EARL, J., (after stating the facts as above.) in repair, and omits to repair, and thus they The will of John Gardner came under consid- become a nuisance; if he demises premises eration in Greason v. Keteltas, 17 N. Y.491, to be used as a nuisance, or for a business, or and it was there held that the trustee under in a way, so that they will necessarily bethat will took an estate in fee, determinable come a nuisance. In all such cases I believe when the purpose of the trust should cease, there is now no dispute that the owner would and that such a trustee had power at law to be liable. But an owner who has demised lease for a term which might extend beyond premises for a term during which they bethe period of his trust-estate. The lease ex- come ruinous, and thus a nuisance, is not reecuted by the trustee to Phelon for a term of sponsible for the nuisance unless he has covfive years from May 1, 1880, was therefore enanted to repair. It has even been held in valid for the whole term, and had nearly four some cases that an owner may demise premyears to run at the time of Mrs. De Dion's ises so defective and out of repair as to be a death, and more than two years at the time nuisance, and, if he binds his tenant to make of the accident. Hence any reasoning based the repairs, he is not responsible for the nuiupon the postulate that the defendants could sance during the term. Pretty v. Bickmore, have terminated the lease before the end of supra; Gwinnell v. Eamer, L. R. 10 C. P. the term will lead to inevitable error. There 658; Leonard v. Storer, 115 Mass. 86. But was no proof, even if that were in any way these cases are not in entire harmony with important, that the pier was out of repair the decisions in our own state, and probably in 1817, when Gardner died. It became out would not now be generally received as of repair and defective at some time during authority in this country or in England. the existence of the trust-estate, and in that A grantee or devisee of premises upon condition it was demised by the trustee. By which there is a nuisance at the time the title demising the pier while it was in such a con- passes is not responsible for the nuisance undition as to be a nuisance, the trustee was til he has had notice thereof, and in some guilty of a misfeasance, and during the ex- cases until he has been requested to abate the istence of his estate, notwithstanding the same. The authorities to this effect are so lease, he would have been responsible for any numerous and uniform that the rule which damage caused by the nuisance. Even if they establish ought no longer to be open to he had been the trustee of Mrs. De Dion's question. One of the earliest, if not the children, and they had been the beneficiaries earliest, case in which this rule was anunder the trust, they would not have been nounced, is Penruddock's Case, 5 Coke, 100, responsible for any nuisance created or per- where it was resolved that an action lies mitted by him; and so it was held in People against one who erects a nuisance without v. Townsend, 3 Hill, 479. But he was not any request made to abate it, but not against trustee for them. They derived no title or the feoffee, unless he does not remove the benefit from him, and had no connection what- nuisance after request; and in Pierson v. ever with him. They took their title under Glean, 14 N.J. Law, 37, Chief Justice HORNthe will of John Gardner, and were in no way BLOWER said: “The law as settled in Penresponsible for what the trustee did or omitted ruddock's Case has never, I believe, been serito do upon the trust-estate.

ously questioned since.” In Plumer v. Harper, We have, tlien, this question for our de- 3 N. H. 88, RICHARDSON, C. J., said: “When termination: Are the children of Mrs. De he who erects the nuisance conveys the land, Dion, who became full owners of this pier at he does not transfer the liability to his granthe death of their mother, subject to a valid, tee. For it is agreed, in all the books, that outstanding lease, responsible for a nuisance the grantee is not liable, until, upon request, created thereon during the existence of the he refuses to remove the nuisance.” In precedent estate, without any notice thereof? Woodman v. Tufts, 9 N. H. 88, it was held I have carefully examined the English and that where a dam was erected and land flowed American authorities, and confidently assert by the grantor of an individual, the grantee that there is not an authority to be found in will not be liable for damages in continuing the books imposing such responsibility. It the dam and flowing the land as before, exis not the general rule that an owner of land cept on notice of damage and request to reis, as such, responsible for any nuisance move the nuisance or withdraw the water. thereon. It is the occupier, and he alone, to In Eastman v. Manufacturing Co., 44 N. H. whom such responsibility generally and 144, it was held that no notice or request to prima facie attaches. Pretty v. Bickmore, abate the nuisance is necessary before bringL. R. 8 C. P. 401; Kirby v. Association, 14 ing suit against the original wrong-doer in Gray, 249; City of Lowell v. Spaulding, 4 such cases for the damages done; but that Cush. 277; Inhabitants v. Holbrook, 11 the grantee of the nuisance is not liable to Cush. 299. The owner is responsible if he the party injured until, upon request made, creates a nuisance and maintains it; if he be refuses to remove the nuisance. SARcreates a nuisance, and then demises the land GENT, J., writing the opinion, said: “The with the nuisance thereon, although he is doctrine of the cases in this state and elseout of occupation; if the nuisance was erected where is that he whu erects a nuisance does on the land by a prior owner, or by a stranger, not, by conveying the land to another, transand he knowingly maintains it; if he has de- fer the liability for the erection to the granmised premises, and covenanted to keep them tee; and the grantee is not liabie until, upon

