Sheldon v. Hamilton

*232 Douglas, J. (1) This is a petition for a new trial of an action of debt for rent for a dwelling-house in the city of Providence. The questions involved arise upon the claim of the defendant to set off against the rent, which is not disputed, certain sums which he paid the city of Providence for water used upon the premises while in his possession. There is no substantial disagreement as to the facts. The plaintiff leased the dwelling-house to the defendant June 17, 1892, the rent reserved being $1,000 per annum for the term of five years from July 1, 1892. At the time of defendant’s entry there were pipes and fixtures in the house adapted to the use of the city water, and a meter for the measurement of the quantity used. The pipes were connected with the city mains and the water was on. The regulations of the water department show that where water is so supplied the water department requires a payment in advance in January, and unless this payment is exhausted no further charge is made till the beginning of the next year. The first bill which was presented in this case after the defendant entered was paid by the plaintiff in January, 1893, expecting, as he says, that the defendant would repay him. Accordingly he presented it to the defendant with his bill for the first quarter’s rent for 1893, and thereupon the difference of opinion between them as to their rights and obligations was disclosed. After that each party insisted that the other should pay the water-bills, and, the plaintiff refusing to pay, the defendant, in order to prevent the city from shutting off the water, paid them, and now claims that he should be re-imbursed therefor by the plaintiff. The bills were made out by the water department against the plaintiff. At the trial of the case in the Common Pleas Division the defendant made several requests for rulings which in substance raised the question whether, in the absence of any stipulation in the lease, a landlord is bound to furnish his tenant with water from the city pipes when the house is fitted with pipes and fixtures obviously designed to receive and distribute it. The court refused these requests, and on motion of the plaintiff directed a verdict for the plaintiff for the full *233 amount of the rent unpaid. .To these refusals and direction the defendant duly excepted. (3) (2) We think the 'action of the Common Pleas Division was correct. It is not the duty of a landlord-to furnish water for the use of his tenant unless he has agreed to do so. The pipes and fixtures are appurtenances of the house, as gas-pipes and fixtures in place at the time of the letting are, and the use of them passes necessarily with the tenement. But the water, like gas, is a commodity in no way attached to the realty, not the property of the landlord, but to be furnished for a price by a third party. It is not the.duty of the landlord to keep the pipes ih repair even (McKeon v. Cutler, 156 Mass. 296), much less to keep them filled with water. An agreement on the part of the landlord to pay water or gas-bills may be implied, no doubt, from circumstances, but the fact alone that the house is provided with pipes and fixtures is not sufficient. McCarthy v. Humphrey, 105 Iowa, 535. Nor do we think that the fact that the owner paid the first year’s bill would justify an inference that he had agreed to do so or ought to estop him from insisting upon his right. The statute establishing the city’s water-works provides that the owner as well as the occupant of premises supplied with city water may be held liable to pay for it. Pub. Laws K. I. cap. 610, § 6, March 8, 1866. He paid, as he says, not as acknowledging his ultimate obligation as between himself and the tenant, ‘but expecting to collect the bill with his rent. The tenant was not injured by this payment, and can claim no estoppel by reason of it. (1) Such an implication might arise from a general custom which the law would attach to the contract; but no such custom is proven in this case, and to be binding it would need to be universal and reasonable. Water is supplied to dwelling-houses in the city of Providence upon two plans of payment. In one, as in the case at bar, the water is measured by a meter and is paid for by the cubic foot; in the other it is supplied without measurement, and a fixed sum is charged for each faucet, bath-tub, etc. (.Regulations of the water department in evidence.) In the latter case the landlord *234 knows in advance the amount which will be charged for water and can include that sum when fixing his rent. In such case the inference that he has done so and so assumed the payment of the bills would be much easier than when he puts it in the power of the tenant to draw an unlimited amount for which some one must pay an unknown price. It would be unreasonable to subject the landlord to such an indefinite burden, which his tenant could increase at will, without the clearest proof that he had voluntarily assumed it. Tillinghast & Tillinghast, for plaintiff. W. B. W. Hallett and H. W. Kimball, for defendant. (5) No case is cited by the defendant to support his theory of the law. He urges that the law throws upon the landlord the obligation to pay all State, city, and county taxes and assessments which become chargeable during the term, and that if the tenant is compelled to pay such charges in order to have the use of the premises he may recover or retain such sums from the landlord. Doubtless this is true, but the distinction is well drawn in Badcock v. Hunt, L. R. 22, Q. B. Division 145, between such public charges as are imposed upon one who has no choice in the matter and prices fixed for the use of water which the tenant may take or decline at his option. Water, as supplied here, is a commodity which the tenant requires, but which he cán purchase of others if he chooses to submit to that inconvenience. The price charged for it is not a tax any more than the price charged for gas, electricity, steam, or coal, some of which are as necessary commodities as water. Nor does the fact that the city supplies water and a private corporation supplies gas make one a tax rather than the other. The city has no lien on the premises for the payment of water-bills, and so the charge is not an incumbrance which the tenant is presumed to pay on account of the landlord. • The case of Leighton v. Ricker, 173 Mass. 564, cited by the plaintiff, is exactly in point and coincides with the views we have stated. A new trial must be denied, and the case remanded to the Common Pleas Division, with direction to enter judgment upon the verdict.