildings and machinery to carry on the saddle-tree business, and if Maddox did suffer his dam to get so low and leaky that it furnished insufficient power, so that Morse could not operate his wheel profitably, and, in -consequence, had to abandon his business, then Maddox is liable in damages for the value of the buildings erected by Morse, and for losses sustained in selling his machinery ; that Maddox was bound to keep his dam in the condition it was at the time of the contract, and if he failed to do so, he is liable to Morse for whatever damages he may have sustained. The defendant ashed the court to instruct the jury that, by the terms of the contract, Maddox was under no obligation to keep his dam at any particular height or to keep any particular head of water; and, unless the jury shall find that Maddox, by his own act, lowered the dam so as to prevent Morse from carrying on his business, they must find for the defendant. This the court refused to give.

1. In the opinion of this court, the court below erred in its construction of the agreement between these parties. Maddox grants, leases and rents his farm’for five years to Morse ; also, “water privilege by and through the saw-mill flume or forebay, out of the mill-pond in some way, for driving or turning a wheel to drive a saddle-tree manufactory.” “ Said Morse, with his wheel or water privilege, not to interfere with or injure the grist-mill in any way.” There can be no doubt as to this agreement. It -was alease of the farm with the privilege o f using the water from the pond. There is no undertaking what the supply of water shall be ; no undertaking to keep the mill-dam in repair ; no undertaking to furnish a sufficiency of water. The privilege barely of using the water from the millpond through the flume, or in some other way, was granted. There was no undertaking on the part of Maddox to keep the water at a certain height in the dam.

In Pomfret v. Ricroft, 1 Saund. 321, it was held, that “ if lease be made of a house and piece of land, except the land on which a pump stands, with the use of the pump, the lessee may repair the pump, but no action of covenant lies against the lessor for not repairing it.” In this case, Twysden, justice, differed from the other judges, Kelynge, Rainsford and Morton, and the plaintiff had judgment; but this was afterwards reversed in the exchequer chamber, by the whole court, and reversed for the reasons given by Twysden, who said that, where a man grants a water course and afterwards stops it, or demises a house and estovers and afterwards destroys the wood, in such cases the party grieved shall have his remedy by action of covenant; for these are wilful acts of the lessor or grantor, and it is a misfeasance in him to annul or avoid his own grant. But in this case there is no misfeasance, but only a nonfeasance, for which no action lies. As, in the case where I grant a way over my land, I shall not be bound to repair it; but if I voluntarily stop it, an action lies against me for the misfeasance ; but, for the bare nonfeasance, viz., not repairing it when it was out of repair, no action at all lies. In this case, Twysden further held, that the plaintiff, being the lessee, might, himself, have repaired the pump, for, although neither the soil itself, nor the pump be granted to him, yet, by the grant of the use of the pump, the law has given to him this liberty ; for, when the use of a thing is granted, every thing is granted by which the grantee may have and enjoy such ttse. See, also, the case of Rhodes v. Bullard, 7 East. 116.

“In the absence of agreement, the landlord, for his own sate, will generally prevent the premises from running to decay; but he cannot be compelled to repair, even though the premises be destroyed by fire. So, where a house was demised, with use of pump, it was held, that an action of covenant could not be supported against the lessor for not repairing the pump, though the lessee, himself, might do what was necessary to secure his enjoyment of it.” 2 Platte on Leases, 183.

“ The landlord sometimes covenants that he will repair the premises, but, unless he bind himself by such express covenant, the tenant cannot compel him to repair. Therefore, if a lease be made of a house with the use of a pump standing on the lessor’s premises, the lessee has no remedy against the lessor for suffering the pump to be out of repair.” Coote on Landlord and Tenant, 227.

Thus we find the general doctrine on this subject. Now, under' this lease, the landlord was not bound to repair the mill-dam — not bound to keep a certain height of water in the dam. He grants the use of the water, or, rather, grants the privilege of using the water in the pond, through the flume or forebay, to tbe plaintiff, together with his farm; but the plaintiff, in using this privilege, is not to interfere with the defendant’s grist-mill. Applying the principles, long settled in similar cases, to this, and it is plain that the court below erred.

Before the defendant can be made liable to the plaintiff on this agreement, he must do some act by which the use of the water from the mill-pond is destroyed. It will not be enough that he fails barely to repair the dam ; his nonfeasance will not render him liable ; he must, by his actions, destroy or injure the plaintiff’s privilege to the use of the water.

The court below committed .error in- giving the instructions for plaintiff as above quoted; also, in refusing to give the instruction prayed for by the defendant.

The other judges concurring, tho judgment below is reversed and the cause remanded.