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me to maintain my lower house by repairing the principal timbers so as to save bis upper house, Nota et stude. For some at the bar were of opinion that I could allow my lower house to go to ruin, but all were agreed that I could not demolish my house so as to destroy his upper house. And the way for us to compel others to support our houses, ut supra, ,

if the law is so, is by an action on the case, &c."

POMFRET V. RICROFT.
King's Bench AND EXCHEQUER CHAMBER. 1669, 1671.

(Reported 1 Saund. 321.] COVENANT: the plaintiff declares that, by indenture made between then, the defendant had demised and granted to the plaintiff a messuage and piece of land containing so many feet, save and except a Sinall piece of land lying on the southwest corner thereof, upon which a pump was standing, in the parish of St. Leonard Shoreditch in Middlesex, and all ways, passages, &c., together with the use and occupation of the pump in common with the other tenants of the defendant there; to have for 31 years. And the plaintiff assigns the breach, that the defendant during the said term did not repair the pump; but the defendant afterwards, and before the end of the term, to wit, on the 29th day of September in the 16th year of the now king, did permit the pump to be in decay, broken, ruinous, prostrate, and totally spoiled, and did also permit the fountain and water of the pump to be filled, choked, and spoiled with earth, mud, and rubbish, for want of repairing thereof by the defendant, and did suffer the pump to remain so in decay, broken, ruinous, prostrate, and spoiled, and the fountain and water of the pump so filled, choked, and spoiled, from the said 29th day of September in the said 16th year of the now king hitherto, and the Same are not repaired, maintained, or amended, whereby the plaintiff', could not, nor yet can, have the use and occupation of the pump, according to the form and effect of the said indenture ; but the plaintiff

reason thereof hath, during the whole time aforesaid, totally lost and been deprived of the whole use, benefit, and advantage of the pump; and so the plaintiff said that the defendant had broken his Corenant, to the damage, &c.; on which declaration the defendant emurred in law.

And after argument by Simpson for the defendant, and Jones for the Plaintiff, KELYNGE Chief Justice, RAINSFORD and MORTON Justices, gave

by

1“I do not approve of the case in Keilway, 98 b, pl. 4, and the law seems to be doubtful in that point. In Fitz. N. B. 127 L., there is a writ to that purpose ; but the

rit is grounded upon the custom of the place, and not upon the common law. And there is such a custom in many places, and there is no other authority for it.” Per HOLT, C. J., in Tenant v. Goldwin, 2 Ld. Raym. 1089, 1093 (1704).

judgment for the plaintiff, that the action well lay on this ground, namely, that when the use of a thing is demised, and the thing falls to decay, so that the lessee cannot have the use and benefit of it, he shall have his action of covenant therefore on the word demisit, which raises a covenant in law. And their reasons were, because the lessee himself cannot repair it, not having any interest either in the pump, or in the land upon which it stands; for it appears that the land where the pump stands was specially excepted out of the lease, so that no interest therein passed to the lessee who is the plaintiff. If then the lessor will not repair it, he not only avoids his own grant, but the lessee will also be deprived of the benefit which he ought to have, and which perhaps induced him to give a greater fine or rent for a lease of his house ; and yet he cannot help himself, but will be wholly without remedy unless this action of covenant lies. And they put the case, that if a man grants by deed a watercourse, now if the grantor stops it, the grantee shall have an action of covenant against him. So if a lease be made of a house and estovers, and the lessor destroy all the wood out of which the estovers were to be taken, the lessee shall have an action of covenant against the lessor. So, by Rainsford, if a man demise by deed a middle room in a house, and afterwards will not repair the roof, whereby the lessee cannot enjoy the middle room, an action of covenant lies for him against his lessor. Wherefore they held that the plaintiff should have judgment.

