Waite v. O'Neil

• Citation: 72 F. 348
• Parties: WAITE et al. v. O'NEIL et al.
• Decision Date: 04 January 1896
• Court: United States District Courts. 6th Circuit. Western District of Tennessee

72 F. 348

WAITE et al. v. O'NEIL et al.

United States Circuit Court, W.D. Tennessee.

January 4, 1896

The plaintiff, for herself, and a guardian for her children executed to the defendants O'Neil & Co. a lease in the following words:

'LEASE.

'Charlotte H. Waite, for herself, and as guardian of her two minor children, of the first party, and O'Neil & Co.,-- firm composed of J. N. O'Neil, W. W. O'Neil, S. P. Large, and I. N. Large,-- of the second party, hereby enter into the following contract, viz.: The said first party, by these presents, leases to the said second party, from the first day of November, 1882, until the first day of October, 1889, the river front and landing in front of lots numbers (1, 2, 3, and 4) one, two, three, and four, in block No. one (1) South Memphis, with ample space for a roadway along the landing at all stages of the water, and no more; the said landing to be used by said lessees for the moving, storing, and unloading of coal wood, and ice barges or boats, but not to be used as a dump for scavenger or night-soil wagons or carts. Said parties of the second part are to have the privilege of renewing this lease until the majority of the youngest of said minors, provided suitable arrangements can be made with the oldest child, who will then be of age. And the said first party covenants that she will keep and secure said second party in the peaceful use and possession of said premises during the term of this lease, unless default of payment of rent or other condition of this contract be made. The said second party, for and in consideration of the use of said premises, agree to pay to said first party, or her assigns, the sum of six thousand two hundred and twenty-five dollars, payable in eighty-three monthly installments, for which eighty-three promissory notes for twenty-five dollars each, of date thereof, have been executed; and the second party agree to deliver up, to said first party or her assigns, the said premises, at the expiration of this lease, in good order and condition, and to make good all damages to said premises, except the usual wear and proper use of the same, and to keep the roadway thereon in repair, and also to remain liable for rent until all the premises, with the keys of the same, clear of all persons, goods, or things not belonging to the same, be tendered or delivered to said first party, her heirs or assigns, in like good order; and no demand or notice of such delivery shall be necessary. The second party agree that they will not underlet the whole or any part of said premises without the written consent of said first party or her assigns. It is further agreed that, in default of either one or more of said payments, or any part thereof, at maturity, or in case of underletting without authority, this lease may be declared forfeited by said first party, at her option, in which case the second party shall be liable for all rents until the possession be delivered, and for all damages done to the premises; and the first party shall have the right to re-enter, take, and retain possession of said premises without being required to make demand of the same, or demand the payment of rent due, or to give notice of the nonpayment of the rent; and the first party shall not become a trespasser by taking possession as aforesaid. No set-off in payment of said rent shall be allowed, unless signed by the first party, her agent, or assigns, and the said notes shall be full and complete evidence of the rent due and owing, and when no notes are given, the proof of the payment of rent shall be on the second party in all controversies. It is agreed that said premises are in good order and condition at the date of these presents. In case of default of the second party, so as to forfeit this lease in their absence from this state, service of process upon any adult occupying or in possession of the premises shall be good and valid service upon the second party. It is further agreed by the party of the second part that they will, if necessary, construct, at their own expense, a roadway, with boats, piling, or plank, along the river front of said lots, and to construct the same without unnecessary digging of the ground on said lots, and to maintain the same during the continuance of this lease. This lease to take effect upon the expiration of the lease held by Brown & Jones. Said second party stipulates not to commit, but to prevent, waste. It is further agreed that no alterations or repairs shall be done to any part of said premises by said second party, without the first party's consent, in writing, under the penalty of double the cost necessary to put the premises in the condition they were when leased to said second party; and the second party shall not, at any time, remove any permanent repairs, improvements, additions, or fixtures put on said premises. But the first party shall have and hold all of the same at the end of said lease. Said first party reserves the right to make such repairs at any time as are necessary to the security or preservation of said premises.

'In testimony whereof, the said parties have hereunto set their hands and affixed their seals, this 30th day of May, one thousand eight hundred and eighty-one.

O'Neil & Co. (Seal.) 'Charlotte H. Waite. (Seal.)

'Witnesses:

'Otto Seyppel.

'C. A. Le Clerc.' About the 1st of May, 1886, the lessees abandoned the use of the premises, and refused to pay the rent, which is still due upon the 41 notes exhibited with the bill. The reason for this abandonment is found in the fact that, some time prior thereto, the banks of the river, through the operation of the currents, began to cave away, and in April, 1886, the extraordinary flood then prevailing swept out of existence a large part of these lots and their river front, as it did much of the adjacent property. This caving was so serious that it amounted almost to a public calamity, and demanded and received at the hands of the property owners and the government of the United States costly efforts to restrain the ravages, that resulted to some extent favorably. The government engineer, in charge of the work by which the caving was arrested, testifies that the cost of putting in the dikes, mattresses, and other work was about $64,000, the most of which was subscribed by the property owners. The lots of plaintiff lie on the upper portion of the banks that were injured, and the most of this expenditure was probably upon that portion of the banks lying below her lots; but, taking it as an entirety, there can be no doubt, on the proof, but that the work done under the supervision of the government arrested the destruction by the river, and, together with the operation of natural causes, has saved what is left. There is a dispute in the record as to the subsequent character of this landing, in respect of its adaptability to the uses of the lessees; but I think it may be taken, as established by the proof, substantially, that the landing has never been fit for any further use by the lessees since the destruction began. It is not impossible that they might have still used it during the term of the lease, by the expenditure of considerable sums of money; but, in the view that the court has taken of the case, it may be taken as a fact that the property conveyed by the lease was no longer available for the use of the lessees. There is also a dispute in the proof as to whether or not the plaintiff agreed to contribute anything to a fund that was raised by the property holders to pay for the work which was done to arrest the ravages of the river, and counsel are disagreed as to the legal effect of such subscription, if any was made; but, again, it may be said that, in view of the rulings of the court upon the main issues of the case, this dispute of either fact or law is immaterial. The proof establishes, beyond controversy, that the destructive influences were beyond the control of a single property holder, and that the lessees could not, by the expenditure of any reasonable sum of money, have done anything to arrest the erosion caused by the currents of the river, which destroyed their property and that of the plaintiff in these premises. Work done alone in front of these lots that were leased would have been idle and useless. Any scheme to save them must have comprehended the whole front of the river, which was affected by the destructive influences which were at work to cause the caving of the banks. It must also be taken as proved that, all along, during the progress of the work, and up to the time when the proof was taken, the ultimate result was extremely doubtful as to the efficacy of the work to stop the destruction. It has turned out that the caving ceased, whether through the usefulness of the engineering work that was done, or from natural causes, or both, jointly, is not certain on the proof; but the important fact is shown that neither the owners of the property nor these lessees had anything more than a reasonable hope that the work would stop the caving of the banks, and it was under these circumstances that the lessees abandoned their holding and refused to pay the rent. It is also proved that the lessor herself did nothing to arrest the progress of destruction, unless the disputed subscription to the fund by her can be taken as an effort in that direction.

The document constituting the lease between the parties shows that it was written upon the ordinary form of a lease of real estate, found, printed, at the stationers'; that some of the covenants therein are written into the blank form, and others are found in the printed portion which contains also some interlineation. After the date line, found in the opening clause of the lease, that which follows is written in down...