1832.

MARTYR

บ.

BRADLEY.

session of the said demised mill and premises, with the appurtenances, for a short time after the expiration of the said term, to wit, until and upon the 13th of October 1831, when he quitted the same; that during all that time, the Plaintiff was, and still is, the owner of the said demised mill and premises, with the appurtenances; that the said one pair of new mill-stones, with the gear and machinery belonging thereto, remained placed and set up in and upon the said demised mill in the place and stead of the said one pair of old mill-stones, with gear and machinery, at the time of the expiration of the said term, and after the expiration thereof, until and at the time of committing the grievance thereinafter next mentioned; yet the Defendant, well knowing all and singular the premises, but contriving and wrongfully intending to injure and aggrieve the Plaintiff, and to lessen and injure his estate and interest in the said premises, with the appurtenances, and to diminish the value of the said water corn mill, and to deprive him of the benefit and advantage of the said one pair of new mill-stones, with the gear and machinery belonging thereto, after the expiration of the said term, and whilst he the Defendant was in possession of the said demised water corn mill and premises, with the appurtenances, by the license and permission of the Plaintiff as aforesaid, to wit, on the 10th of October in the year last aforesaid, in the county aforesaid, wrongfully and injuriously, and without the license or consent, and against the will of the Plaintiff, removed the said one pair of new mill-stones, with the gear and machinery belonging thereto, and restored and put back the said one pair of old mill-stones, with the gear and machinery thereof, and carried away the said one pair of new mill-stones, with the gear and machinery belonging thereto, being of great value, to wit, the value of 60l., from, out, and off the said water corn-mill, and converted and disposed thereof to his own use, whereby

the

1832.

MARTYR

the said estate and interest of the Plaintiff in the said mill and premises was greatly injured, lessened, and reduced in value, to wit, at, &c. and he the Plaintiff wholly lost and was deprived of the said one pair of BRADLEY. new mill-stones, and the gear and machinery belonging

thereto.

At the trial before Tindal C. J., it appeared that during his term the Defendant had substituted two new French mill-stones, for two old ones, which he had found on the premises. The lower stone was rammed in and fixed with mortar; the upper revolved on its axis. When the Defendant quitted the premises at the end of about ten years, he took away these new stones, and left in their place those which he had found on entering. A witness stated that it was the general custom for the tenant to remove such stones.

The Chief Justice, however, being of opinion that the language of the covenant included the stones in question, a verdict was taken for the Plaintiff, with leave for the Defendant to move to set it aside.

Wilde Serjt. obtained a rule nisi accordingly, citing Naylor v. Colling (a), where it was held, that a covenant by a tenant to yield up in repair, at the expiration of his lease, all buildings which should be erected during the term upon the demised premises, includes buildings erected and used by the tenant for the purpose of trade and manufacture, only when such buildings are let into the soil, or otherwise fixed to the freehold. In the present case the upper mill-stone, at least, was moveable, and neither of them could be deemed a portion of the building demised.

Andrews Serjt. shewed cause. He contended that the stones being an essential part of the mill, an improve(a) 1 Taunt. 19.

V.

ment

1832.

MARTYR

V.

BRADLEY.

ment of the stones was an improvement of the mill within the meaning of the covenant, and the rather, as the lessor would naturally desire to guard himself by contract against the custom of which evidence had been given at the trial.

Wilde. Looking at the demise, and the words which accompany the term improvements in the covenant, it is to be inferred that by improvements in the mill, the parties meant improvements of the principal and solid structure, not improvements in utensils or machinery merely accessary to the principal structure. If it applies to the stones, it must be held to apply to the straps, ropes, cornbin, and all the other chattel gear, which are uniformly deemed the property of the tenant. Renovations of detached portions of the machinery are not improvements of the mill, which, after the renovations, remains as it was before.

TINDAL C.J. The question is, what it was the intention of the parties to comprehend in the word improvements, and in particular whether they intended to include stones, such as those which have been put up and removed by the Defendant. The words of the covenant are, "and the said water corn-mill, stable, waggon-lodge, and other the premises thereby demised, being so well and substantially repaired, paved, scoured, glazed, cleansed, amended, and kept as aforesaid, shall and will, at the expiration, or other sooner determination of this demise, peaceably and quietly leave, surrender, and yield up unto the Plaintiff, his heirs or assigns, together with all locks, bolts, bars, and other fixtures, fastenings, and improvements which now are, or which shall or may at any time during the continuance of this demise, be fixed, fastened, or set up, in, upon, or about the premises, or any part thereof, in good plight and condition, reasonable use and wear only excepted."

That

That improvements is a word large enough to cover alterations in the working part of the mill, appears from the words "fixed, fastened, or set up in or upon the demised premises, or any part thereof." For, in looking to see what the premises are, we find them described as "all that newly erected water corn-mill, with the appurtenances thereunto belonging, situate, lying and being at Orford in the county of Kent, then lately erected by the Plaintiff, together with the two pair of mill-stones, and the several bolting-mills, machines, gearworks, running-tackle, corn and other bins, and all other machines that were in or affixed to and about the said water corn-mill, or any part thereof; together, also, with a certain bran and counting-house." The word must mean, therefore, whatever was fixed to the premises. These stones had been fixed for ten years; the lower one rammed in, the upper, supported on its axis. And there are other words in the covenant which shew that it is not confined to the structure or building alone: "In good plight and condition, reasonable use and wear only excepted." Now, "reasonable wear" is more likely to apply to machinery, which is the subject of wear, than to the more permanent parts of the premises. The evidence of the custom for tenants to remove stones of this kind, may account for the parties having resorted to such a covenant, to exclude any doubt on the question. It is to be observed, too, that this is the covenant of the Defendant; and it is a universal rule, that a covenant must be taken most strongly against the party making it. When we see that in Naylor v. Colling a covenant to leave all buildings in repair was held to extend to buildings which by law the defendant was allowed to remove, why are we precluded from saying that this covenant also includes improvements which, but for the covenant, the tenant might have considered his

own.

PARK

1832.

MARTYR

ข.

BRADLEY.

1832.

MARTYR

V.

BRADLEY.

PARK J. This is purely a question as to the construction of the covenant; but Naylor v. Colling is a decision in favour of the plaintiff; for the Court held there, that erections and buildings were within the covenant, although structures not let into the soil might be removed. But these stones were clearly a part, and an essential part of the mill, and if not an improvement, why were they put there? The exception of wear and tear seems particularly applicable to mill-stones, and makes it more clear that they were in the contemplation of the parties to the covenant.

GASELEE J. I am of the same opinion. If the construction for which the defendant contends were to prevail, the lessee, after wearing out the lessor's mill-stones, might replace them with new ones, and after they had formed part of the mill for some years, remove them on quitting, leaving the landlord those which had been worn out in the tenant's service.

BOSANQUET J. I am of opinion that the plaintiff is entitled to retain the verdict, and that these stones constituted an improvement of the premises within the meaning of the covenant. That covenant contains an engagement, that the Defendant shall repair the mill and other the premises thereby demised, and leave all fixtures and improvements fixed, fastened, and set up in and about the same. These mill-stones were improvements fixed and set up in the premises.

The tenant, perhaps, was not bound to substitute other stones for the landlord, but having substituted new ones for those which were unserviceable from wear and tear, he was bound under this covenant to leave them as improvements.

Rule discharged.