request, he refuses to remove the nuisance, sance on his own land, though erected by anfor the reason that he cannot know, until other, if he refuses to remove the same after such request, but the dam was rightfully notice; and in 2 Chit. Pl. 333, note c, the erected; and there can be no injury in hold-author adds that if the action is not brought ing to this doctrine, as the original wrong- against the original erector of the nuisance, doer continues liable, notwithstanding his but against his feoffee, lessee, etc., it is necalienation.” To the same effect is Carleton essary to allege a special request to the dev. Redington, 21 N. H. 291. In Johnson v. fendant to remove it. In Cooley, Torts, 611, Lewis, 13 Conn. 303, where it appeared, in an the learned author says: “A party who comes action for the obstruction of a water-course into possession of lands, as grantee or lessee, by raising a dam, that the dam creating the with a nuisance already existing upon it, is obstruction was erected by the defendant's not in general liable for the continuance of grantor, it was held that the plaintiff could the nuisance until his attention has been not recover without proving a special request called to it, and he has been requested to abate to the defendant to remove the obstruction. it.” In 1 Hil. Torts, (3d Ed.) 574, it is said SHERMAN, J., writing the opinion, said: “The “that a person who continues a nuisance law is well settled that a purchaser of the erected by another is liable therefor at the property on which a nuisance is erected is not suit of any party damaged thereby, if he had liable for its continuance, unless he has been knowledge of its hurtful tendency, or, more requested to remove it. This rule is very especially, if notified or requested to remove reasonable. The purchaser of property might it.” In Moak, Underh. Torts, 253,255, be subjected to great injustice if he were the learned editor, with many citations of made responsible for consequences of which authorities to sustain him, says: “Where he was ignorant, and for damages which he premises are out of repair at the time they never intended to occasion. They are often are leased in particulars which the landlord such as cannot easily be known, except to the is bound, as against third persons, not to alparty injured;" and so, also, it was held in low, the landlord is liable for any injuries Noyes v. Stillman, 24 Conn. 15. In Pills- sustained by a third person for such want of bury v. Moore, 44 Me. 154, it was held that a repair. But not even in such case if the tenpurchaser of property on which a nuisance is ant's use is what produces the injury.” “A erected is not liable for its continuance un- landlord who negligently or improperly conless he has been requested to remove it. In structs his premises, (as a drain,) or, when Pierson v. Glean, supra, it was held that an they become defective, after notice suffers action for continuing a nuisance cannot be them to remain so, is liable to his tenant or maintained against him who did not erect it, a stranger, who, being himself free from fault, without a previous request to him to remove is injured thereby." "Where a lessee or granor abate it. In Beavers v. Trimmer, 25 N. tee continues a nuisance of a nature not esJ. Law, 97, it was held that when the action sentially unlawful, he is liable to an action is not brought against the original erector of for it only after notice to reform or abate it.” a nuisance, but against a subsequent owner In Add. Torts, (Wood's Amer. Ed.) $ 222, it or tenant, a special request to remove it must is said that an action will lie against the landbe alleged. In McDonough v. Gilman, 3 Al. lord for a permanent nuisance, although the len, 264, it was held that a tenant for years nuisance was created before the reversion is not liable for keeping a nuisance as it used came to him, i. e., if he knew of it and might to be before the commencement of his ten- have determined the tenancy before the inancy, if he had not been requested to remove jury happened, as in the case of a tenancy it, or done any new act which of itself was a from year to year. “If an action is brought nuisance. And the same rule has repeatedly against the originator of a nuisance, it is not been laid down in this state. In Hubbard v. necessary to demand the abatement or disconRussell, 24 Barb. 404, an action against the tinuance of the nuisance before commencing continuator of a private nuisance, originally the action; but if the action is brought against erected by another, to recover damages for the inere continuer of a pre-existing nuisance, the injury sustained thereby, it was held that a request to remove the nuisance must be the plaintiff must prove a notice to the de- made before the action is commenced.” Sec. fendant of its existence, and a request to re- tion 280. “The occupier of lands is in genmove it.

