of some legal duty arising from the landlord to him. The mere fact that circuity of action will be avoided by permitting the action against the landlord would seem not enough to vest in the third person the right of action.

But we think the true basis for the liability, as respects the servants and others upon the premises at the invitation of the tenant, must be found in an implied legal duty on the part of the landlord to keep and perform his contract for their benefit and protection. They have of course no remedy on the contract, for they are not parties to it and are strangers to its obligations. The sole remedy is an action for the wrong committed by the landlord, by his negligence in failing to perform an act assumed by him, which he was bound under the circumstances to know would protect them from harm if performed, or expose them to injury if not performed. A case like that at bar might well be held to come within the rule applicable to property leased for public purposes: Wharves, concert and public entertainment halls, and the like. In such cases the negligent failure of the landlord to perform his contract with the tenant to keep the premises in repair renders him liable, and the authorities hold to the rule of liability even in the absence of express contract to repair. 92 Am. St., note on page 513; Albert v. State, 66 Md. 325, 7 Atl. 697, 59 Am. Rep. 159; Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295; Joyce v. Martin, 15 R. I. 558, 10 Atl. 620; Oxford v. Leathe, 165 Mass. 254, 43 N. E. 92.

In the case at bar the premises were adapted to and were leased for commercial purposes, namely: The conduct of the tenant's business as a retail dealer in typewriters and typewriter supplies. The character of the business was stated in the lease and necessarily it was within the contemplation of the parties that the tenant would employ clerks and servants, and that the public generally would resort to the premises for the purpose of dealing with the tenant. In such a case persons going upon the premises for the lawful purpose of dealing with the tenant would be entitled to protection from dangers arising from the lack of proper repairs, and it would clearly be the duty of the landlord as well as the tenant to exercise reasonable care to avoid injury to them in that respect. This duty on the part of the

landlord would arise from his express contract with the tenant, for in contemplation of law it was made to ensure the safe condition of the premises for the transaction of the tenant's business therein. An agreement to keep the premises properly heated, and the negligent failure to perform the same, cannot on principle be differentiated from the case of failure to keep in repair. The purpose of the undertaking by the landlord was to maintain the premises in habitable condition, not only for the tenant, but also for his employees. The contract created an implied legal duty on the part of the landlord toward the employees to keep and perform the same, and a negligent violation thereof ought to vest in them the right of action against him, if such neglect be the proximate cause of the injury sustained and the employees be not guilty of contributory negligence, or assume the risks incident to continuing in the employ of the tenant in the unheated premises. The employee cannot of course, in any such case, have any greater right than the contract confers upon the tenant. Note, 92 Am. St. 509, subd. 4.

The case is distinguishable from those wherein it is held that a water company, under contract with a municipality to furnish to its citizens a sufficient supply of water for domestic and fire purposes, is not liable to an individual for a failure to perform the contract, either in tort or for the breach of the contract. The weight of authority upholds that rule, (Howsmon v. Water Works, 119 Mo. 304, 24 S. W. 784, 23 L.R.A. 164, and note 41 Am. St. 654) though the liability of the water company has been affirmed by some courts of high standing, the basis and reasoning of which, namely: An implied legal obligation to third persons, sustains on principle the view we take of the question in this case. Pond v. New Rochelle Water Co. 183 N. Y. 330, 76 N. E. 211, 1 L.R.A. (N.S.) 958, 5 Ann. Cas. 504; Gorrell v. Greenboro Water Supply Co. 124 N. C. 328, 32 S. E. 720, 46 L.R.A. 513; Duncan v. Owensboro Water Co. 12 Ky. L. 35, 12 S. W. 57; Guardian T. & D. Co. v. Fisher, 200 U. S. 57, 67, 26 Sup. Ct. 186, 50 L. ed. 367. As remarked by Mr. Justice Brewer in the last case cited:

"One may acquire by contract an opportunity for acts and conduct in which parties other than those with whom he contracts are inter

ested and for negligence in which he is liable in damages to such other parties."