TWYSDEN, Justice, contra, totis viribus, and that the action here does not lie. But he agreed to the cases above put, that where a man grants a watercourse and afterwards stops it, or demises a house and estovers and afterwards destroys the wood, in such cases the party grieved shall have his remedy by action of covenant; for these are wilful acts of the lessor or grantor, and it is a misfeasance in him to annul or avoid his own grant. But in this case there is no misfeasance, but only a non feasance, for which no action lies. As in the case where I grant a way over my land, I shall not be bound to repair it, but if I voluntarily stop it, an action lies against me for the misfeasance; but for the bare nonfeasance, viz., in not repairing it when it is out of repair, no action at all lies. But if any action had been maintainable, le said, that it would be rather an action upon the case than action of covenant. As if the lessor enter upon the lands leased, and cut down the timber trees and carry them away, whereby the lessee will lose the loppings and shade of them, he cannot bave covenant, though he maja' have an action of trespass, or upon the case, for his special damage. And he further said, that covenant does not lie but for an actual ouster of the land demised, and in such action the possession shall be recor. ered as in an ejectment. Fitz. Covenant, 23 ; Judgment, 177. And he further held that in this case the plaintiff himself being the lessee might have repaired the pump; for although neither the soil itself nor the pump be granted to him, yet by the grant of the use of the pump the law has given to him this liberty; for when the use of a thing is

granted, every thing is granted by which the grantee may have and enjoy such use. As if a man gives me a license to lay pipes of lead in his land to convey water to my cistern, I may afterwards enter and dig the land to mend the pipes, though the soil belongs to another and not to me.

But notwithstanding his opinion, which was much the better one, as I thought, judgment was given for the plaintiff as above, &c. And afterwards, namely, Hil. 22 & 23 Car. 2, the judgment was reversed in the Exchequer Chamber by VAUGHAN, Chief Justice of the Bench, HALE, Chief Baron, TURNER, ARCHER, WYLD, and LITTLETON, una voce, for the matter in law only, for the reasons of TWYSDEN above mentioned. And Hale said, that if I lend a piece of plate, and covenant by deed that the party to whom it is lent shall bave the use of it, yet if the plate be worn out by ordinary use and wearing without my fault, no action of covenant lies against me.

ANONYMOUS.
King's BENCH. 1702.

(Reported 11 Mod. 7.] First, if a lessee for years build a house on the premises leased, it is Faste; and if he let it fall, it is a new waste.

Secondly, if a man has an upper room, an action lies against bim by One who has an under room, to compel him to repair his roof. And so where a man has a ground room, they over him may have an action to Coinpel him to keep up and maintain his foundation.

Sed quoere: For if a man build new house under the roof of an old house which is ready to tumble, Whether he shall have a writ de repa.

ratione faciendu? because debet et solet or consuevit are necessary Words in the declaration. 1 Vent. 274. And Dent v. Oliver, Cro. Jac. 43, 122, where a man may have an action to charge a terre-tenant, he Laust lay a debet et solet, and show a title.

Holt, Chief Justice, said, that every man of common right ought so to support his own house, as that it may not be an annoyance to another Dan's.

But Powell, Justice, put this case : Suppose a man make a vault, and build a wall thereto, and then his neighbor makes a cellar adjoining to the vault, which is damaged by a default in the wall of the vault, Le thought that the owner of the cellar might well have an action :

Which Holt, Chief Justice, denied; for by him, before the party could entitle himself to an action in that case, he ought first to build a

all to his cellar, as well as the other to his vault; otherwise he ought Got to have any benefit from the first wall; unless it he indeed agreed, that he shall contribute to the repair of it, &c. Suppose a man has a

vacant piece of ground, and builds a house upon part of it, and then sells the rest, the vendee cannot build so as to stop up any lights in the first house, but must take the ground subject to the encumbrance of the former lights.

LORING V. BACON.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

1808.

men.

[Reported 4 Mass. 575.) Assumpsit for labor and materials employed in repairing the defendant's house, and for money laid out and expended. The cause was submitted to the opinion of the court, without argument, upon an agreed statement of facts, the material parts of which are recited in the following opinion of the court as delivered by

Parsons, C. J. The plaintiff declares in case upon several promises. The first count is indebitatus assumpsit in the sum of eighty dollars. according to the account annexed to the writ, the items of which are for timber, boards, shingles, nails, and labor, and victualling the work

The second count is a quantum meruit for the same items, technically supposed to be different, but similar. The third count is a general indebitatus assumpsit for eighty dollars laid out and expended.

