March, the sum of six dollars, from and after the first day of March, 1813; and shall also, for the accommodation of the said Folts, his heirs and assigns, make and keep in repair a bridge across the said Huntley's upper flume, and a road from thence through the bank to the flat lands; and shall also keep in repair a good fence on the bank the whole length of the said race-way on the said Folt's land; and shall build his dam across the said creek against and at the place where the upper flume now stands, and shall not so build his dam as to raise the water more than two feet above low-water mark. And the said Timothy Huntley doth hereby, for himself, his heirs or assigns, covenant and agree to and with the said George Folts, his heirs and assigns, to pay the rent above reserved, to build," &c., covenanting to perform all and singular, the premises above specified on his part to be performed. The plaintiff's declaration was for breaches of the several covenants contained in the agreement above set forth. The defendant pleaded the general issue, and attached to his plea a notice of various matters intended to be given in evidence on the trial. The justice gave judgment for the plaintiff for $13 damages, and the defendant appealed to the Common Pleas. On the trial in the Common Pleas, the plaintiff claimed to recover damages only for such breaches of the agreement as had happened since 1st March, 1828, and proved that since that time Huntley had not maintained the bridges, or kept the road and fences in repair specified in the agreement, and gave evidence of the amount of damages sustained by him by reason thereof. The omissions of Huntley were proved by his admissions; and in the same conversation he said that the State had taken away his water, and he did not consider himself under any obligation to keep the bridges, road and fences in repair; that the mill had run for two or three years after the Canal Commissioners took the water, but did not do much business, and that for two years it had not run at all. The plaintiff proved an admission of Huntley, that he had sold his privilege to the State, and proceeded to inquire as to the amount received by him, but the evidence was objected to, and overruled, and it subsequently appearing that the transfer made by Huntley was in writing, the court decided that the writing must be produced, and that the evidence of the admissions of a transfer must be excluded from the consideration of the jury. The plaintiff then offered in evidence a copy of a receipt, purporting to be signed by Huntley, certified by the Deputy Comptroller of the State, under the seal of office of the Comptroller, as being on file in the Comptroller's office, by which, under date of December 9, 1825, Huntley acknowledged the receipt of $1,000 of one of the Canal Commissioners, in full for the water of the Limestone Creek, taken to feed the Erie Canal, whereby his saw-mill was deprived of water, and rendered useless. This evidence was objected to, and overruled. It appeared that the water of the Limestone Creek was in 1825 taken to feed the Erie Canal, above where Huntley take it, and that since the 1st March, 1828, his mill had been useless. The plaintiff having rested, the defendant moved for a nonsuit, on the

was to

grounds, 1st. That the contract was conditional, and that when Huntley ceased to pay rent the contract was at an end; and 2d. That the water of the creek having been appropriated by the Canal Commissioners, the Statute under which it was thus taken disannulled the lease or agreement, and discharged Huntley from the performance of his covenants. The court sustained these objections, and nonsuited the plaintiff; judgment was entered for the defendant, and the plaintiff sued out his writ of error.

S. L. Edwards, for plaintiff in error.

J. Watson, for defendant in error.

BY THE COURT, NELSON, J. The first question in this case is whether the defendant could avoid the lease by refusing to fulfil the covenants; or, in other words, whether the performance of the covenants were at his option. The intention of the parties, to be gathered from a view of the whole agreement, the criterion by which to give a construction to any part, giving effect, if consistent and reasonable, to the whole (1 Selw. 339); and if there be any ambiguity, such construction must prevail as is most strong against the covenantor, for he might have expressed himself more clearly. The principle has been applied to the construction of leases. Webb v. Dixon, 9 East, 15.

Now yielding to the interpretation urged by the defendant, there would be no mutuality in the agreement, or consideration to the plaintiff, for the benefit would be all on one side, and the obligation on the other; and though this might not make a covenant void ab initio, Shubricks v. Salmon, 3 Burr. 1637; Lowe v. Peers, 4 Id. 2225, it will at least require strong and express provisions to induce the court to come to that conclusion. I have no doubt that it was the intention of both parties, as well from the subject-matter and nature of the agreement as from a reasonable sense of the words themselves, that each was to be bound. The agreement was inartificially drawn; but the true reading is, that Folts covenants to lease to Huntley the use of the waters in Limestone Creek, with so much of the bank, &c., for the time and upon the condition that Huntley pays the rent, keeps in repair bridges, &c.; and then follows an express covenant on the part of Huntley, his heirs, &c., to Folts, his heirs, &c., to pay the rent, build and keep in repair the bridges, &c.

