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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 condition it was demised by the trustee. By demising the pier while it was in such a condition as to be a nuisance, the trustee was guilty of a misfeasance, and during the existence of his estate, notwithstanding the lease, he would have been responsible for any damage caused by the nuisance. Even if he had been the trustee of Mrs. De Dion's children, and they had been the beneficiaries under the trust, they would not have been responsible for any nuisance created or permitted by him; and so it was held in People v. Townsend, 3 Hill, 479. But he was not trustee for them. They derived no title or benefit from him, and had no connection whatever with him. They took their title under the will of John Gardner, and were in no way responsible for what the trustee did or omitted to do upon the trust-estate.

We have, then, this question for our determination: Are the children of Mrs. De Dion, who became full owners of this pier at the death of their mother, subject to a valid, outstanding lease, responsible for a nuisance created thereon during the existence of the precedent estate, without any notice thereof? I have carefully examined the English and American authorities, and confidently assert that there is not an authority to be found in the books imposing such responsibility. It is not the general rule that an owner of land is, as such, responsible for any nuisance thereon. It is the occupier, and he alone, to whom such responsibility generally and prima facie attaches. Pretty v. Bickmore, L. R. 8 C. P. 401; Kirby v. Association, 14 Gray, 249; City of Lowell v. Spaulding, 4 Cush. 277; Inhabitants v. Holbrook, 11 Cush. 299. The owner is responsible if he creates a nuisance and maintains it; if he creates a nuisance, and then demises the land with the nuisance thereon, although he is out of occupation; if the nuisance was erected on the land by a prior owner, or by a stranger, and he knowingly maintains it; if he has demised premises, and covenanted to keep them

A grantee or devisee of premises upon which there is a nuisance at the time the title passes is not responsible for the nuisance until he has had notice thereof, and in some cases until he has been requested to abate the same. The authorities to this effect are so numerous and uniform that the rule which they establish ought no longer to be open to question. One of the earliest, if not the earliest, case in which this rule was announced, is Penruddock's Case, 5 Coke, 100, where it was resolved that an action lies against one who erects a nuisance without any request made to abate it, but not against the feoffee, unless he does not remove the nuisance after request; and in Pierson v. Glean, 14 N. J. Law, 37, Chief Justice HORNBLOWER said: "The law as settled in Penruddock's Case has never, I believe, been seriously questioned since." In Plumer v. Harper, 3 N. H. 88, RICHARDSON, C. J., said: "When he who erects the nuisance conveys the land, he does not transfer the liability to his grantee. For it is agreed, in all the books, that the grantee is not liable, until, upon request, he refuses to remove the nuisance. In Woodman v. Tufts, 9 N. H. 88, it was held that where a dam was erected and land flowed by the grantor of an individual, the grantee will not be liable for damages in continuing the dam and flowing the land as before, except on notice of damage and request to remove the nuisance or withdraw the water. In Eastman v. Manufacturing Co., 44 N. H. 144, it was held that no notice or request to abate the nuisance is necessary before bringing suit against the original wrong-doer in such cases for the damages done; but that the grantee of the nuisance is not liable to the party injured until, upon request made, he refuses to remove the nuisance. GENT, J., writing the opinion, said: "The doctrine of the cases in this state and elsewhere is that he who erects a nuisance does not, by conveying the land to another, transfer the liability for the erection to the grantee; and the grantee is not liable until, upon

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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 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 mere 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." Secfendant of its existence, and a request to re-tion 280. "The occupier of lands is in gen

move it.

In Miller v. Church, 2 Thomp. & C. 259, in an action to recover damages for the overflow of a mill-pond, it was shown that the defendant, the owner of the pond, was not in possession, having leased the same to a third party, and it was held that the owner of the premises overflowed could not recover for such overflow without showing that the defendant had notice or knowledge of the existence of the same before the action was brought. And the same rules, without any variation, are laid down by all the text-writ

In Chit. Pl. 71, it is said that every occupier is liable for the continuance of a nui

eral responsible for the continuance of a nuisance upon them, and so is the landlord, if the nuisance existed at the time he demised them or re-let them or continued the tenancy after he had the power of determining it." Section 283.

