The following opinion was filed at the January term, 1872.
LyoN, J.
This action is to recover certain rents, which the plaintiff claims are due to him from the defendants by virtue [299]*299of tbe covenants contained in a certain lease executed by tbe assignors of tbe plaintiff to tbe defendants. This lease bas occasionally been before this court during tbe last sixteen years, and is fully set out in tbe opinion delivered by tbe late Chief Justice Whiton in the case of Noonan & McNab v. Orton, 4 Wis., 335. Tbat action was brought to compel Orton to extend such lease for ninety-nine years, pursuant to one of tbe covenants contained in it. It bas made its appearance in this court several times during its progress, and is still pending, for some purposes at least, in tbe circuit court for Eacine county, to which it was removed many years ago from tbe circuit court for Milwaukee county. Tbe cause was brought to a bearing in the Eacine circuit court a few years ago, and tbe plaintiffs, Noonan & McNab, obtained judgment tbat Orton extend the lease for tbe specified term by executing a lease for such term containing tbe same covenants-which are contained in tbe original lease, to wit: to raise tbe dam to tbe height of sixteen feet, and during tbe continuance of such lease to keep tbe dam and flume conveying water to tbe mill of Noonan & McNab, in good repair.
An appeal was taken by Orton from tbat judgment, and tbe decision thereof developed a radical difference of opinion between tbe chief justice and Mr. Justice Cole relative to tbe rights and obligations of tbe parties. They concurred, however, in reversing tbe judgment of the circuit court. Tbe late Mr. Justice PAINE, who was then a member of this court, having been of counsel in tbe case at some period during its history, took no part in tbe decision.
The opinions of tbe chief justice and of Justice Cole will be found in tbe 27 Wis., 277, 294, 309. By reference thereto it will be seen tbat the former bolds tbat tbe lease was extended for ninety-nine yearn by tbe act of giving notice tbat tbe lessees elected to have tbe same extended; tbat no new lease was necessary ; and that Orton should not be compelled to execute one; while, on tbe other band, tbe latter bolds tbat Orton should be com[300]*300pelled to extend such lease, but with qualified covenants restricting his obligation in respect to the dam and flume to the time during which he should remain the owner of the demised premises and property.
In this action the defendants interposed a counterclaim for damages for a breach of the covenant to extend or renew the lease, to which the plaintiff replied that in April, 1866, he sold and conveyed said water power, land and dam in said lease mentioned, to one D. C. Mason, and’ has had no possession or title thereto since that time. The defendants demurred to such reply, and assigned for ground of demurrer that the reply did not state facts sufficient to constitute a valid defense to such counterclaim.
From an order of the county court overruling such demurrer, the defendants appeal to this court.
I. It is perfectly apparent that if the views of the chief justice are correct, the counterclaim of "the defendants fails to state a cause of action. If Orton is under no obligation to renew the lease, then of course the lessees can have no right of action against him for failing to do so. In such case the demurrer to the reply might well have been sustained as a demurrer to the counterclaim. But instead of doing so, the court overruled the demurrer. The defendants cannot be heard to object that their own pleading should have been held invalid.
II. If the views of Mr. Justice Cole ought to prevail, the counterclaim contains a good cause of action, and the defendants are entitled to recover damages for the breach of the covenant to extend or renew the lease. The measure of damages in that case would probably be the value of the lease, although, under some of the authorities, there may be room for doubt whether, before eviction, this is the correct rule. For the purposes of this appeal, however, we will assume it to be so. Conceding, then, that the defendants must be allowed the value of the renewed or extended lease as damages for the plaintiff’s breach of the covenant to execute the same, it seems [301]*301obvious that sucb value must depend somewhat upon tbe covenants contained in it. A lease of 2,000 cubic inches of water under a head of sixteen feet, for ninety-nine years, containing the personal covenant of the plaintiff to maintain the dam at that height and to keep the dam and the flume which con • ducted the water to the mill of the defendants in repair during the whole term, is certainly more valuable than it would be were such personal covenants restricted to such time as the plaintiff might remain the owner of the demised premises and property. The personal covenant of the plaintiff in such case has a money value, which necessarily enhances the value of the lease, and the time which those covenants are to run is an important element to be considered in ascertaining such value. Hence, the plaintiff may properly plead and prove when his personal liability on the covenants ceased, in order to reduce damages.