The true construction of this agreement is given in the case of Canfield v. Westcott, 5 Cowen, 270, and the cases in the note (a), to wit, that on a failure to pay rent, or to build and keep in repair bridges, &c., on the part of the defendant, the plaintiff might consider the lease forfeited, and re-enter by action of ejectment, or waive the forfeiture and sue, as he has done here, upon the express covenant.

There can be no doubt the lease is a perpetual one. It is by Folts, his heirs, &c., to Huntley, his heirs and assigns, for such time as he shall pay the rent and fulfil other stipulations. So long, then, as Huntley, his heirs or assigns, pay the rent and comply with these stipulations, they are entitled to all the rights and privileges under it; and we VOL. II. -48

have shown that Folts can enforce the payment of rent, &c., upon the express covenant of Huntley, and that it is not at the election of the latter to put an end to it. It therefore necessarily follows that the lease continues until put an end to by the mutual agreement of the parties to it, or till the plaintiff may elect to claim a forfeiture in the default of the lessee to pay, &c.

In the next place, it is contended that the diversion of the Limestone Creek by the Canal Commissioners, to be used as a feeder to the Erie Canal, being under the authority of law, is to be considered in the nature of an eviction by paramount title, and therefore a bar to the suit for rent, or for the breach of any other covenant; and so the court below decided. The term demised in the lease undoubtedly implied a covenant of quiet enjoyment, at least during the life of the lessor (Woodfall, 243; Shep. T. 160); and eviction under a superior and lawful title of the whole or any part of the demised premises, would constitute a valid defence. 1 Selw. 390; Cro. Eliz. 214; Johns. Dig. 440, tit. Covenant (c); Pendleton v. Dyett, 4 Cowen, 581. It is obvious, however, for many reasons, that this act of the Canal Commissioners, though lawful, is not an eviction within the meaning or spirit of the term, and can afford no defence to this suit. It was not inconsistent with, but entirely independent of a perfect right and title in the plaintiff to lease the demised premises, and rested upon great public considerations, paramount to all and every title to the property. Nor is the reason upon which this defence is founded applicable, to wit, that rents shall not be paid after the premises demised are gone. It is a fundamental principle that private property cannot be appropriated to public purposes without a just compensation; and accordingly the Statute empowering the Commissioners or their agents "to enter upon and use all and singular any lands, waters, and streams necessary for the prosecution of the improve ment," &c., provided compensation for any injury produced to any individual by the exercise of this power. If the defendant has not already obtained his remuneration (which he probably has), the law affords him a perfect remedy, to the extent of the injury which his property has sustained by the diversion of the stream; he, and not the plaintiff, can pursue it. On another ground, it is not in the power even of the Legislature to impeach or disannul the covenants in this case. Sturges v. Crowninshield, 4 Wheaton, 122, 192, 209; Mather v. Bush,

16 Johns. R. 233.

Judgment reversed, and venire de novo awarded.1

1 See accord. Parks v. Boston, 15 Pick. 198 (1834); Foote v. Cincinnati, 11 Ohio, 408 (1842); contra, Kingsland v. Clark, 24 Mo. 24 (1856).

LAWRENCE v. FRENCH.

SUPREME COURT OF NEW YORK. 1841.

[Reported 25 Wend. 443.]

THIS was an action of replevin, tried at the Albany Circuit in June, 1839, before the Hon. John P. Cushman, one of the circuit judges.

