# Viterbo v. Friedlander

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United States Supreme Court
120 U.S. 707
Viterbo v. Friedlander
The lease in question was dated October 27, 1883, and was of 'as ugar 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,' (particulary 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 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 plantationt 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 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 Fed. Rep. 320.
The plaintiff appealed to this court, and filed the following assignment of errors: '(1) 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; (2) that the facts show that the plantation leased as a sugar plantation has been destroyed, and the lease is at an end; (3) 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; (4) 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; (5) that when a lessor is duly put in default to fulfill a part of his obligations as landlord, and refuses, the lease is dissolved.' Chas. Loque and Albert Voorhies, for appellant.
C. F. Buch and G. H. Braughn, for appellees.
Mr. Justice GRAY, after stating the case as above reported, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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