Viterbo v. Friedlander

CourtUnited States Supreme Court
Writing for the CourtGRAY
PartiesVITERBO v. FRIEDLANDER and another, Ex'rs, etc. 1
Decision Date07 March 1887

120 U.S. 707
7 S.Ct. 962
30 L.Ed. 776
VITERBO
v.
FRIEDLANDER and another, Ex'rs, etc.1
March 7, 1887.

Page 708

This was a petition, filed October 2, 1884, by a citizen of France against a citizen of Louisiana, to annul a lease of a sugar plantation from the defendant to the petitioner for five years; and alleging that by an extraordinary rise of the Mississippi river, which could not have been foreseen, and without any fault of the lessee, a crevasse was made in the levees of a neighboring plantation, the leased plantation overflowed, all the cane destroyed, and the plantation rendered wholly unfit for the purpose for which it had been leased; and that the petitioner requested the defendant, as soon as the water from the crevasse should have withdrawn, to put back the plantation in the same condition as when leased, and to replace the plant cane and stubble, and the defendant refused to do so. By direction of the circuit court the case was transferred to the chancery side, the the petitioner filed a bill in equity, containing similar allegations, and praying for like relief.

The lease in question was dated October 27, 1883, and was

Page 709

of 'as ugar plantation, situated in the parish of St. Charles, in this state, known as 'Friendlander's Plantation," and 'all the buildings, outhouses, fences, sugar-houses, and other appurtenances thereof,' (particulary described,) from September 27, 1883, to December 15, 1888, at an annual rent of $5,000, which the lessee agreed to pay; and contained the following provisions: 'And the said lessor further declared that he does hereby give unto said lessee all of the growing cane crop of 1883 now standing in the field, which the said lessee expressly binds himself to plant as seed cane on said plantation. And, to reimburse said lessor for said cane crop, said lessee binds himself to leave on said plantation, for the sole use and benefit of said lessor, at the termination of this lease, December 15, 1888, eighty-five acres of full-standed seed cane (such as is usually called first year's stubble) which has been thoroughly cultivated, cut at the proper time for saving seed, and carefully windrowed, especially for seed; and, in addition thereto, said lessee shall also leave on said plantation for said lessor not less than two hundred acres of stubble from what is called plant cane, which shall be properly protected in the ground.' 'And said lessee binds himself to deliver said plantation, at the expiration of this lease, with the ditches in a good draining condition, sufficiently so for the proper cultivation of as much land as may have been under cultivation by said lessee during his fourth year's occupancy of said plantation; and the foregoing clause means that said lessee shall not neglect nor allow the filling up of said ditches during the last year of this lease any more than ditches usually fill up in one year on a well-managed sugar plantation in good cultivation.' 'And the said lessor further declares that he leaves with said lessee, to be used in the culture of sugar-cane on said plantation, thirty-four mules,' valued at $3,700, and implements of husbandry and sugar culture, (particularly enumerated,) valued at $500; all of which the lessee agrees to return in kind or value at the expiration of the lease.

The answer admitted the execution of the lease; and that in March, 1884, when the waters of the Mississippi river were

Page 710

at their usual spring rise or flood, the levees along its banks near the leased property gave way, and inundated the country to some extent; and the demand and refusal to restore the plantation to its original condition and to replace the cane; but denied the other allegations of the bill.

After the filing of a general replication, the case was referred to a master, who reported the facts as follows:

'The lessee, on entering upon the lease, according to the evidence, found the ditches in a bad condition, and no canal into which to drain the fields, except one on the lower side of the plantation. In order to prepare the ground for cultivation of sugar-cane, he decided that a more perfect system of drainage was necessary, and he caused a canal to be dug through the center of the plantation from the front to the swamp, and enlarged and deepened the ditches, securing thereby a better system of drainage.'

'In March, 1884, a crevasse occurred upon what is known as the 'Davis Plantation,' the back waters from which crevasse overflowed a large portion of the Friedlander plantation, especially that portion used for cultivation, and it was under water for several months. The damage caused by this overflow I find from the evidence to be as follows: The lessee lost, by reason of said overflow, the entire crop of sugar-cane of 1884; that is, the 200 acres of stubble cane and the 85 acres of plant cane were destroyed; the ditches were partially, and in some places entirely, filled; the canals, especially the one dug by the lessee, were partially filled, and the bridges generally swept away; the water remained over the land until July, 1884; a deposit was left over the land of from three inches to six inches. To cultivate the land as a sugar plantationt he following year (1885) it would require ditches to be redug, the canals to be opened or cleaned out, the bridges replaced, and seed cane to be obtained and planted, all at considerable expense, to put the plantation in the condition it was at date of the crevasse.'

