Polack v. Pioche , 35 Cal. 416 ( 1868 )

By the Court, Sanderson, J.:

This is an action to recover damages for the nonperformance of a covenant to repair. By the terms of the covenant “damages by the elements or acts of Providence” are excepted from its operation.

The case was tried by the Court below without a jury, and has been brought here upon the findings only, it being claimed that the conclusions of law, which were in favor of the defendant, are erroneous.

The facts upon which the case turns were found by the Court below substantially as follows: During the term the demised premises were damaged to the amount of six thousand dollars by “ a torrent of water overflowing and sweeping through” them. The torrent was produced by the accumulation of waters from the unusual rains of 1862, which were collected in a natural reservoir in the vicinity of the premises, upon lauds of some other person than the ■ plaintiff or defendant, and separated from the demised premises by'"'lands in the possession of and belonging to persons other than the plaintiff or defendant. In ordinary seasons the natural embankment of the reservoir was sufficient to confine the water, or to prevent it from overflowing or breaking through, but was not sufficient for that purpose in the Winter of 1862, which was remarkable for extraordinary rains and floods. Prior to the torrent which caused the damages in question, however, the embankment had been strengthened by the labor of the adjacent land owners, among whom was the defendant, so as to make it sufficient to withstand even the rains and floods of that Winter; but “ some person or persons unknown to the defendant, and without his knowledge or consent, interfered with the natural embankment of the reservoir, and through their agency and their interference the embankment was made to give way, and the whole body of water in the reservoir was suddenly' precipitated upon the premises,” causing the damages in question.

A general covenant to repair is binding upon thé tenant under all circumstances. If the injury proceeds from the act of a stranger, from storms, floods, lightning, accidental fire, or public enemies, he is as much bound to repair as if it came from his own voluntary act. Such has been the settled rule since the time of Edward III. (2 Platt on Leases, 186, 187, and cases there cited.) If the tenant desires to relieve himself from liability for injuries resulting from any of the causes above enumerated, or from any other cause whatever, he must take care to except them from; the operation of his covenant. (Id. 186, 187.) So the defendant in the present case is liable, unless, in the language of the exception contained in his covenant, the damages were caused by “the elements or the acts of Providence.”

^ What acts are to be regarded in the legal sense as “acts of God” is well settled. Upon that quest-ion the case of Forward v. Pittard, 1 T. R. 27, is a leading authority. The plaintiff’s goods, while in the possession of the defendant as a common carrier, were destroyed by fire not caused by lightning or the negligence of the defendant. The question was, whether the fire was, in a legal sense, caused by the “act of God.” The Court of King’s Bench ruled that it was not, and Lord Mansfield said: “¡Now, what is the act of God? I consider it to mean something in opposition to the act of man; for everything is the act of God that happens by his permission; everything by his knowledge, * * * such acts as could not happen by the intervention of man, as storms, lightnings, and tempests.” To the same effect are all the cases. (McArthur v. Sears, 21 Wend. 190; Ewart v. Street, 2 Bailey, 157; Fish v. Chapman, 2 Geo. 349; Merritt v. Earle, 29 N. Y. 115; Turner v. Tuolumne Water Co., 25 Cal. 403.) The expression excludes the idea of human agency, and if it appears that a given loss has happened in any way through the intervention of man, it cannot be held to have been the act of God, but must be regarded as the act of man.

Can a different rule be applied to the interpretation of the expression “the act of the elements?” Is it more comprehensive than the former ? Does it include acts which the former does not? The answer is not material to the present purpose; for be that as it may, for the purpose of determining the cause of a particular event, the same test must be resorted to in the one case as in the other. If an act to which human agency has in any way contributed, cannot be considered as the act of God, but must be held to be the act of man, how does it become less the act of man if we substitute the elements in the place of God? The elements are the means by which God acts, and we are unable to perceive why “damages by the elements” and “damages by the acts of God ” are not convertible expressions in the law of leases.

The act could not have happened in the one case more than in the other, had not the agency of man intervened. It follows that before an act can be considered the act of the elements it must appear that no human agency intervened, for if it did, the elements cannot be regarded as the cause, but only as the means. Had the waters in question broken through the embankment of the natural reservoir in which they had accumulated without the agency of man, the loss would have fallen within the exception contained in the defendant’s covenant. The case shows, however, that they would not have broken through the embankment but for the help of man. The damages in question were, therefore, caused by the act of some stranger. Against the acts of strangers the defendant might have protected himself by excepting them from the operation of his covenant. Not having done so, however, he is liable, as we have seen, by force of his covenant.

Upon the findings, the plaintiff is entitled to judgment for the sum of six thousand dollars. The judgment is, therefore, reversed, and the Court below directed to enter a judgment for the sum of six thousand dollars, together with the costs below and here.