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VITERBO V. FRIEDLANDER, 120 U. S. 707 (1887)

U.S. Supreme Court

Viterbo v. Friedlander, 120 U.S. 707 (1887)

Viterbo v. Friedlander

Submitted January 4, 1888

Decided March 7, 1887

120 U.S. 707


The Civil Code of Louisiana, following the civil law of Rome, Spain, and France and differing from the common law, regards a lease for years as a mere transfer of the thing leased, and holds the landlord bound, without any express covenant, to keep it in repair and otherwise fit for the use for which it is leased, even when the want of repair or the unfitness is caused by an inevitable accident, and if he does not do so, authorizes the tenant to have the lease annulled or the rent abated.

Page 120 U. S. 708

In construing those articles of the Civil Code of Louisiana, which were originally enacted both in French and in English, the French text may be taken into consideration for the purpose of clearing up obscurities or ambiguities in the English text.

The breaking of a crevasse in the levees by the waters of the Mississippi River is a fortuitous or unforeseen event within the meaning of the Civil Code of Louisiana, and if in consequence thereof a sugar plantation, leased for five years, with the buildings, mules and implements necessary for the cultivation of sugar cane, and with the growing crop of cane (which the lessee agrees to cut and plant as seed cane, and, by way of reimbursing the lessor for, to leave a certain amount of growing cane on the plantation at the end of the lease), is overflowed for three mouths, all the cane destroyed, the canals and ditches necessary for drainage filled up, the bridges swept away, and a deposit from three to six inches deep left over the whole ground, making it necessary, in order to cultivate it as a sugar plantation the following year, to spend large sums of money to dig out canals and ditches, repair bridges, and buy seed cane, the plantation is partially destroyed, or ceases to he fit for the use for which it was leased, within the meaning of articles 2697 (2667) and 2699 (2669) of that code, and the lessee is entitled to have the lease annulled, notwithstanding the provision of article 2743 (2714) that the tenant of a predial estate cannot claim an abatement of rent for a destruction of the whole or a part of his crop by inevitable accidents, unless they are of such a nature that they could not have been foreseen by either party when the lease was made.

This was a petition, filed October 2, 1884, by a citizen of France against a citizen of Louisiana to annul a lease of a sugar plantation from the defendant to the petitioner for five years, and alleging that by an extraordinary rise of the Mississippi River, which could not have been foreseen, and without any fault of the lessee, a crevasse was made in the levees of a neighboring plantation, the leased plantation overflowed, all the cane destroyed, and the plantation rendered wholly unfit for the purpose for which it had been leased, and that the petitioner requested the defendant, as soon as the water from the crevasse should have withdrawn, to put back the plantation in the same condition as when leased, and to replace the plant cane and stubble, and the defendant refused to do so. By direction of the circuit court, the case was transferred to the chancery side, the petitioner filed a bill in equity, containing similar allegations, and praying for like relief.

The lease in question was dated October 27, 1883, and was

Page 120 U. S. 709

of "a sugar plantation, situated in the Parish of St. Charles, in this state, known as Friendlander's Plantation," and "all the buildings, outhouses, fences, sugar houses, and other appurtenances thereof," particularly described, from September 27, 1883, to December 15, 1888 at an annual rent of $5,000, which the lessee agreed to pay, and contained the following provisions:

"And the said lessor further declared that he does hereby give unto said lessee all of the growing cane crop of 1883 now standing in the field, which the said lessee expressly binds himself to plant as seed cane on said plantation. And, to reimburse said lessor for said cane crop, said lessee binds himself to leave on said plantation, for the sole use and benefit of said lessor at the termination of this lease, December 15, 1888, eighty-five acres of full-standed seed cane (such as is usually called first year's stubble) which has been thoroughly cultivated, cut at the proper time for saving seed, and carefully windrowed, especially for seed; and, in addition thereto, said lessee shall also leave on said plantation for said lessor not less than two hundred acres of stubble from what is called plant cane, which shall be properly protected in the ground."

