APPEAL by the plaintiff, Martha Tham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 6th day of June, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Erie Trial Term.
Charles Oishei, for the appellant.
George Clinton, Jr., for the respondent.
The plaintiff, the assignee of Anton Tham, the tenant of the defendant's farm in the town of Clarence, Erie county, has brought this action to recover damages for the conversion of a quantity of wheat and rye. Tham leased the farm of the defendant and entered into possession April 1, 1906, at a rental of $450 per year, payable semi-annually at the end of each six months.
At the time the lease was made Carroll Brothers were operating a quarry, as the lessee knew, on a part of the leased premises, and its further development would inevitably interfere, to some extent, with the tilling of the farm, and that condition was provided for by covenants in the lease, as follows: 'The lessee further covenants and agrees with the lessor that the firm of Carroll Brothers, their heirs and assigns, may have the free use of such portions of the farm as they may from time to time require for the purpose of carrying on their business of stone quarrying, stripping earth from stone to be quarried, piling earth that has been stripped from the land to be used for quarrying, and for any other purpose or use which may be necessary or incidental to their business. The said Carroll Brothers may have the free use of any space now occupied or to be occupied by railroad tracks now or which may hereafter be laid, and of any or all such space for the buildings now or which may hereafter be erected, moved or placed thereon, for the carrying on of their business or for the accommodation of their employees.
'The lessee further covenants and expressly agrees that in no event shall the said firm of Carroll Brothers, or either of them individually, their executors, administrators or assigns, be held liable to the lessee for any damage to crops, animals, machinery or persons by reason of blasting, or by or on account of any damage caused by any machinery, engine, boiler or apparatus used in their business, or for or on account of any act or omission of their agents, servants or employees causing damage to the lessee.'
In 1906 Carroll Brothers constructed a railroad track over a part of these premises, and another in the early part of 1907, piled dirt on some of the land and made a driveway to the
quarry. All these improvements were incidental and essential to the development of the quarry. Quite a tract of land, probably thirty acres or more, was rendered untenantable by these developments in connection with the excavation of the stone, and the plaintiff claims these acts were tantamount to an eviction from the leased premises.
We think the position untenable in view of the circumstances which appear in the record.
Three semi-annual payments of the rent were made by the lessee in accordance with the agreement, the last October 1, 1907. The railroad tracks were then laid, the land flooded and substantially all the acts committed which are now urged to sustain the claim of eviction. The lessee continued in possession of the premises in pursuance of the contract until April 1, 1908, when he abandoned them and without paying any part of the six months' rent then maturing. He complained to the defendant of the appropriation of the land and asked for a reduction in the rent of fifty dollars a year, and quit before the negotiations were concluded on this subject.
When the lessee went into possession of the farm there was a quantity of wheat growing thereon sowed by the preceding tenant and which he removed. By the terms of the lease the lessee was permitted to sow a like quantity of wheat to be harvested after the expiration of the term. The lessee sowed the wheat and rye and harvested the same in the summer of 1908, leaving the grain in the shock in the field, which he later attempted to thresh, but the defendant would not permit this until the rent accrued was paid. The defendant afterwards ...