Polack v. Pioche

By the Court, Sanderson, J.: This is an action to recover damages for the nonperformance of a covenant to repair. By the terms of the covenant “damages by the elements or acts of Providence” are excepted from its operation.

The case was tried by the Court below without a jury, and has been brought here upon the findings only, it being claimed that the conclusions of law, which were in favor of the defendant, are erroneous.

The facts upon which the case turns were found by the Court below substantially as follows: During the term the demised premises were damaged to the amount of six thousand dollars by “ a torrent of water overflowing and sweeping through” them. The torrent was produced by the accumulation of waters from the unusual rains of 1862, which were collected in a natural reservoir in the vicinity of the premises, upon lauds of some other person than the ■ plaintiff or defendant, and separated from the demised premises by'"'lands in the possession of and belonging to persons other than the plaintiff or defendant. In ordinary seasons the natural embankment of the reservoir was sufficient to [422]confine the water, or to prevent it from overflowing or breaking through, but was not sufficient for that purpose in the Winter of 1862, which was remarkable for extraordinary rains and floods. Prior to the torrent which caused the damages in question, however, the embankment had been strengthened by the labor of the adjacent land owners, among whom was the defendant, so as to make it sufficient to withstand even the rains and floods of that Winter; but “ some person or persons unknown to the defendant, and without his knowledge or consent, interfered with the natural embankment of the reservoir, and through their agency and their interference the embankment was made to give way, and the whole body of water in the reservoir was suddenly' precipitated upon the premises,” causing the damages in question.

A general covenant to repair is binding upon thé tenant under all circumstances. If the injury proceeds from the act of a stranger, from storms, floods, lightning, accidental fire, or public enemies, he is as much bound to repair as if it came from his own voluntary act. Such has been the settled rule since the time of Edward III. (2 Platt on Leases, 186, 187, and cases there cited.) If the tenant desires to relieve himself from liability for injuries resulting from any of the causes above enumerated, or from any other cause whatever, he must take care to except them from; the operation of his covenant. (Id. 186, 187.) So the defendant in the present case is liable, unless, in the language of the exception contained in his covenant, the damages were caused by “the elements or the acts of Providence.”