Merryman v. Shipley

Robinson, J., 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. ⁸⁶ The 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 ⁸⁷ to 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,