'The plaintiff admits the plantation would grow a crop of cane. But it would require a considerable sum of money and labor to put it in good condition for the growing of cane; that

Page 711

is, it would require seed cane, the canals ditches to be dug out, and bridges rebuilt. This work is an incident to the growing of a crop of sugar-cane annually. Some years it may require more seed cane, more labor to put the canals and ditches in order, than in others. The land, therefore, has not ceased to be fit for the purposes for which it was leased. On the contrary, some of the witnesses suggest that the deposit has enriched and greatly benefited the land.'

The master, after discussing at length the law of the case, concluded and reported that the property leased was not destroyed, and had not ceased to be fit for the purpose for which it was leased; that the loss of the growing crop, the partial filling of the canals and ditches, and the washing away of the bridges, were not caused by an 'unforeseen event;' that equity could give no relief to the plaintiff; and that his bill should be dismissed. Exceptions taken by the plaintiff to the master's report, in regard both to his findings of fact and to his conclusions of law, were overruled by the circuit court, and a decree entered for the defendant dismissing the bill. 24 Fed. Rep. 320.

The plaintiff appealed to this court, and filed the following assignment of errors: '(1) That when property leased has been rendered unfit for the purpose for which it was leased, by the act of God, the lease is dissolved; (2) that the facts show that the plantation leased as a sugar plantation has been destroyed, and the lease is at an end; (3) that sugar-cane, which is in the form of plant and rattoon or stubbles, is a part and portion of the land, and when destroyed the destruction annuls the lease; (4) that the draining ditches and canals, dug by the lessee in fulfilment of his obligation under his lease, become the property of the lessor, and when destroyed by a crevasse it becomes the duty of the lessor to put them back in the condition they were before the crevasse; (5) that when a lessor is duly put in default to fulfill a part of his obligations as landlord, and refuses, the lease is dissolved.'

Page 712

Chas. Loque and Albert Voorhies, for appellant.

C. F. Buch and G. H. Braughn, for appellees.

Mr. Justice GRAY, after stating the case as above reported, delivered the opinion of the court.

In considering this case it is important to keep in mind that the view of the common law of England and of most of the United States, as to the nature of a lease for years, is not that which is taken by the civil law of Rome, Spain, and France, upon which the Civil Code of Louisiana is based. The common law and the civil law concur in holding that, in the case of an executed sale, a subsequent destruction of the property by any cause is the loss of the buyer. Res perit domino. They also concur in holding that performance of an executory obligation to convey a specific thing is excused by the accidental destruction of the thing, without the fault of the obligor, before the conveyance is made. Taylor v. Caldwell, 3 Best & S. 826; Wells v. Calnan, 107 Mass. 514; Poth. Obl. Nos. 657, 668; Contrat de Louage, No. 65; Rev. Civil Code La. art. 2219, (2216.)

But as to the nature and effect of a lease for years, at a certain rent which the lessee agrees to pay, and containing no express covenant on the part of the lessor, the two systems differ materially. The common law regards such a lease as the grant of an estate for years which the lessee takes a title in, and is bound to pay the stipulated rent for, notwithstanding any injr y by flood, fire, or external violence, at least unless the injury is such a destruction of the land as to amount to an eviction; and by that law the lessor is under no implied covenant to repair, or even that the premises shall be fit for the purpose for which they are leased. Fowler v. Bott, 6 Mass. 63; 3 Kent, Comm. 465, 466; Broom, Leg. Max. (3d Ed.) 213, 214; Doupe v. Genin, 45 N. Y. 119; Kingsbury v. Westfall, 61 N. Y. 356; Naumberg v. Young, 44 N. J. Law, 331; Bowe v. Hunking, 135 Mass. 380; Manchester Warehouse Co. v. Carr, 5 C. P. Div. 507.

Page 713

The civil law, on the other hand, regards a lease for years as a mere transfer of the use and enjoyment of the property; and holds the landlord bound, without any express covenant, to keep it in repair...

