By the Court
Nelson, J.The first question in this case is whether the defendant could avoid the lease by refusing to fulfil the convenants ; or, in other words, whether the performance of the convenants were at his option. The intention of the parties, to be gathered from a view of the whole agreement, the criterion by which to give a construction to any part, giving effect, if consistent and reasonable, to the whole ; 1 Selw. 339 ; and if there be any ambiguity, such construction must prevail as is most strong against the covenantor, for he might have expressed himself more clearly. The principle has been applied to the construction of leases. Webb v. Dixon, 9 East, 15.
Now yielding to the interpretation urged by the defendant^ there would be no mutuality in the agreement, or consideration to the plaintiff, for the benefit would be all on one side, and the obligation on the other; and though this might not make a covenant void ab initio, Shubricks v. Salmon, 3 Burr. 1637, Lowe v. Peers, 4 id. 2225, it will at least require strong and express provisions to induce the court to come to that conclusion. I have no doubt that it was the intention of both parties, as well from the subject matter and nature of the agreement as from a reasonable sense of the words themselves, that each was to be bound. The agreement was inartificially drawn; but the true reading is, that Folts covenants to lease to Huntley the use of the waters in Limestone creek, with so much of the bank, &c. for the time and upon the condition that Huntley pays the rent, keeps in repair bridges, &c.; and then follows an express covenant on the part of Huntley, his heirs, &c. to Folts, his heirs, &c. to pay the rent, build and keep in repair the bridges, &c.
The true construction of this agreement is given in the case of Canfield v. Westcott, 5 Cowen. 270, and the cases in the note (a), to wit, that on a failure to pay rent, or to build and keep in repair bridges, &c. on the part of the defendant, the *215plaintiff might consider the lease forfeited, and re-enter by action of ejectment, or waive the forfeiture and sue, as he has done here, upon the express covenant.
There can be no doubt the lease is a perpetual one. It is by Folts, his heirs, &c. to Huntley, his heirs and assigns, for such time as he shall pay the rent and fulfil other stipulations. So long, then, as Huntley, his heirs or assigns, pay the rent and comply with these stipulations, they are entitled to all the rights and privileges under it; and we have shewn that Folts can enforce the payment of rent, &c. upon the express covenant of Huntley, and that it is not at the election of the latter to put an end to it. It therefore necessarily follows that the lease continues until put an end to by the mutual agreement of the parties to it, or till the plaintiff may elect to claim a forfeiture in the default of the lessee to pay, &c.
In the next place, it is contended that the diversion of the Limestone creek by the canal commissioners, to be used as a feeder to the Erie canal, being under the authority of law, is to be considered in the nature of an eviction by paramount title, and therefore a bar to the suit for rent, or for the breach of any other covenant; and so the court below decided. The term demised in the lease undoubtedly implied a covenant of quiet enjoyment, at least during the life of the lessor; Woodfall, 243; Shep. T. 160; and eviction under a superior and lawful title of the whole or any part of the demised premises, would constitute a valid defence. 1 Selw. 390. Cro. Eliz. 214. Johns. Dig. 440, tit. Covenant, (c). Pendleton v. Dyett, 4 Cowen, 581. It is obvious, however, for many reasons, that this act of the canal commissioners, though lawful, is not an eviction within the meaning or spirit of the term, and can afford no defence to this suit. It was not inconsistent with, but entirely independent of a perfect right and title in the plaintiff to lease the demised premises, and rested upon great public considerations, paramount to all and every title to the property. Nor is the reason upon which this defence is founded applicable, to wit, that rents shall not be paid after the premises demised are gone. It is a fundamental principal that private property cannot be appropriated to public purposes without a just compensation ; and accordingly the statute em*216powering the commissioners or their agents “ to enter upon an¿ use a]j an(j singular any lands, waters and streams necessaiT for the prosecution of the improvement,” &c. provided compensation for any injury produced to any individual by the exercise of this power. If the defendant has not already obtained his remuneration, (which he probably has,) the law affords him a perfect remedy, to the extent of the injury which his property has sustained by the diversion of the stream ; he, and not the plaintiff, can pursue it. On another ground, it is not in the power even of the legislature to impeach or disannul the covenants in this case. Sturges v. Crowninshield, 4 Wheaton, 122, 192,209. Mather v. Bush, 16 Johns. R. 283.
Judgment reversed, and venire de novo awarded.