
    Charles L. Pratt & others vs. Grafton Electric Company.
    Worcester.
    September 29, 1902.
    October 30, 1902.
    Present: Holmes, C. J., Morton, Lathrop, Barker, & Hammond, JJ.
    
      Landlord and Tenant.
    
    A lease of a mill privilege and water power contained these clauses: “ The lessor shall not be required to make or pay for any repairs on the leased premises or property, nor to furnish any substitute for the same in case of their destruction, loss or damage. The lessee shall make, at its own expense, all necessary repairs, during the term of the lease of the flume, gates, bulk-heads, and all leased property, to keep them in proper condition for use." The gates of the dam being rotten, the county commissioners made an order that the lessor should repair them. He did not do so, and the commissioners under their statutory powers removed the gates and let down the waters of the pond thus depriving the lessee of the demised water power. On being sued for the rent the lessee set up an alleged eviction by reason of the foregoing facts. Held, that in view of the provisions of the lease there was no implied covenant on the part of the lessor to make such repairs as might be ordered by the county commissioners and therefore that the loss of the use of the water afforded no defence to the action for rent.
    Contract upon an account annexed for rent unpaid under the covenants of a lease of a mill privilege and water power. Writ dated July 1, 1901.
    In the Superior Court it was admitted that the rent sued for had not been paid and that payment was refused on the ground that it had accrued since the drawing down of the waters of the mill pond by the removal of the gates by the county commissioners under the circumstances stated by the court. The case was heard without a jury by GraskiU, J., who reported it for determination by this court.
    If the facts set forth constituted a defence to the action for the rent reserved in the lease, judgment was to be entered for the defendant. If they did not constitute such defence, and the court was of opinion that the plaintiffs were entitled to the entire rent claimed in- the declaration, judgment was to be for the plaintiffs for $600; but if the court was of opinion that the plaintiffs were entitled to recover for the use and occupation of the premises while deprived of the use of the water power, the case was to be remitted for trial in the Superior Court to determine what sum, if any, the plaintiffs were entitled to recover, or such other order was to be made as this court might determine.
    
      0. A. Merrill, for the plaintiffs.
    
      H. Parker, for the defendant.
   Barker, J.

Because the gates were rotten and in need of repair the county commissioners under the police power conferred by Pub. Sts. c. 190, §§ 52-58, removed them and drew down the waters of the pond, thus depriving the defendant of the use of .the water power which was one of the things demised in the lease. Before removing the gates the commissioners had made an order that the lessors should repair the gates, and the lessors had omitted to comply with the order.

The lease contained these clauses: “ The lessor shall not be required to make or pay for any repairs on the leased premises or property, nor to furnish any substitute for the same in case of their destruction, loss or damage.” “ The lessee shall make, at its own expense, all necessary repairs, during the term of the lease of the flume, gates, bulk-heads, and all leased property, to keep them in proper condition for use.”

The lease being of a water mill both parties must be taken to have entered into it in view of the possibility that the water power might be affected by proceedings under the statutes concerning the safety of dams. With express stipulations of the tenor of those quoted it cannot be said that there was an implied covenant on the part of the lessors to make such repairs as might be ordered in such proceedings. Therefore the loss of the use of the water power was not a partial eviction or ouster for which the lessors were in any way responsible, and it affords no defence to the action for rent.

Judgment for the plaintiffs for $600.  