Upon this theory, therefore, the reply was well pleaded, and the demurrer thereto properly overruled.
IH. W e are strongly urged by the counsel for the defendants to give a decision construing definitely the covenant to extend the lease, so that the parties may know their rights and obligations in this respect, when the action shall be tried. This request appears reasonable, and were it not for certain special circumstances, which will presently be mentioned, we should doubtless comply with it.
It is apparent, in view of the difference of opinion before mentioned, that if this covenant is construed by this court as now constituted, I must act as umpire between my brethren, and thus, in a certain sense, assume the responsibility of deciding the question involved. Under ordinary circumstances I "should not shrink from this, or any other official duty. But it is proper to state that the judgment in the circuit court for Racine county, mentioned in the foregoing statement of facts, was rendered by me when I presided in that court. By that judgment, and the findings of fact and law upon which it was based, I gave a construction to this covenant to extend the [302]*302lease, wbicb construction was substantially different from that given to it by either of my brethren. It is trae that I supposed until recently that such judgment was rendered pro forma, for the purpose of getting the case to the supreme court in order to obtain an authoritative construction of this covenant of the lease. Until some time after the judgment was rendered, such was my recollection of the fact. But I find with the record, which comes here on an. appeal from an order in the case pending in the Racine circuit court, an affidavit made by the counsel for the defendants, to the effect that his recollection is that the judgment was not rendered pro forma, but that the facts and law were, to some extent at least, considered by me. I freely concede that the counsel would be more likely to recollect the facts correctly than I would ; and I do not hesitate to adopt his statement as the correct one, although different from my former recollection of those transactions.
Free access — add to your briefcase to read the full text and ask questions with AI
The following opinion was filed at the January term, 1872.
LyoN, J.
This action is to recover certain rents, which the plaintiff claims are due to him from the defendants by virtue [299]*299of tbe covenants contained in a certain lease executed by tbe assignors of tbe plaintiff to tbe defendants. This lease bas occasionally been before this court during tbe last sixteen years, and is fully set out in tbe opinion delivered by tbe late Chief Justice Whiton in the case of Noonan & McNab v. Orton, 4 Wis., 335. Tbat action was brought to compel Orton to extend such lease for ninety-nine years, pursuant to one of tbe covenants contained in it. It bas made its appearance in this court several times during its progress, and is still pending, for some purposes at least, in tbe circuit court for Eacine county, to which it was removed many years ago from tbe circuit court for Milwaukee county. Tbe cause was brought to a bearing in the Eacine circuit court a few years ago, and tbe plaintiffs, Noonan & McNab, obtained judgment tbat Orton extend the lease for tbe specified term by executing a lease for such term containing tbe same covenants-which are contained in tbe original lease, to wit: to raise tbe dam to tbe height of sixteen feet, and during tbe continuance of such lease to keep tbe dam and flume conveying water to tbe mill of Noonan & McNab, in good repair.
An appeal was taken by Orton from tbat judgment, and tbe decision thereof developed a radical difference of opinion between tbe chief justice and Mr. Justice Cole relative to tbe rights and obligations of tbe parties. They concurred, however, in reversing tbe judgment of the circuit court. Tbe late Mr. Justice PAINE, who was then a member of this court, having been of counsel in tbe case at some period during its history, took no part in tbe decision.
The opinions of tbe chief justice and of Justice Cole will be found in tbe 27 Wis., 277, 294, 309. By reference thereto it will be seen tbat the former bolds tbat tbe lease was extended for ninety-nine yearn by tbe act of giving notice tbat tbe lessees elected to have tbe same extended; tbat no new lease was necessary ; and that Orton should not be compelled to execute one; while, on tbe other band, tbe latter bolds tbat Orton should be com[300]*300pelled to extend such lease, but with qualified covenants restricting his obligation in respect to the dam and flume to the time during which he should remain the owner of the demised premises and property.
In this action the defendants interposed a counterclaim for damages for a breach of the covenant to extend or renew the lease, to which the plaintiff replied that in April, 1866, he sold and conveyed said water power, land and dam in said lease mentioned, to one D. C. Mason, and’ has had no possession or title thereto since that time. The defendants demurred to such reply, and assigned for ground of demurrer that the reply did not state facts sufficient to constitute a valid defense to such counterclaim.