According to these authorities, the simple fact that the three children of Mrs. De Dion became owners of the pier upon the death of their mother did not make them responsible for this nuisance, then existing. Suppose this accident had happened an hour, or a day, or one week after the death of their mother, would they have been responsible, even if

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the pier had come to them not subject to any | under-lease? And it was held tha would, lease? To cast such a responsibility upon a "for he transferred it with the original grantee or devisee might imperil his whole wrong, and his demise affirms the continfortune. Before it can be cast in such a case, he must have notice of the nuisance and a reasonable time to abate it. There must be some fault, some delictum on his part, and his liability can have no other basis. The notice required to put him in fault may be proved like any other fact. The mere fact that the owner personally occupies the premises upon which the nuisance is alleged to exist is not always sufficient to charge him with notice of its existence. It may, like a dam, or a building obstructing ancient lights, be of such a nature that he may rightfully suppose that he has the right to maintain it; or it may be of such a character that he may not know of its harmful tendency. In such cases he must have actual notice that the structure is a nuisance, and there may be cases in which, besides notice, there must be a request to abate. But where the structure or the condition of premises is such as to be absolutely a nuisance, plainly visible, so that an occupier may see and know the nuisance, and its dangerous character or hurtful tendency, then an owner in the occupation of the premises may, from his mere occupancy, be charged with notice thereof. In this case, if these defendants had gone into possession of this pier personally, or by their agents, its character was such that they must have known that it was dangerous and a nuisance, and no direct proof of notice would have been required to charge them; it could have been inferred. But when there is no proof that the owners of premises, which came to them with a nuisance existing thereon without their fault, were ever in possession of the premises, or ever even saw them, there is no possible ground for charging them with notice or imputing to them legal fault. But the position of these defendants is stronger than the one we have just been dealing with. This pier came to them, not only with this nuisance existing thereon, but subject to an outstanding lease for some years which they had no power to terminate. The lessee who occupied and used the pier was under obligation to the public to see that it did not become a nuisance, and it was his duty to respond for any damage sustained by any person from the nuisance. The owners of the reversion had the right, in the absence of notice, to suppose that he would discharge such duty and protect the public, and they were under no obligations to see, by watchful vigilance, that he performed such duty. And so it has been held in all the analogous cases that the landlord, in the absence of notice, is liable only in case he demised the premises with the nuisance thereon. In Rosewell v. Prior, 2 Salk. 460, a tenant for years erected a nuisance, and afterwards made an underlease, and the question was whether, after a recovery against the first tenant for years for the erection, an action would lie against him for the continuance after he had made an

uance of it." In Todd v. Flight, 9 C. B. (N. S.) 377, it was held that an action lies against the owner of premises who lets them to a tenant in a ruinous and dangerous condition, and who causes or permits them to remain so until, by reason of the want of reparation, they fall upon and injure the house of an adjoining owner. In Nelson v. Brewery Co., L. R. 2 C. P. Div. 311, it was held that a landlord is liable for an injury to a stranger by the defective repair of demised premises only when he has contracted with the tenant to repair, or where he has been guilty of misfeasance, as, for instance, in letting the premises in a ruinous condition; and that in all other cases he is exempt from responsibility for accidents happening to strangers during the tenancy. LOPES, J., writing the opinion, said: "We think there are only two ways in which landlords or owners can be made liable in the case of an injury to a stranger by the defective repair of premises let to a tenant, the occupier, and the occupier alone, being prima facie, liable: First, in the case of a contract by the landlord to do repairs where the tenant can sue him for not repairing; secondly, in the case of a misfeasance by the landlord, as, for instance, where he lets premises in a ruinous condition. In either of these cases we think an action would lie against the owner." Wocdf. Landl. & Ten. (13th Ed.) 735, it is said: "As regards the liability of landlords to third persons, it may be taken as a general rule that the tenant and not the landlord is liable to third persons for any accident or injury occasioned to them by the premises being in a dangerous condition; and the only exceptions to the rule appear to arise when the landlord has either (1) contracted with the tenant to repair, or (2) where he has let the premises in a ruinous condition, or (3) where he has expressly licensed the tenant to do acts amounting to a nuisance." In Knauss v. Brua, 107 Pa. St. 85, repeated in Fow v. Roberts, 108 Pa. St. 489, it is said: "We do not doubt but that in the absence of an agreement to repair the landlord is not liable to a third party for a nuisance resulting from dilapidation in the leasehold premises whilst in the possession of a tenant." In City of Lowell v. Spaulding, 4 Cush. 277, SHAW, C. J., said: "By the common law, the occupier, and not the landlord, is bound, as between himself and the public, so far to keep buildings in repair that they may be safe for the public; and such occupier is prima facie liable to third persons for damages arising from any defect. If, indeed, there be an express agreement between landlord and tenant that the former shall keep the premises in repair so that in case of a recovery against the tenant he would have his remedy over, then to avoid circuity of action the party injured by the defect and want of repair may have his action 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 continued to use the wharf and place for public resort; and in an action for damages to C., who was injured by the wharf defect, it was. held that the action was maintainable against both A. and B. jointly,—against A. solely on the ground that he knew the wharf was defective when he let it. In Owings v. Jones,

