76 F. 408 (6th Cir. 1896), 416, Waite v. O'Neil

Docket Nº:416.
Citation:76 F. 408
Party Name:WAITE et al. v. O'NEIL et al.
Case Date:October 05, 1896
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 408

76 F. 408 (6th Cir. 1896)

WAITE et al.


O'NEIL et al.

No. 416.

United States Court of Appeals, Sixth Circuit.

October 5, 1896

Page 409

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         This is a bill in equity to enforce the specific performance of certain covenants in a lease, and for the collection of rents in arrear. The suit was begun in 1886 by a bill filed by the complainant, as lessor, in the chancery court of the state, at Memphis, Tenn., and was subsequently removed to the circuit court of the United States by the complainant upon the ground that the defendants were all citizens of a state other than Tennessee. After removal the cause was docketed and tried as an equity suit. A motion made upon final hearing by the complainant to have the suit transferred to the law docket, and for a reformation of the pleadings, was disallowed. The subject-matter of the lease is described as 'the river front and landing in front of lots number 1, 2, 3, and 4 in block 1, South Memphis, with ample space for a roadway along the landing in all stages of the water, and no more. The said landing to be used by the said lessees for the mooring, storing, and unloading of coal, wood, and ice barges or boats. ' The lease began November 1, 1882, and was to continue until October 1, 1889. Eighty-three notes for $75 each were executed, one being payable each month during continuance of the lease. The rent notes, up to and including that due April 1, 1886, were paid at maturity. The notes falling due in May, June, July, and August, 1886, were due and unpaid when the bill was filed. The subsequent installments of rent fell due pending the suit, and, by a supplemental bill filed after expiration of the lease, relief was sought upon them. The prayer of the bill was for a specific performance of certain covenants touching the repair and construction and preservation of the roadway mentioned in the lease, and for an account for waste resulting from the caving in of the bank of the river at the landing, and for a decree for rents past due. The defendants abandoned the premises in April, 1886, claiming that the 'landing' referred to in the lease had been destroyed without their fault, and the lease thereby terminated. They further claimed that all possibility of beneficially using the said landing, if otherwise available, was destroyed by the conduct of the lessor in aiding and abetting in the obstruction of access to the lessor's remaining river front by the construction of certain sunken dikes, extending from the shore perpendicularly for several hundred feet, and effectually preventing barges from being safely brought to the shore line. Touching these defenses it is necessary to state certain other facts. The lessor owned four town lots, contiguous. Each had a width of 40 feet and a depth of 150 feet. These lots fronted on Tennessee street, which ran parallel with the Mississippi river, and were bounded on the rear by the river. Mrs. Waite had two residences on these lots, fronting on and near to Tennessee street, and lived in one of them. The river bank was a high bluff of earthy material, known geologically as 'loess.' The height of this bluff above low-water mark was from 60 to 80 feet. Between the base of this bluff and the margin of the river at low water was a narrow 'footing,' along which the roadway mentioned in the base was maintained. Whether this footing, as it is called by the witnesses, was natural, or the result of an artificial cutting away of the bluff, does not appear. Its material was identical with that of the bluff, and it was as subject to caving by action of a strong current, and was under water when the river was at a high stage. This footing was the only basis for a road giving access to the river, and constituted the landing referred to in the lease, there being no wharf, dock, or pier whatever. The landing had long before this lease been used as a place for mooring and unloading coal barges. The manner in which the unloading was done both before and after the base is described by the witness C. B. Bryan as follows: 'A long float was moored against the bank, on which the teams of C. B. Bryan & Co. were driven, and the barges or boats of coal were on the outside of said float, and the coal thrown from those boats or barges into the carts, driven on the float as before stated. Then the teams were driven off the float onto the roadway leading up from the river, and along and under the bank onto Beal street; thence up into the city. A lot of ground having a river front, belonging to the city of Memphis, which extended from the south of Linden street to Beal street, enabled C. B. Bryan & Co. to have a continuous way and outlet from the

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float and barges moored in front of Mrs. Waite's property. ' Prior to May, 1886, this landing and roadway had been kept in proper repair, and in like condition to that in which it was at date of the lease. Although prior to that month there had been an occasional caving in of the roadway, it had not been serious, and the ravages of the river had been easily repaired. In the spring of 1886, and during the months of April and May, certain government works protecting Hopefield point, above and across the river, gave way, by reason of the force of the current and high stage of the river. The result was that an uncontrollable current was thrown directly against the river bank in front of Mrs. Waite's property, and the property contiguous to hers above and below.

         This sudden and surprising change in the force and direction of the current of a swollen and might stream resulted in undermining the bluff, and causing it to fall down in great masses. So destructive was the force of the flood that when the river fell, and the current somewhat abated, nothing remained of complainant's property but a narrow and ragged fringe from 15 to 30 feet in depth. This remnant clinging to Tennessee street presented to the river an almost vertical bank from 60 to 80 feet above the ordinary stage of the river, its surface showing great cracks indicative of further caving. At its foot was deep water, against which a strong and almost resistless current was beating. Against this irregular bluff it was dangerous to moor water craft, both because further caving was plainly indicated, and because the force of the current was so great as to make it dangerous and impracticable. The evidence is convincing that it was impracticable to construct a footing at the base of the bluff for a new road. The remaining portion of complainant's property was not deep enough to permit the cutting away of the bluff in such manner as to protect a new road against the overhanging masses of the shattered bank. It was therefore impossible to reconstruct a practical and safe landing upon her water front; for, without access to and from the public streets of the city, barges could not be there loaded and unloaded. To moor, land, or unload became impossible when the landing referred to in the lease was destroyed, and the bluff's footing carried into the river. To lie under a bluff that was caving in great masses was perilous and practically impossible, in view of the great current sweeping against it. Under these circumstances the lessees treated the lease as terminated, and found a harbor and landing elsewhere. Certain works subsequently constructed in the river for the purpose of breaking the force of the current added to the unavailability of the lessor's remaining water front as either a mooring or landing place. These works consisted in a series of large cribs filled with rock, and sunken in lines perpendicular to the shore, and extending some 300 feet beyond low-water mark. One crib was sunken upon...

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