In Miller v. Church, 2 Thomp. & C. eral responsible for the continuance of a nui259, in an action to recover damages for the sance upon them, and so is the landlord, if overflow of a mill-pond, it was shown that the the nuisance existed at the time he demised defendant, the owner of the pond, was not in them or re-let them or continued the tenancy possession, having leased the same to a third after he had the power of determining it." party, and it was held that the owner of the Section 283. premises overflowed could not recover for According to these authorities, the simple such overflow without showing that the de- fact that the three children of Mrs. De Dion fendant had notice or knowledge of the ex- became owners of the pier upon the death of istence of the same before the action was their mother did not make them responsible brought. And the same rules, without any for this nuisance, then existing. Suppose variation, are laid down by all the text-writ- this accident had happened an hour, or a day, ers. In Chit. Pl. 71, it is said that every oc- or one week after the death of their mother, cupier is liable for the continuance of a nui. I would they have been responsible, even if

[ocr errors]

the pier had coñe to them not subject to any | under-lease? And it was held that I would, lease? To cast such a responsibility upon a “for he transferred it with the griginal grantee or devisee might imperil his whole wrong, and his demise affirms this continfortune. Before it can be cast in such a case, uance of it.” In Todd v. Flight, 9 C. B. (N. he must have notice of the nuisance and a S.) 377, it was held that an action lies against reasonable time to abate it. There must be the owner of premises who lets them to a some fault, some delictum on his part, and tenant in a ruinous and dangerous condition, his liability can have no other basis. The and who causes or permits them to remain notice required to put him in fault may be so until, by reason of the want of reparation, proved like any other fact. The mere fact they fall upon and injure the house of an adthat the owner personally occupies the prem- joining owner. In Nelson v. Brewery Co., ises upon which the nuisance is alleged to L. R. 2 C. P. Div. 311, it was held that a exist is not always sufficient to charge him landlord is liable for an injury to a stranger with notice of its existence. It may, like a by the defective repair of demised premises dam, or a building obstructing ancient lights, only when he has contracted with the tenant be of such a nature that he may rightfully to repair, or where he has been guilty of missuppose that he has the right to maintain it; feasance, as, for instance, in letting the or it may be of such a character that he may premises in a ruinous condition; and that in not know of its harmful tendency. In such all other cases he is exempt from responsicases he must have actual notice that the bility for accidents happening to strangers structure is a nuisance, and there may be during the tenancy. LOPES, J., writing the cases in which, besides notice, there must be opinion, said: “We think there are only two a request to abate.' But where the structure ways in which landlords or owners can be or the condition of premises is such as to be made liable in the case of an injury to a absolutely a nuisance, plainly visible, so that stranger by the defective repair of premises an occupier may see and know the nuisance, let to a tenant, the occupier, and the occupier and its dangerous character or hurtful tend-alone, being prima facie

