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Brown v. The State.

battery with intent to commit manslaughter, and from that judgment prosecutes this appeal.

What purports to be the instructions of the court are copied by the clerk, but they are not brought into the record by a bill of exceptions, nor by special order of the court We can not, therefore, regard them as properly before us, for instructions can not be made part of the record by the act of the clerk in copying them. Hollingsworth v. State, ante, p. 289; Leverich v. State, 105 Ind. 277.

It is contended by the appellant's counsel that the judgment should be reversed because the verdict does not state whether the intent was to commit voluntary or involuntary manslaughter. We do not think that any question as to the sufficiency of the verdict is presented by the record. We incline to the opinion that such a question as that here sought to be brought before us can not be presented by a motion for a new trial. Marcus v. State, 26 Ind. 101. But it it be conceded that the question is properly presented, it will not avail the appellant, for the failure to specify the degree or kind of manslaughter which the accused intended to commit does not vitiate the verdict. Powers v. State, 87 Ind. 144. It is evident that the failure to more specifically describe the offence could not have prejudiced the material rights of the appellant, for, whether the manslaughter be voluntary or involuntary, the punishment w the same. Powers v. State, supra; Keeling v. State, 107 Ind. 563.

It is now well settled that no judgment, either in a criminal or civil case, will be reversed for an error which does not prejudice the substantial rights of the appellant.

There is evidence fully sustaining the verdict, and we can not disturb it.

Judgment affirmed.

Filed June 30, 1887; petition for a rehearing overruled Sept. 21,1887. Hoagland el al v. The New York, Chicago and St. Louis Railway Co.

No. 11,341. 15» m

Hoagland Et Al. V. The New York, Chicago And
St. Louis Railway Company.

Lease.Implied Covenant for Quiet Enjoyment. Landlord and Tenant.
A covenant for quiet enjoyment is implied in every mutual contract for
leasing land, by whatever form of words the agreement is made.

Same.Stale CanaL—Lease of Use of Surplus Water.Quiet Enjoyment.—Under a lease by the State of the use of so much of the surplus water, not required for navigation, of the Wabash and Erie Canal as would be sufficient to propel certain machinery in the lessee's mills, the implied covenant for quiet enjoyment was such that, so long as the canal was used for purposes of navigation, and while there was, during that period, a surplus of water, the lessor agreed to do no acts which would interrupt or deprive the lessee of its enjoyment.

Same.Abandonment of Canal.Appropriation to Other Uses.Obstruction of
Channel.—The contract in such case did not impose upon the lessor or
its grantees any obligation to keep the canal in repair, or to maintain
it in such a condition that a surplus of water would be available, or
to supply the lessee with any water, whatever, but the latter took the
lease subject to all the vicissitudes which might attend a public work
of that character, and to the right of the lessor or its grantees to aban-
don the canal for purposes of navigation and to appropriate it to other
uses, including the construction of a railroad on the line occupied by
it, thereby filling up the channel.

From the Allen Superior Court.
L. M. Ninde, for appellants.
It. C. Bell, for appellee.

Mitchell,, J.—Pliny Hoagland and Christian Tresselt sued the New York, Chicago and St. Louis Railway Company to recover damages for obstructing the flow of water to their mills.

The facts are, briefly, as follows: On the 29th day of November, 1842, the State of Indiana, having partially completed the Wabash and Erie Canal, made a lease of lots 24 and 25, in the original plat of the city of Fort Wayne, to Allen Hamilton and Jesse L. Williams, and in the same instrument granted them the use of so much of the surplus water Hoagland el al. v. The New York, Chicago and St. Louis Railway Co.