From an order of the county court overruling such demurrer, the defendants appeal to this court.
I. It is perfectly apparent that if the views of the chief justice are correct, the counterclaim of "the defendants fails to state a cause of action. If Orton is under no obligation to renew the lease, then of course the lessees can have no right of action against him for failing to do so. In such case the demurrer to the reply might well have been sustained as a demurrer to the counterclaim. But instead of doing so, the court overruled the demurrer. The defendants cannot be heard to object that their own pleading should have been held invalid.
II. If the views of Mr. Justice Cole ought to prevail, the counterclaim contains a good cause of action, and the defendants are entitled to recover damages for the breach of the covenant to extend or renew the lease. The measure of damages in that case would probably be the value of the lease, although, under some of the authorities, there may be room for doubt whether, before eviction, this is the correct rule. For the purposes of this appeal, however, we will assume it to be so. Conceding, then, that the defendants must be allowed the value of the renewed or extended lease as damages for the plaintiff’s breach of the covenant to execute the same, it seems [301]*301obvious that sucb value must depend somewhat upon tbe covenants contained in it. A lease of 2,000 cubic inches of water under a head of sixteen feet, for ninety-nine years, containing the personal covenant of the plaintiff to maintain the dam at that height and to keep the dam and the flume which con • ducted the water to the mill of the defendants in repair during the whole term, is certainly more valuable than it would be were such personal covenants restricted to such time as the plaintiff might remain the owner of the demised premises and property. The personal covenant of the plaintiff in such case has a money value, which necessarily enhances the value of the lease, and the time which those covenants are to run is an important element to be considered in ascertaining such value. Hence, the plaintiff may properly plead and prove when his personal liability on the covenants ceased, in order to reduce damages.
Upon this theory, therefore, the reply was well pleaded, and the demurrer thereto properly overruled.
IH. W e are strongly urged by the counsel for the defendants to give a decision construing definitely the covenant to extend the lease, so that the parties may know their rights and obligations in this respect, when the action shall be tried. This request appears reasonable, and were it not for certain special circumstances, which will presently be mentioned, we should doubtless comply with it.
It is apparent, in view of the difference of opinion before mentioned, that if this covenant is construed by this court as now constituted, I must act as umpire between my brethren, and thus, in a certain sense, assume the responsibility of deciding the question involved. Under ordinary circumstances I "should not shrink from this, or any other official duty. But it is proper to state that the judgment in the circuit court for Racine county, mentioned in the foregoing statement of facts, was rendered by me when I presided in that court. By that judgment, and the findings of fact and law upon which it was based, I gave a construction to this covenant to extend the [302]*302lease, wbicb construction was substantially different from that given to it by either of my brethren. It is trae that I supposed until recently that such judgment was rendered pro forma, for the purpose of getting the case to the supreme court in order to obtain an authoritative construction of this covenant of the lease. Until some time after the judgment was rendered, such was my recollection of the fact. But I find with the record, which comes here on an. appeal from an order in the case pending in the Racine circuit court, an affidavit made by the counsel for the defendants, to the effect that his recollection is that the judgment was not rendered pro forma, but that the facts and law were, to some extent at least, considered by me. I freely concede that the counsel would be more likely to recollect the facts correctly than I would ; and I do not hesitate to adopt his statement as the correct one, although different from my former recollection of those transactions.
The fact being conceded that I rendered that judgment upon some deliberation, and not entirely pro forma, it becomes a very serious question whether I am not disqualified to take part in this court in deciding the same matters which I decided in the court below.
Sec. 22, ch. 119 of the revised statutes, is as follows: “ No judge of an appellate court, or of any court to which a writ of certiorari or of error shall- be returnable,’ shall decide or take part in the decision of any cause or matter which shall have been determined by him while sitting as a judge of any other court, unless there shall not be a quorum without him.”
I must be permitted to satisfy myself fully that this statute does not disqualify me from giving a construction to the covenants of the lease, before I can consent to assume so grave a responsibility.
By the Court.— Order affirmed.