Merryman v. Shipley

delivered the opinion of the Court.

This is an action of covenant, on a deed of lease made the 10th day of April, 1857, between W. W. Gleen, trustee of the first part, Thomas D. Cockey and wife of the second part, and William Robinson of the third part. By it, the parties of the first and second parts, demised or granted to Robinson, certain quarry rights in the land of the parties of the first and second parts, for a term of fifteen years, subject to the payment of a rent or royalty, and with the privilege to the lessee, of putting an end at any time to the term by surrender.

*86The deed also recited, that the use of certain water works, race, water wheel and trestle work, existing on the land of the parties of the first and second parts, went with the quarry rights, and should he exclusively used hy the lessee -during the continuance of the term. And there was a clause by which it was declared that after the determination of the said quarry rights, &c., so granted and demised for tlie term of fifteen years, the party of the first part, (the trustee, with the consent of the parties of the second part,) granted to said Robinson, his heirs and assigns, owners of a tract of land adjoining, the perpetual right and privilege to use one-fourth of the water power, produced by means of said water works, for the sole purpose of pumping out water from the quarries, then or thereafter to he opened on Robinson’s land, the party of the first part reserving the other three-fourths of said water power, for such uses as he, his heirs, successors or assigns might deem proper, for the uses of his trust. And in the last clause of the deed preceding the in testimonium clause, was the following stipulation :

“■And it is hereby expressly agreed, that after the expiration of the exclusive right to use the whole of said water power hereinbefore granted and demised for fifteen years aforesaid, whether hy effluxion of time, surrender or otherwise, that the expenses of keeping and maintaining said water power fit for use, and of cleaning out the race and repairing the dam, trestle work, tail-race, water wheel, mill house, &c., shall be borne by the party of the first part hereto, his heirs, successors and assigns, and hy the party of the third part hereto, his heirs and assigns, owners of said lands, marked on said plat as William Robinson’s land, in the proportion of three-fourths to the party of the first part, and one-fourth to the party of the third part.”

The term of the lease, fifteen years, having expired, and the water works having been abandoned and permitted *87to fall into decay, with the consent of all parties, this suit is brought to recover of the defendant, assignee of Robinson, one-fourth part of the estimated cost of repairs.

There is no averment in the declaration, either of the making of the repairs by the plaintiffs, and the defendant’s refusal on demand to pay one-fourth of the expense; or the plaintiffs’ readiness to repairs and the defendant’s refusal to participate therein, and it is clear therefore, the only ground on which the action can be maintained is an agreement, either express or implied, on the part of Robinson to make such repairs.

The stipulation in the latter clause of the deed in regard to the proportion of expense to be borne by the respective parties, cannot certainly he construed as an express agreement on the part of Robinson himself, to make the repcdrs; nor do we find anything, either in the recitals or covenants, to support such a construction.

The inquiry then is, whether there is anything on the face of the deed from which an agreement can he fairly implied.

Now it appears by the recitals, that the parties owned adjoining tracts of land, through which flowed two streams of water, and the construction of water works was necessary in order to use said streams for the purpose of pumping water out of the quarries, which were then being or about to be worked on the two properties.

These water works were to be constructed by Robinson, and to be used by him exclusively during the term of the lease, and upon its expiration, either by the effluxion of time or otherwise, the use of one-fourth of the water was reserved to himself, his heirs and assigns forever.

Then follows the covenant by which the parties of the first and second part granted to Robinson, for fifteen years, the exclusive right to quarry marble and alum limestone on the land of said parties, upon the payment of a certain stipulated rent or royalty; and they also covenanted upon *88the expiration of the term of fifteen years, that Rohinson, and his heirs and assigns, should have the privilege of using one-fourth of the water produced by said water works.

The deed then closes with a stipulation in regard to the proportion of expense to be borne by each of the parties, in keeping the water works in repair.

We know of no rule of construction by which an agreement can he implied on the part of Robinson himself to keep the water works in repair after the expiration of his term of fifteen years. The works were upon the land of the plaintiffs and they were entitled to three-fourths of the water power, and were bound to pay three-fourths of the expense in keeping up the repairs, and there is as much reason for implying a contract on their part to make such repairs, as there is for implying a contract on the part of Rohinson and his assigns. And it is obvious upon the facts stated in the declaration, the defendant would have as good a ground of action against the plaintiff for three-fourths of the estimated expense of the repairs which on all sides had been neglected, as the plaintiffs can have against him for the one-fourth.

So long as the deed remained operative, either party could make the repairs, and then compel the other to pay his proportion of the expense, but we find nothing in the deed to justify the construction contended for by the appellants and to permit them to maintain a suit for one-fourth of the estimated cost of repairs which had not been made.

Being of opinion that the demurrer to the defendant’s pleas was properly overruled, for these reasons it becomes unnecessary to decide other questions which were so ably argued on both sides.

Judgment affirmed.