"And said lessee binds himself to deliver said plantation at the expiration of this lease, with the ditches in a good draining condition, sufficiently so for the proper cultivation of as much land as may have been under cultivation by said lessee during his fourth year's occupancy of said plantation, and the foregoing clause means that said lessee shall not neglect nor allow the filling up of said ditches during the last year of this lease any more than ditches usually fill up in one year on a well managed sugar plantation in good cultivation."

"And the said lessor further declares that he leaves with said lessee, to be used in the culture of sugar cane on said plantation, thirty-four mules,"

valued at $3,700, and implements of husbandry and sugar culture (particularly enumerated), valued at $500, all of which the lessee agrees to return in kind or value at the expiration of the lease.

The answer admitted the execution of the lease, and that in March, 1884, when the waters of the Mississippi River were

Page 120 U. S. 710

at their usual spring rise or flood, the levees along its banks near the leased property gave way, and inundated the country to some extent, and the demand and refusal to restore the plantation to its original condition and to replace the cane; but denied the other allegations of the bill.

After the filing of a general replication, the case was referred to a master, who reported the facts as follows:

"The lessee, on entering upon the lease, according to the evidence, found the ditches in a bad condition, and no canal into which to drain the fields, except one on the lower side of the plantation. In order to prepare the ground for cultivation of sugar cane, he decided that a more perfect system of drainage was necessary, and he caused a canal to be dug through the center of the plantation from the front to the swamp, and enlarged and deepened the ditches, securing thereby a better system of drainage."

"In March, 1884, a crevasse occurred upon what is known as the 'Davis Plantation,' the back waters from which crevasse overflowed a large portion of the Friedlander Plantation, especially that portion used for cultivation, and it was under water for several months."

"The damage caused by this overflow I find from the evidence to be as follows: the lessee lost, by reason of said overflow, the entire crop of sugar cane of 1884 -- that is, the 200 acres of stubble cane and the 85 acres of plant cane were destroyed; the ditches were partially, and in some places entirely, filled; the canals, especially the one dug by the lessee, were partially filled, and the bridges generally swept away; the water remained over the land until July, 1884; a deposit was left over the land of from three inches to six inches. To cultivate the land as a sugar plantation he following year (1885), it would require ditches to be redug, the canals to be opened or cleaned out, the bridges replaced, and seed cane to be obtained and planted, all at considerable expense, to put the plantation in the condition it was at date of the crevasse."

"The plaintiff admits the plantation would grow a crop of cane. But it would require a considerable sum of money and labor to put it in good condition for the growing of cane -- that

Page 120 U. S. 711

is, it would require seed cane, the canals ditches to be dug out, and bridges rebuilt. This work is an incident to the growing of a crop of sugar cane annually. Some years it may require more seed cane, more labor to put the canals and ditches in order, than in others. The land therefore has not ceased to be fit for the purposes for which it was leased. On the contrary, some of the witnesses suggest that the deposit has enriched and greatly benefited the land."

The master, after discussing at length the law of the case, concluded and reported that the property leased was not destroyed, and had not ceased to be fit for the purpose for which it was leased; that the loss of the growing crop, the partial filling of the canals and ditches, and the washing away of the bridges, were not caused by an "unforeseen event;" that equity could give no relief to the plaintiff, and that his bill should be dismissed.

Exceptions taken by the plaintiff to the master's report, in regard both to his findings of fact and to his conclusions of law, were overruled by the circuit court, and a decree entered for the defendant dismissing the bill. 24 F. 320.

The plaintiff appealed to this Court, and filed the following assignment of errors:

"1st. That when property leased has been rendered unfit for the purpose for which it was leased, by the act of God, the lease is dissolved."

"2d. That the facts show that the plantation leased as a sugar plantation has been destroyed, and the lease is at an end."

"3d. That sugar cane, which is in the form of plant and rattoon or stubbles, is a part and portion of the land, and when destroyed the destruction annuls the lease."

"4th. That the draining ditches and canals, dug by the lessee in fulfillment of his obligation under his lease, become the property of the lessor, and when destroyed by a crevasse it becomes the duty of the lessor to put them back in the condition they were before the crevasse."

"5th. That when a lessor is duly put in default to fulfill a part of his obligations as landlord, and refuses, the lease is dissolved. "

Page 120 U. S. 712

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