The plaintiff, on 12th December, 1835, took a lease of the defendant of a building in the city of Albany called the Exchange Coffee-House, for the term of one year from the first day of May, 1836, at an annual rent of $1,050, payable quarterly. He had, since May, 1834, been in possession of the whole of the premises demised, except one room in the corner of the building, which was occupied by one Candy. On the first day of May, 1836, Candy, under a prior lease from the defendant, at an annual rent of $400, continued in the occupation of the room; and the plaintiff continued to occupy all the residue of the building, until 17th January, 1837; when the defendant issued a distress warrant, claiming $187.50, to be due to him from the plaintiff for three quarters' rent, estimating the rent by deducting $400 from the annual rent reserved in the lease to the plaintiff; thus charging the plaintiff with an annual rent of only $650, for three fourths of which sum the warrant was issued. The property of the plaintiff was distrained to the amount of $487.50; and the plaintiff sued out a writ of replevin. It was conceded by the plaintiff that $650 per annum was a fair price for the use of that portion of the premises occupied by him; but he insisted that the defendant, not having put him into possession of the whole of the demised premises, had no authority by law to distrain for the rent reserved, or any part thereof; and so requested the judge to charge the jury. The judge refused so to charge; and on the contrary, instructed the jury that the defendant had a lawful right to make the distress for the sum demanded, and was entitled to their verdict. The jury accordingly found a verdict for the defendant, with six cents damages and six cents costs; found the rent to be $487.50, and the value of the property at the same sum; and assessed the damages of the defendant at $10, for the detention of the property. The plaintiff having excepted to the charge of the judge, moved for a new trial. S. Stevens, for the plaintiff.

J. Van Buren, for the [defendant].

BY THE COURT, NELSON, C. J. It is a familiar rule of law, that if the landlord enter wrongfully upon, or prevent the tenant from the enjoyment of, a part of the demised premises, it suspends the whole rent until possession is restored. His title is founded upon this, that the land leased is enjoyed by the tenant during the term; if, therefore, he be

deprived of it, the obligation to pay ceases. The rule is otherwise where a part is recovered by title paramount to the lessor's; for, in that case, he is not so far considered in fault, as that it should deprive him of a return for the part remaining. The law, therefore, directs an apportionment of the rent, 6 Bacon's Abr. 44, tit. Rent, L.; Gilbert on Rents, 173; Comyn's Land. and Ten. 214-219; Bradby on Dist. 24-30. But as between lessor and lessee, an eviction from part by the former, or any person claiming through him, will operate a suspension of the whole, Comyn's Land. and Ten. 524; 2 Saund. Pl. and Ev. 630. There are some cases illustrating this principle to which I will refer.

A mere trespass, by the lessor, will not suspend the rent, as where he entered and destroyed a building, Cowp. 242; but where he railed off a part of the premises, the act had that effect, 3 Camp. 513. So where he gave notice to an under-tenant to quit, and he did accordingly, it was held to amount to an eviction, 1 Stark. R. 94; also in case of a demise to another after the tenant had left the premises, 5 Barn. & Cres. 332.

The case of Ludwell v. Newman, 6 T. R. 458, in principle comes near the present one. It was an action on a covenant of quiet enjoy ment in a lease. The breach was, that the plaintiff could not obtain the possession; that he applied to the tenant to attorn, who refused; an action of ejectment was brought, and defeated by a previous lease of the defendant, given the month before; by reason of all which the plaintiff was prevented from enjoying the term, &c. The second count was like the first, except it omitted the application to attorn, and proceedings in ejectment. Defective pleas were put in to each count, to which there were demurrers. One objection taken to the pleas was this: they stated the plaintiff might lawfully have enjoyed during the first half year; when it appeared by the declaration, that he could not have entered at any time on account of the prior lease. The court held, that the defendant's covenant of quiet enjoyment meant a legal entry and enjoyment, without the permission of any other person; which could not take place on account of the prior subsisting lease granted to R. See Platt on Cov. 327. The case decides that the lessee is not bound to test his right of entry by suit, as the only legal evidence of a breach of the covenant; nor need he commit a trespass by an actual entry. Platt on Cov. 327; Hob. 12; 2 Bacon, 66, B.

In Tomlinson v. Day, 2 Brod. & Bing. 680, the defendant took a farm under an agreement, by which the plaintiff stipulated that he should enjoy the exclusive right of sporting over the manor in which the farm lay, and should occupy the glebe land of the parish; rent, £450. The agreement, though acknowledged and recognized by the defendant, had never been signed by him; but he occupied the farm for some time. The chief inducement in taking it was the privilege of sporting; but it turned out the plaintiff had no power to grant the privilege, and the defendant was in fact warned off by the occupiers of the manor. Neither did he get possession of the glebe. In an action for use and occupation, the court held that an eviction of a part of the