Statement of Facts. of "a sugar plantation, situated in the parish of St. Charles in this state, known as Friedlander'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 $5000, 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 declared that he leaves with said lessee, to be used in the culture of sugar cane on said plantation, thirty-four mules," valued at $3700, 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 Statement of Facts. 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 centre 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 the 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 Statement of Facts. is, it would require seed cane, the canals and ditches to be dug out, and the 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 Fed. Rep. 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 fulfilment 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 fulfil a part of his obligations as landlord, and refuses, the lease is dissolved." Opinion of the Court. Mr. Charles Louque and Mr. Albert Voorhies for appellant. Mr. George H. Braughn and Mr. Charles F. Buck for appellee. MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court. In considering this case, it is important to keep in mind that the view of the common law of England and of most of the United States, as to the nature of a lease for years, is not that which is taken by the civil law of Rome, Spain, and France, upon which the Civil Code of Louisiana is based. The common law and the civil law concur in holding that in the case of an executed sale a subsequent destruction of the property by any cause is the loss of the buyer. Res perit domino. They also concur in holding that performance of an executory obligation to convey a specific thing is excused by the accidental destruction of the thing, without the fault of the obligor, before the conveyance is made. Taylor v. Caldwell, 3 B. & S. 826; Wells v. Calnan, 107 Mass. 514; Pothier, Obligations, nos. 657, 668; Contrat de Louage, no. 65; Civil Code of Louisiana, art. 2219 (2216). But as to the nature and effect of a lease for years, at a certain rent which the lessee agrees to pay, and containing no express covenant on the part of the lessor, the two systems differ materially. The common law regards such a lease as the grant of an estate for years, which the lessee takes a title in, and is bound to pay the stipulated rent for, notwithstanding any injury by flood, fire, or external violence, at least unless the injury is such a destruction of the land as to amount to an eviction; and by that law the lessor is under no implied covenant to repair, or even that the premises shall be fit for the purpose for which they are leased. Fowler v. Bott, 6 Mass. 63; 3 Kent Com. 465, 466; Broom's Legal Maxims (3d ed.) 213, 214; Doupe v. Genin, 45 N. Y. 119; Kingsbury v. Westfall, 61 N. Y. 356; Naumberg v. Young, 15 Vroom, 331; Bowe v. Hunking, 135 Mass. 380; Manchester Warehouse Co. v. Carr, 5 C. P. D. 507. Opinion of the Court. The civil law, on the other hand, regards a lease for years as a mere transfer of the use and enjoyment of the property; and holds the landlord bound, without any express covenant, to keep it in repair and otherwise fit for use and enjoyment for the purpose for which it is leased, even when the need of repair or the unfitness is caused by an inevitable accident; and if he does not do so, the tenant may have the lease annulled, or the rent abated. Dig. 19, 2, 9, 2; 19, 2, 15, 1, 2; 19, 2, 25, 2; 19, 2, 39; 2 Gomez, Variae Resolutiones, c. 3, S$ 1-3, 18, 19; Gregorio Lopez, in 5 Partidas, tit. 8 11. 8, 22; Domat, Droit Civil, pt. 1, lib. 1, tit. 4, sect. 1, no. 1; sect. 3, nos. 1, 3, 6; Pothier, Contrat de Louage, nos. 3, 6, 11, 22, 53, 103, 106, 139–155. It is accordingly laid down in the Pandects, on the authority of Julian, "if any one has let an estate, that, even if anything happens by vis major, he must make it good, he must stand by his contract," si quis fundum locaverit, ut, etiamsi quid vi majore accidisset, hoc ei præstaretur, pacto standum esse; Dig. 19, 2, 9, 2; and on the authority of Ulpian, that "a lease does not change the ownership," non solet locatio dominium mutare; Dig. 19, 2, 39; and that the lessee has a right of action, if he cannot enjoy the thing which he has hired, si re quam conduxit frui non liceat, whether because his possession, either of the whole or of part of the field, is not made good, or a house, or stable or sheepfold, is not repaired; and the landlord ought to warrant the tenant, dominum colono præstare debere, against every irresistible force, omnem vim cui resisti non potest, such as floods, flocks of birds, or any like cause, or invasion of enemies; and if the whole crop should be destroyed by a heavy rainfall, or the olives should be spoiled by blight, or by extraordinary heat of the sun, solis fervore non assueto, it would be the loss of the landlord, damnum domini futurum; and so if the field falls in by an earthquake, for there must be made good to the tenant a field that he can enjoy, oportere enim agrum præstari conductori, ut frui possit; but if any loss arises from defects in the thing itself, si qua tamen vitia ex ipsa re oriantur, as if wine turns sour, or standing corn is spoiled by worms or |