injuries by falling into a vault appurtenant to the property of the defendant, and built under the sidewalk of a public street. It was shown in defense that the property had been leased by the defendant for the term of seven years, for an annual rent, and the court held that the defendant was not relieved from liability if the vault was so con

the premises were let, or as to be liable to become unsafe in the necessary opening for the purpose of cleaning it; and it laid down the following rules: (1) When property is demised, and at the time of the demise is not a nuisance, and becomes so only by the act of the tenant while in his possession, and injury happens during such possession, the owner is not liable. (2) But where the owner leases premises which are a nuisance, or must, in the nature of things, become so by their use, and receives rent, then, whether

In Cunningham v. Bank, 138 Mass. 480, MORTON, C. J., said: "It is often said in the cases that the occupier and not the owner of a building is liable to third persons for damages arising from any defect. But by 'occupier' is meant, not merely the person who physically occupies the building, but 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 public, under the duty of keeping it in repair." In Dalay v. Savage, 145 Mass. 38, 12 N. E. Rep. 841, land abutting on a public street in a city was sold under a power contained in a mortgage, and the owner of the equity of redemption released any title he might have to the purchaser, and was allowed by the purchaser to remain in posses-structed as to be unsafe for passers-by when sion under an agreement that he should pay rent at a certain rate monthly. At the time of the sale there was an open and visible defect in the cover of a coal-hole in the sidewalk in front of a house on the land, which hole led to the cellar of the house. In consequence of this defect during the tenancy a person walking on the sidewalk fell into the hole, and it was held that he could maintain an action against the purchaser of the land for the injury thereby sustained. FIELD, J., writing the opinion, said: "It seems to be 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, 10 Atl. Rep. 620, A., owning a defective wharf used in connection with a public re

ant."

repair has shown itself; and that this rule applies to a lessee out of possession who has sublet to another who is in possession. The

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learned judge said: "Generally speaking, the person responsible for a nuisance is he who is in occupation of the premises on which it exists. * * * As between him who is the landlord and owner, and him who is the lessee and occupant of the premises, there is, in general, no obligation upon the former to keep them in repair, when he has made no express contract to that effect. Numerous authorities are cited. We have examined all of them. It will be found that in them the liability of the defendant is placed upon one of these grounds, viz.: That he owned or had right in the premises, and leased them with the nuisance upon them; 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 needs 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 to abate the nuisance must be shown. In Edwards v. Railroad Co., 98 N. Y. 247, it is said: "If a landlord lets premises and agrees to keep them in repair, and he fails to do so, in consequence of which any one lawfully upon the premises suffers injury, he is responsible for his own negligence to the party injured. If he demises premises knowing that they are dangerous and unfit for the use for which they are hired, and fails to disclose their condition, he is guilty of negligence which will, in many cases, impose responsibility upon him. If he creates a nuisance upon his premises, and then demises them, he remains liable for the consequences of the nuisance as the creator thereof, and his tenant is also liable for the continuance of the same nuisance. But where the landlord has

created no nuisance, and is guilty of no wilful wrong or fraud or culpable negligence, no case can be found imposing any liability upon him for any injury suffered by any person occupying or going upon the premises during the term of the demise; and there is no distinction stated in any authority between cases of a demise of dwelling-houses *and of buildings to be used for public purposes. The responsibility of the landlord is the same in all cases. If guilty of negligence or other delictum which leads directly to the accident and wrong complained of, he is liable; if not so guilty, no liability attaches to him."

can it be said that they [the defendants] suffered it [the nuisance] to continue, and so failed in their duty if they had no knowledge, actual or constructive, of the defect, and were out of possession and control? * * * It is quite certain then that the plaintiff in this case was bound to establish some fault of omission or commission on the part of the landlord leading to the injury, and barely showing him to be owner is not enough. There was no fault of commission. That is conceded. There could be no fault of omission unless the landlord was bound to repair the defect, had actual or constructive notice of its existence, or was bound at his peril to discover and remedy it." In Walsh v. Mead, 8 Hun, 387, DANIELS, J., said: "The erection and maintenance of a nuisance is a wrong, and, by leasing the building affected

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