Landlord and Tenant. A lease of a mill privilege and water power contained these clauses: "The lessor shall not be required to make or pay for any repairs on the leased premises or property, nor to furnish any substitute for the same in case of their destruction, loss or damage. The lessee shall make, at its own expense, all necessary repairs, during the term of the lease of the flume, gates, bulk-heads, and all leased property, to keep them in proper condition for use." The gates of the dam being rotten, the county commissioners made an order that the lessor should repair them. He did not do so, and the commissioners under their statutory powers removed the gates and let down the waters of the pond thus depriving the lessee of the demised water power. On being sued for the rent the lessee set up an alleged eviction by reason of the foregoing facts. Held, that in view of the provisions of the lease there was no implied covenant on the part of the lessor to make such repairs as might be ordered by the county commissioners and therefore that the loss of the use of the water afforded no defence to the action for rent.
BARKER, J.
Because the gates were rotten and in need of repair the county commissioners under the police power conferred by Pub. Sts. c. 190, §§ 52-58, removed them and drew down the waters of the pond, thus depriving the defendant of the use of the water power which was one of the things demised in the lease. Before removing the gates the commissioners had made an order that the lessors should repair the gates, and the lessors had omitted to comply with the order.
The lease contained these clauses: "The lessor shall not be required to make or pay for any repairs on the leased premises or property, nor to furnish any substitute for the same in case of their destruction, loss or damage." "The lessee shall make, at its own expense, all necessary repairs, during the term of the lease of the flume, gates, bulk-heads, and all leased property, to keep them in proper condition for use."
The lease being of a water mill both parties must be taken to have entered into it in view of the possibility that the water power might be affected by proceedings under the statutes concerning the safety of dams. With express stipulations of the tenor of those quoted it cannot be said that there was an implied covenant on the part of the lessors to make such repairs as might be ordered in such proceedings. Therefore the loss of the use of the water power was not a partial eviction or ouster for which the lessors were in any way responsible, and it affords no defence to the action for rent.
Judgment for the plaintiffs for $600.