. liable: First, in ency, then an owner in the occupation of the case of a contract by the landlord to do the premises may, from his mere occupancy, repairs where the tenant can sue him for not be charged with notice thereof. In this case, repairing; secondly, in the case of a misif these defendants had gone into possession feasance by the landlord, as, for instance, of this pier personally, or by their agents, its where he lets premises in a ruinous condicharacter was such that they must have tion. In either of these cases we think an known that it was dangerous and a nuisance, action would lie against the owner.” In and no direct proof of notice would have Woodf. Landl. & Ten. (13th Ed.) 735, it is been required to charge them; it could have said: “As regards the liability of landlords been inferred. But when there is no proof to third persons, it may be taken as a general that the owners of premises, which came to rule that the tenant and not the landlord is them with a nuisance existing thereon with liable to third persons for any accident or inout their fault, were ever in possession of the jury occasioned to them by the premises bepremises, or ever even saw them, there is no ing in a dangerous condition; and the only possible ground for charging them with no- exceptions to the rule appear to arise when tice or imputing to them legal fault. But the landlord has either (1) contracted with the position of these defendants is stronger the tenant to repair, or (2) where he has let than the one we have just been dealing with. the premises in a ruinous condition, or (3) This pier came to them, not only with this where he has expressly licensed the tenant to nuisance existing thereon, but subject to an do acts amounting to a nuisance.” In Knauss outstanding lease for some years which they v. Brua, 107 Pa. St. 85, repeated in Fow v. had no power to terminate. The lessee who Roberts, 108 Pa. St. 489, it is said: “We do not occupied and used the pier was under obliga- doubt but that in the absence of an agreetion to the public to see that it did not be- ment to repair the landlord is not liable to a come a nuisance, and it was his duty to re-third party for a nuisance resulting from dispond for any damage sustained by any per- lapidation in the leasehold premises whilst in son from the nuisance. The owners of the the possession of a tenant." In City of Lowell reversion had the right, in the absence of no- v. Spaulding, 4 Cush. 277, SHAW, C. J., said: tice, to suppose that he would discharge such“By the common law, the occupier, and not duty and protect the public, and they were the landlord, is bound, as between himself under no obligations to see, by watchful and the public, so far to keep buildings in revigilance, that he performed such duty. And pair that they may be safe for the public; so it has been held in all the analogous cases and such occupier is prima facie liable to that the landlord, in the absence of notice, is third persons for damages arising from any liable only in case he demised the premises defect. If, indeed, there be an express agreewith the nuisance thereon. In Rosewell v. ment between landlord and tenant that the Prior, 2 Salk. 460, a tenant for years erected former shall keep the premises in repair so a nuisance, and afterwards made an under that in case of a recovery against the tenant lease, and the question was whether, after a he would have his remedy over, then to avoid recovery against the first tenant for years for circuity of action the party injured by the dethe erection, an action would lie against him fect and want of repair may have his action for the continuance after he had made an in the first instance against the landlord,

But such express agreement must be dis- sort, and knowing the defect, leased the place tinctly proved.” And to the same effect is and wharf to B., who learned of the wharf Larue v. Hotel Co., 116 Mass. 67.

defect after accepting the lease, but continIn Cunningham v. Bank, 138 Mass. 480, ued to use the wharf and place for public reMORTON, C. J., said: “It is often said in sort; and in an action for damages to C., the cases that the occupier and not the own- who was injured by the wharf defect, it was er of a building is liable to third persons for held that the action was maintainable against damages arising from any defect. But by both A. and B. jointly,-against A. solely on 'occupier' is meant, not merely the person the ground that he knew the wharf was dewho physically occupies the building, but fective when he let it. In Owings v. Jones, the person who occupies it as a tenant, hav- 9 Md. 108, the plaintiff sued for damages for ing the control of it, and being, as to the injuries by falling into a vault appurtenant public, under the duty of keeping it in re- to the property of the defendant, and built pair.” In Dalay v. Savage, 145 Mass. 38, under the sidewalk of a public street. It 12 N. E. Rep. 841, land abutting on a public was shown in defense that the property had street in a city was sold under a power con- been leased by the defendant for the term of tained in a mortgage, and the owner of the seven years, for an annual rent, and the equity of redemption released any title he court held that the defendant was not remight have to the purchaser, and was al- | lieved from liability if the vault was so conlowed by the purchaser to remain in posses-structed as to be unsafe for passers-by when sion under an agreement that he should pay the premises were let, or as to be liable to rent at a certain rate monthly. At the time become unsafe in the necessary opening for of the sale there was an open and visible de- the purpose of cleaning it; and it laid down fect in the cover of a coal-hole in the side the following rules: (1) When property is walk in front of a house on the land, which dernised, and at the time of the demise is not hole led to the cellar of the house. In con- a nuisance, and becomes so only by the act sequence of this defect during the tenancy a of the tenant while in his possession, and inperson walking on the sidewalk fell into the jury happens during such possession, the hole, and it was held that he could maintain owner is not liable. (2) But where the ownan action against the purchaser of the land er leases premises which are a nuisance, or for the injury thereby sustained. FIELD, J., must, in the nature of things, become so by writing the opinion, said: “It seems to be their use, and receives rent, then, whether settled that if the landlord lets premises abut- in or out of possession, he is liable for injuting upon a way which are, from their con- ries received from such nuisance. In Albert dition or construction, dangerous to persons v. State, 66 Md. 325, 7 Atl. Rep. 697, the aclawfully using the way, he is liable to such tion was brought by a minor for damages persons for injuries suffered therefrom, al- sustained by him by the death of his parents, though the premises are occupied by a ten- who were drowned by reason of the defect