But we need not pursue the subject further. Whether this theory of the true ground of liability be sound or unsound, our former decisions it would seem, though without any particular discussion of the question, logically place this court in line with those holding the landlord liable to third persons lawfully upon the premises, where he has by the terms of the lease expressly contracted to keep and maintain them in repair. There can be, as already stated, no distinction between a contract to repair, and one to keep the premises properly heated, and our former decisions apply to the facts here presented. Barron v. Liedloff, 95 Minn. 474, 104 N. W. 289; Williams v. Dickson, 122 Minn. 49, 141 N. W. 849; Good v. Von Hemert, 114 Minn. 393, 131 N. W. 466; Nash v. Minneapolis Mill Co. 24 Minn. 501, 31 Am. St. 349. In the Barron case the landlord agreed to keep the premises in repair and for his negligent failure to do so he was held liable to a sublessee of the tenant, and to all persons lawfully upon the premises at the invitation of the tenant. It was there urged, as it is in the case at bar, that there was no contractual or other relation between the landlord and the injured party and, therefore, that there could be no liability. The contention was not sustained. In the Dickson case the liability was held to extend to a servant of the tenant, and in the Good case to a member of his family. We are not disposed to question the soundness of these decisions and follow and apply them to the case at bar. Authorities supporting the decision in the Barron case will be found in a note to Dustin v. Curtis, 11 L.R.A. (N.S.) 504, 507.

This disposes of the case. The question whether the damages claimed by plaintiff in consequence of the tuberculosis alleged to have resulted from the cold contracted by reason of the unheated premises are too remote, what other damages she may be entitled to, if any, or whether she assumed the risk of continuing in the employ of the tenant with knowledge of the condition of the premises, we do not consider. Such questions are not presented. We dispose of the case upon the single question whether, under the facts pleaded, lia

bility on the part of the defendant is shown. All other questions must be determined when issue is joined and the cause tried. Order reversed.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY v. VILLAGE OF LE ROY.1

December 19, 1913.

Nos. 18,365-(216).

Village-act applicable.

1. Held, following State v. Cornwall, 35 Minn. 176, that by chapter 14, Sp. Laws 1876, the village of Le Roy became incorporated as a village under and subject to the provisions of the general village act of 1875, the same being chapter 139, general laws of that year, and therefore comes within the scope of section 2, chapter 145, Laws 1885.

Same.

2. Chapter 145, Laws 1885, relating to the incorporation of villages, and providing that all villages theretofore incorporated under the general statutes of the state should be governed by the provisions thereof, though repealed by section 5536, R. L. 1905, nevertheless by force of section 698, R. L., remains in force as to existing villages, which were not reincorporated as provided for by section 699, R. L. 1905.

Necessity of new street.

3. The evidence supports the verdict to the effect that a proposed new street over the railroad right of way is a public necessity.

Cost of new street.

4. The entire cost and expense of extending the new street across the right of way, including necessary planking over the railroad tracks, was properly imposed upon the railroad company; following State v. St. Paul, M. & M. Ry. Co. 98 Minn. 380, and Chicago, M. & St. P. Ry. Co. v. City of Minneapolis, 115 Minn. 460, and overruling upon this point State v. District Court for Hennepin County, 42 Minn. 247.

1 Reported in 144 N. W. 464.

From the award of damages in the condemnation of land belonging to the Chicago, Milwaukee & St. Paul Railway Co. in certain proceedings to extend a street in the village of Le Roy across the right. of way of the company, that company appealed to the district court for Mower county. The appeal was heard in the district court before Kingsley, J., who denied plaintiff's motion for a dismissal of the proceeding for want of jurisdiction of the court and its motion for a directed verdict in its favor, and a jury which returned a verdict that it was a public necessity to take for street purposes the land described in the proceedings and assessed the damages to be paid by the village of Le Roy at $550. From an order denying plaintiff's motion for judgment in its favor notwithstanding the verdict or for a new trial, it appealed. Affirmed.

Catherwood & Nicholsen, for appellant.

Sasse & French, for respondent.

BROWN, C. J.

The village council of the village of Le Roy, in Mower county, duly adopted a resolution laying out and establishing a street over and across the right of way of appellant, the proceeding being conducted under the provisions of chapter 145, p. 148, Laws 1885. The questions in issue were heard before a justice of the peace and a jury where the right of the village to open the street was affirmed. The railroad company appealed to the district court where a verdict was returned again sustaining the proceeding. The company then moved in the alternative for judgment notwithstanding the verdict or for a new trial, and appealed from an order denying the same.

It is contended by appellant: (1) That the village of Le Roy is without authority to lay out or establish public streets or highways, and therefore that the proceedings are a nullity and should be dismissed; (2) if it have such authority, that there exists no public necessity for the street in question, and that the verdict of the jury affirming such necessity is without support in the evidence; and (3) that the trial court erred in excluding certain evidence of damages. sustained by the appellant, resulting from opening the street across its tracks.