The facts being agreed by the parties, the question of law comes before the court on a case stated. From this case, it appears that the defendant is seised in fec simple of a room on the lower floor of a dwelling-house, and of the cellar under it; and that the plaintiff is seised in fee of a chamber over it, and of the remainder of the house ; that the roof of the house was so out of repair, that, unless repaired, no part of the house could be comfortably occupied ; that the defendant, though seasonably requested by the plaintiff, refused to join with him in repairing it; and the plaintiff then made the necessary repairs, and has brought this action to recover damages for her refusal to join in the repairs. It is also agreed that the parties had from time to time repaired their respective parts of the house at their several expense. And the question submitted to the court is, whether the plaintiff can recover in this action.

This is an action of the first impression. No express promise is admitted; but if there is a legal obligation on the defendant to contribute to these repairs, the law will imply a promise.

We have no Statute, nor any usage upon this subject, and must apply to the common law to guide us.

Although, in the case, the parties consider themselves as severally

1 See Cubitt v. Porter, 8 B. & C. 257, ante, p. 208 ; Standard Bank v. Stokes, 9 Ch. D. 68 ; Leigh v. Dickeson, 12 Q. B. D. 194.

house

seised of different parts of one dwelling-house, yet, in legal contemplation, each of the parties has a distinct dwelling-house adjoining together, the one being situated over the other. The lower room and the cellar are the dwelling-house of the defendant; the chamber, roof, and other parts of the edifice, are the plaintiff's dwelling-house. And, in this action, it appears that, having repaired his own house, he calls upon her to contribute to the expense, because his house is so situated that she derives a benefit from his repairs, and would have suffered a damage, if he had not repaired.

Upon a very full research into the principles and maxims of the common law, we cannot find that any remedy is provided for the plaintiff.

Houses for the habitation, and mills for the support, of man, are of high consideration at common law; and when holden in common or joint-tenancy, remedies are provided against those tenants, who refuse to join in necessary reparation, by the writ de reparatione facienda, Co. Lit. 200 b; Fitz. 295. In Co. Lit. 56 b, it is said that, if a man has a

so near to the house of his neighbor, and he suffers it to be so ruinous that it is like to fall on his neighbor's house, he may have a trrit de domo reparanda, and compel him to repair his house. In Keilway, 98 b, pl. 4, there is a case reported, in the time of Henry the Eighth, in which Fineux and Brudenell, justices of the King's Bench, were of opinion that if a man have a house underneath, and another have a house over it, as is the case in London, the owner of the first

may compel the other to cover his house, to preserve the timbers of the house underneath ; and so may the owner of the house abore compel the other to repair the timbers of his house below; and this by action of the case. But some of the bar were of opinion that the owner of the house underneath might suffer it to fall; yet all agreed that he could not pull it down to destroy the house ab And in Fitz. N. B. 296, there is a writ of this kind. But in the case of Tenant

. Goldwin, 6 Mod. 314, Lord Holt was of opinion that this writ was by virtue of a particular custom, and not of the common law; and he doubted the case in Keilway.

But there is unquestionably a writ at common law de domo repaPrendu, the form of which we have in Fitz. N. B. 295, in which A. is commanded to repair a certain house of his in N., which is in danger of fa 1 ling, to the nuisance of the freehold of B. in the same town, and wla ich A. ought, and hath been used, to repair, &c. This writ, Fitzhe Ebert says, lies, when a man, who has a house adjoining to the house of his neighbor, suffers his house to lie in decay, to the annoyance of his neighbor's house. And if the plaintiff recover, he shall have his da

mnages; and it shall be awarded that the defendant repair, and that he

be restrained until he do it. But it is otherwise in an action of the case; for there the plaintiff can recover damages only. And there appears no reasonable cause of distinction in the cases, whether a house adjoin to another on one side, or above, or underneath it.

house

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