“The reason of the rule that if a land.iveness of a wharf in the occupation of the lord lets premises in a condition which is defendant's tenant. The instruction given dangerous to the public, or with a nuisance on the trial was that "if the jury found that upon them, he is liable to strangers for in- the defendant was the owner of the wharf, jury suffered therefrom, is that by the letting and that he rented it out to a tenant, and he has authorized the continuance of the that at the time of the renting the wharf nuisance;” and the learned judge further was unsafe, and the defendant knew, or by said: “If the defendant Savage had bought the exercise of reasonable diligence could the premises subject to a lease to Breslin, have known, of its unsafe condition, and the [the tenant,] who had continued in occupation accident happened in consequence of such under it, a different case would have been condition, then the plaintiff was entitled to presented;" and he held the defendant respon- recover;” and this was upon appeal held to sible for the nuisance solely on the ground be a correct exposition of the law. In Clanthat he had demised the premises with the cy v. Byrne, 56 N. Y. 129, the true rule was nuisance thereon. In Nugent v. Railroad fully apprehended by FOLGER, J., who wrote Co., 80 Me. 62, 77, 12 Atl. Rep. 797, VIR- the opinion. That was a case where plainGIN, J., writing the opinion, said: “It is tiff's horse fell through a defective pier, and settled law that when the owner lets premis- the action was against a lessee who had coves which are in a condition which is unsafe enanted with his landlord to make all ordifor the avowed purpose for which they are nary repairs. The lessee had sublet the pier, let, or with a nuisance upon them when let, and was not in the occupancy thereof, and it and receives rent therefor, he is liable, was held that if premises are in good repair whether in or out of possession, for the in- when demised, but afterwards become ruinjuries which result from their state of inse- ous and dangerous, the landlord is not recurity to persons lawfully upon them; for, sponsible therefor either to the occupant or by the letting for profit, he authorizes a con- to the public during the continuance of the tinuance of the condition they were in when lease, unless he has expressly agreed to rehe let them, and is therefore guilty of a non- pair, or has renewed the lease after need of feasance.” In Joyce v. Martin, 15 R. I. 558, repair has shown itself; and that this rule 10 Atl. Rep. 620, A., owning a defective applies to a lessee out of possession who has wharf used in connection with a public re- 'sublet to another who is in possession. The


[ocr errors]



learned judge said: "Generally speaking, created no nuisance, and is guilty of no will. the person responsible for a nuisance is he ful wrong or fraud or culpable negligence, who is in occupation of the premises on which no case can be found imposing any liability it exists. *

As between him who is upon him for any injury suffered by any perthe landlord and owner, and him who is the son occupying or going upon the premises lessee and occupant of the premises, there is, during the term of the demise; and there is in general, no obligation upon the former to no distinction stated in any authority bekeep them in repair, when he has made no tween cases of a demise of dwelling-houses express contract to that effect.