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74 practice notes
  • Solomon v. Neisner Bros., No. 3289.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • October 3, 1950
    ...and see McKinley v. C. Jutte & Co., 230 Pa. 122, 79 A. 244, Ann.Cas.1912A, 452. 13 As to the law generally, see Viterbo v. Friedlander, 120 U.S. 707, 7 S.Ct. 962, 30 L.Ed. 776; Felton v. City of Cincinnati, 6 Cir., 95 F. 336, 339, 14 "If, in order to collect rent, the landlord must rebuild,......
  • City of Phoenix v. Phoenix Civic Auditorium & Convention Center Ass'n, Inc., No. 8394
    • United States
    • Supreme Court of Arizona
    • December 13, 1965
    ...would be if the base [sic] lease were considered merely as a contract, so far as concerns the unaccrued rents. See Viterbo v. Friedlander, 120 U.S. 707, 7 S.Ct. 962, 30 L.Ed. 776; 3 Williston on Contracts (Rev.Ed.) § 890; In re Barnett (C.C.A.) 12 F.2d 73; 21 Cal.L.R. 561, 562, 563; 33 Col.......
  • Coal & Coke Ry. Co v. Conley
    • United States
    • Supreme Court of West Virginia
    • March 8, 1910
    ...690; Forqueran v. Donnally, 7 W. Va. 114; United States v. Le Bris, 131 U. S. 278, 7 Sup. Ct. 894, 30 L. Ed. 946; Viterbo v. Friedlander, 120 U. S. 707, 7 Sup. Ct. 962, 30 L. Ed. 776. This is more especially and emphatically true, when the former acts on the same subject are not wholly repe......
  • Chesapeake & O. Ry. Co v. Deepwater Ry. Co
    • United States
    • Supreme Court of West Virginia
    • April 25, 1905
    ...considered. Forqueran v. Donnally, 7 W. Va. 114; Vane v. New-combe, 132 U. S. 220, 10 Sup. Ct. 60, 33 L. Ed. 310; Viterbo v. Friedlander, 120 U. S. 707, 7 Sup. Ct. 962, 30 L. Ed. 776; Daniel v. Simms, 49 W. Va. 554, 39 S. E. 690. Can the surrounding circumstances be considered? Yes, and als......
  • Request a trial to view additional results
74 cases
  • Solomon v. Neisner Bros., No. 3289.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • October 3, 1950
    ...and see McKinley v. C. Jutte & Co., 230 Pa. 122, 79 A. 244, Ann.Cas.1912A, 452. 13 As to the law generally, see Viterbo v. Friedlander, 120 U.S. 707, 7 S.Ct. 962, 30 L.Ed. 776; Felton v. City of Cincinnati, 6 Cir., 95 F. 336, 339, 14 "If, in order to collect rent, the landlord must rebuild,......
  • City of Phoenix v. Phoenix Civic Auditorium & Convention Center Ass'n, Inc., No. 8394
    • United States
    • Supreme Court of Arizona
    • December 13, 1965
    ...would be if the base [sic] lease were considered merely as a contract, so far as concerns the unaccrued rents. See Viterbo v. Friedlander, 120 U.S. 707, 7 S.Ct. 962, 30 L.Ed. 776; 3 Williston on Contracts (Rev.Ed.) § 890; In re Barnett (C.C.A.) 12 F.2d 73; 21 Cal.L.R. 561, 562, 563; 33 Col.......
  • Coal & Coke Ry. Co v. Conley
    • United States
    • Supreme Court of West Virginia
    • March 8, 1910
    ...690; Forqueran v. Donnally, 7 W. Va. 114; United States v. Le Bris, 131 U. S. 278, 7 Sup. Ct. 894, 30 L. Ed. 946; Viterbo v. Friedlander, 120 U. S. 707, 7 Sup. Ct. 962, 30 L. Ed. 776. This is more especially and emphatically true, when the former acts on the same subject are not wholly repe......
  • Chesapeake & O. Ry. Co v. Deepwater Ry. Co
    • United States
    • Supreme Court of West Virginia
    • April 25, 1905
    ...considered. Forqueran v. Donnally, 7 W. Va. 114; Vane v. New-combe, 132 U. S. 220, 10 Sup. Ct. 60, 33 L. Ed. 310; Viterbo v. Friedlander, 120 U. S. 707, 7 Sup. Ct. 962, 30 L. Ed. 776; Daniel v. Simms, 49 W. Va. 554, 39 S. E. 690. Can the surrounding circumstances be considered? Yes, and als......
  • Request a trial to view additional results

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