of the Wabash and Erie Canal, not required for the purposes of navigation, as would be sufficient to propel three ruu of four and one-half feet millstones, for a term of thirty years. The lease contained a stipulation that it might be renewed, upon certain terms, for an additional term of thirty years. The lessees took possession under the first lease, and erected a flouring mill, which, with the appurtenances and other improvements made on the leased premises, is alleged to be of the value of forty thousand dollars. Prior to the expiration of the first lease the State transferred its interest in the canal and appurtenances to a corporation created by an act of the General Assembly, known as the Board of Trustees of the Wabash and Erie Canal. Pursuant to the provisions contained in the original lease, the board of trustees, on the 8th day of May, 1872, granted a new lease of substantially the same rights for the additional term of thirty years. Hoagland and Tresselt are the owners of this last lease by assignment. Neither of the leases contained any covenant to repair, nor was there any covenant for quiet enjoyment or for a continuation of the right to use the surplus water from the canal, except such as would be implied by law. The right of the lessees to use water from the canal was made expressly subject to the right of the lessors to draw off the water, either wholly or partially, for the purpose of preventing or repairing breaks, or removing obstructions from the canal. It was also stipulated that if the water should be drawn off for any of the purposes above named, or if the supply became inadequate, and the lessees should be wholly or partially deprived of water, a corresponding reduction should be made in the rent. Under these leases the original lessees and their assigns continued to draw and use the surplus water from the canal until about the year 1882, when, it is alleged, the New York, Chicago and St. Louis Railway Company, having, so far as appears, lawfully acquired the equitable title to the canal and its appurtenances at the point where it traverses the city of Fort Wayne, and for some distance beyond, proHoaglund et aUv. The New York, Chicago and St. Louis Railway Co.

ceeded to construct its roadway and track on the line previously occupied by the canal, thereby filling up the channel of the canal, and causing the water to be obstructed to such an extent as practically to deprive the mill-owners of their power.

The railway company acquired its right to the canal in the manner following: The State, having become largely indebted through the construction of a system of public improvements which it had undertaken, transferred its interest in the canal to the board of trustees of the Wabash and Erie Canal on the 30th day of July, 1847. The board of trustees took the property in trust for the payment, out of the revenues to be derived from its operation, of certain bonds and interest coupons, which were accepted by creditors of the State in lieu of obligations previously owing to them by the latter. The revenues proved insufficient to meet the maturing obligations thus accepted, and the lien of the bondholders, which antedated the leases under which the mill-owners' rights accrued, was foreclosed. The canal and its appurtenances were sold under a decree of foreclosure. The railroad company acquired its right through mesne conveyances under this decree, the title having been conveyed to one Howard for its use. Prior to the acquisition of title by or for the use of the railroad company the canal had become dilapidated, and had fallen into disuse and decay, and had long before that been abandoned as a highway of commerce, or for any public or commercial purpose. The mill-owners had, however, regularly paid to the successive owners, prior to the railway company, the rents stipulated in the lease.

Upon the foregoing facts, the question arises, whether or not the railway company is liable to the owners of the mill for filling up the canal and obstructing the flow of water to their wheels.

The theory upon which the appellants' case proceeds is that, although the State and its grantees may not have incurred an affirmative obligation to keep the canal in repair, or to supHoagland tlaLv. The New York, Chicago and St Louis Railway Co.

ply the lessees with water, the law, nevertheless, by implication, annexed to the lease a covenant for quiet enjoyment. The law having imported such a covenant into the lease, it is contended that the entering upon and filling up the bed of the canal, thus cutting off the flow of water upon the lessees' wheels, was an invasion of their right and a disturbance of their possession by the lessor, and, hence, such an act of aggression and wrong as renders the railway company liable for the resulting injury to their property.

That a covenant for quiet enjoyment, and that the landlord agrees to do no such acts as will destroy the beneficial use of the leased premises, is implied in every mutual contract for leasing land, by whatever form of words the agreement is made, is now too well settled to be doubted or shaken. Avery v. Dougherty, 102 Ind. 443 (52 Am. R. 680); Smith v. Dodds, 35 Ind. 452; Wade v. Halligan, 16 111. 507; Streeter v. Streeter, 43 III. 155; Mack v. Patchin, 42 N. Y. 167 (1 Am. R. 506); Maule v. Ashmead, 20 Pa. St. 482; Eldred v. Leahy, 31 Wis. 546; Wood Landlord and Tenant, 564.

The more serious question usually encountered, is that which relates to the measure of the lessee's damages when such ;i covenant is broken. Ordinarily, if the landlord takes possession or obstructs the tenant in the enjoyment of any material part of the demised premises, without the batter's consent, that will constitute in law an eviction of the tenant, and will operate to release him from any further liability to pay rent, even for so much of the leasehold as he may continue to occupy. Mack v. Patchin, supra; Bentley v. Sill, 35 111. 414; Smith v. Wise, 58 111. 141.

The measure of damages for the breach of a covenant for quiet enjoyment depends largely upon the nature of the estate or title granted, and the character of the landlord's default. The covenant always relates to, and never extends beyond, the interest, estate, or privilege granted. It is restrained and limited to the estate demised. Rawle Covenants (4th ed.), 199, 524.

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