* and of buildings to be used for public purNumerous authorities are cited. We have poses. The responsibility of the landlord is examined all of them. It wili be found that the same in all cases. If guilty of negligence in them the liability of the defendant is placed or other delictum which leads directly to the upon one of these grounds, viz.: That he accident and wrong complained of, he is liaowned or had right in the premises, and ble; if not so guilty, no liability attaches to leased them with the nuisance upon them; him." that he was in the possession of the premises, Wolf v. Kilpatrick, 101 N. Y. 146, 4 N. and used them in their defective condition; E. Rep. 188, is an instructive case. There that he was under a contract, enforceable by the defendants were owners of certain premplaintiff, to keep the premises in repair, and ises in the city of New York, which they failed so to do; that he, in the first in- leased to M., who, under and in accordance stance, created the nuisance and put it in the with a permit from the city, built vaults unpower of others to continue it; or that, being der the sidewalk, in front thereof, with a a municipal corporation, there was a duty coal-hole which was properly constructed, upon it to repair. If there are authorities and in the usual and permitted manner. which, in the remarks of the court, reach Through the wrongful act of a stranger, who further than this, * * they will be broke the stone supporting the iron cover of found to go beyond the neeils of the case then the coal-hole, the cover turned when the in hand." In Jaffe v. Harteau, 56 N. Y. plaintiff stepped upon it, and he fell and was 398, it was held that a lessor of buildings, in injured. In an action to recover damages it the absence of fraud or any agreement to did not appear that the defendants had any that effect, is not liable to the lessee or oth- knowledge or notice of the defect, and it was ers lawfully upon the premises for their con-held that they were not liable; that they dition, or that they are tenantable, and may would not have been liable had they thembe safely and conveniently used for the pur- selves constructed the vaults lawfully and poses for which they are apparently intended. with due prudence and care, and thereafter In Swords v. Edgar, 59 N. Y. 28, the plain- transferred possession of the premises to a tiff's intestate was so injured by the falling third person without covenant on their part of a defective pier that he died, and the ac- to repair; that if the coal-hole became a nuition was brought to recover damages caused sance after the stone was broken, only the by his death. The defendant, the landlord, person who created the nuisance, or he who had rented the pier to a tenant, who was in suffered it to continue, was responsible; that possession thereof at the time of the accident; a party out of possession and control, and and the defendant was held liable solely on who had no knowledge, actual or constructthe ground that he had demised the pier ive, of the defect could not be said to have while the same was in a defective condition. suffered it to continue; that a landlord out In Wenzlick v. McCotter, 87 N. Y. 122, it of possession is not responsible for an afterwas held that, where a person acquires title occurring nuisance unless in some manner to land upon which is a nuisance, the mere he is in fault for its construction or continuomission to abate or remove it does not ren- ance, and that the bare ownership will not der him liable; and that there must be some- produce this result. FINCH, J., said: “How thing amounting to actual use, or a request can it be said that they [the defendants] sufto abate the nuisance must be shown. In fered it [the nuisance] to continue, and so Edwards v. Railroad Co., 98 N. Y. 247, it is failed in their duty if they had no knowledge, said: “If a landlord lets premises and agrees actual or constructive, of the defect, and to keep thein in repair, and he fails to do so, were out of possession and control? in consequence of which any one lawfully It is quite certain then that the plaintiff in upon the premises suffers injury, he is re- this case was bound to establish some fault sponsible for his own negligence to the party of omission or commission on the part of the injured. If he demises premises knowing landlord leading to the injury, and barely that they are dangerous and unfit for the use showing him to be owner is not enough. for which they are hired, and fails to disclose There was no fault of commission. That is their condition, he is guilty of negligence conceded. There could be no fault of omiswhich will, in many cases, impose responsi- sion unless the landlord was bound to repair bility upon him. If he creates a nuisance up- the defect, had actual or constructive notice on his premises, and then demises them, le of its existence, or was bound at his peril to remains liable for the consequences of the discover and remedy it.”

In Walsh v. Mead, nuisance as the creator thereof, and his ten- 8 Hun, 387, DANIELS, J., said: “The erecant is also liable for the continuance of the tion and maintenance of a nuisance is a same nuisance. But where the landlord has wrong, and, by leasing the building affected


« ForrigeFortsett »