115 N.Y. 203 | NY | 1889
Lead Opinion
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The will of John Gardner came under consideration in Greason
v. Keteltas (
There was no proof, even if that were in any way important, that the pier was out of repair in 1817, when Gardner died. It became out of repair and defective at some time during 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 inPeople 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 *209 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.Boylston Market Assn., 14 Gray, 249; City of Lowell v.Spaulding, 4 Cush. 277; Inhabitants of Oakham v. Holbrook,
11 id. 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 in repair, and omits to repair, and thus they become a nuisance; if he demises premises to be used as a nuisance, or for a business, or in a way so that they will necessarily become a nuisance. In all such cases I believe there is now no dispute that the owner would be liable. But an owner who has demised premises for a term during which they become ruinous, and thus a nuisance, is not responsible for the nuisance unless he has covenanted to repair. It has even been held in some cases that an owner may demise premises so defective and out of repair as to be a nuisance, and if he binds his tenant to make the repairs he is not responsible for the nuisance during the term. (Pretty v. Bickmore, supra; Gwinnell v. Eamer,
L.R., 10 C.P. 658; Leonard v. Storer,
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 Pennruddock's Case (5 Coke, 100 b), 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 feofee, unless he does not remove the nuisance after request; and inPierson v. Glean (
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 the pier had come to them not subject to any lease? To cast such a responsibility upon a grantee or devisee might imperil his whole fortune. 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; *214 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. InRosewell v. Prior (2 Salkeld, 460), a tenant for years erected a nuisance and afterwards made an under-lease, 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 *215
after he had made an under-lease? And it was held that it would, "for he transferred it with the original wrong, and his demise affirms the continuance 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. Liverpool BrewingCompany (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 injury to a stranger by the defective repairs of premises let to a tenant, the occupier, and the occupier alone, being primafacie liable — first in the case of a contract by the landlord to do repairs when the tenant can sue him for not repairing; secondly, in the case of a misfeasance by the landlord, as, for instance, where he lets the premises in a ruinous condition. In either of these cases we think an action would lie against the owner." In Woodfall's Landlord and Tenant ([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 Penn. 85), repeated in Fow v. Roberts (108 id. 489), it is said: "We do not doubt but that in the absence of an agreement *216
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, Ch. 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 primafacie 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 distinctly proved." And to the same effect is Lorne v. Farren Hotel Company (
In Owings v. Jones (
Now, within these authorities, what ground is there for imposing liability upon these defendants for this nuisance? They did not create it, and had no connection whatever with those who did create it. They were not bound by the lease to repair the pier. They did not demise the pier with the nuisance thereon, and they had no notice, actual or presumptive, *222 of the existence of the nuisance. None of the grounds of liability exist which are mentioned by Judge FOLGER in Clancy v. Byrne. They were simply entitled to the rent; it is not even proved that they actually received any. But it has never been held in any case that the receipt of rent imposes responsibility upon a landlord for a nuisance for which he is not otherwise responsible. Landlords always are entitled to rent; and if the mere receipt of rent would make them responsible for a nuisance upon the demised premises, then they would always be responsible, irrespective of other circumstances which have always been deemed necessary to create the responsibility.
The fact that the defendants, under the lease, had the right to go upon the pier and make repairs, if they should see fit to do so, is wholly immaterial in this case. Even when an owner demises premises and covenants to repair, the covenant cannot enure directly to the benefit of a third person not a party thereto. But in such case the third person injured because, for want of repairs, the demised premises have become a nuisance, has a cause of action primarily against the tenant. But because the tenant in case of a recovery against him could sue his landlord for indemnity upon the covenant, to prevent circuity of action, the person injured may bring his action against the landlord, not because the landlord owed him any duty to repair, but because he owed that duty to his tenant. It would have been wholly immaterial if these defendants, owners of the pier, had let it without reserving any right to go upon it for repairs, and even if they could not have gone upon it for repairs without being trespassers. (Fish v. Dodge, 4 Denio, 311; Swords v.Edgar, supra.) There is no case which holds that whether the landlord can or cannot go upon the demised premises to make repairs is a material circumstance affecting his liability for a nuisance existing thereon. It was held in Clancy v. Byrne (supra), that a lessee who has covenanted with his landlord to repair is not responsible to a stranger for a nuisance upon the demised premises while in the possession of a sub-tenant to *223 whom he had let them. As he had made no covenant to repair with his tenant, and was not bound to indemnify him, the person injured could not maintain an action against him, although he had covenanted with his landlord to repair. Here, according to the law of that case, if these owners had even been under a covenant with their predecessors in the title or with any other person but Phelan, to keep this pier in repair, their breach of the covenant and failure to discharge their duty to their covenant would not have made them liable for the death of the child; and with much less reason can such a liability spring from a mere stipulation in a lease made by one for whose acts they are in no way responsible which merely put it in their power to make the repairs. In cases where it is said that a landlord bound to make repairs upon demised premises is responsible for a nuisance thereon, the obligation to make the repairs was one existing between him and the tenant. (Russell v. Shenton, 2 Gale D., 573.) The whole argument on this point is summed up in the statement that, as there was here no breach by the defendants of any duty due from them to the tenant, the stipulations in the lease do not concern a stranger thereto.
There is no authority from the reported decisions or from the text books which imposes upon the landlord, not otherwise liable for a nuisance upon demised premises, the duty of active vigilance to ascertain their condition. A landlord has never been held responsible for a nuisance because he did not himself obtain notice of its existence. But it has always been held to be the duty of any person seeking to enforce the landlord's responsibility for a nuisance to show that he had such notice.
There are two cases to which I have not yet referred, which are so like this in all material particulars that they ought to be received as conclusive authority for the defense of this action. In Woram v. Noble (41 Hun, 398), a case entirely similar to this, the action was brought to recover damages for an injury sustained in consequence of a defective coal-hole; and it appeared that the defendant became the owner of the *224
premises in September, 1883, subject to a lease to a tenant expiring May 1, 1884, which required the tenant to make all repairs; that the coal-hole was then in the sidewalk, but it had not been constructed by the defendant, nor did he have any notice or knowledge of its defective condition, although the tenant had noticed the depression in the stone about a year previous to the accident; and it was held that the defendant could not, in the absence of any evidence to show that he was responsible for the condition of the coal-hole or had knowledge of its defective condition, be held liable for the injury sustained by the plaintiff. The judge writing the opinion said: "We find no special decision and no principle enunciated in any elementary work that will furnish a basis for a recovery against the defendant in this action. He did not construct the work that became a nuisance, and he did not continue it in any legal sense." There, as here, the defendant became the owner subject to a lease, and the nuisance existed at the time he became such owner, and it was held that he could not be made liable for the accident without proof of notice to him of the existence of the nuisance. In Conhocton Stone Road v. Buffalo, New York andErie Railroad Company (
It is frequently said that a landlord who has demised premises with a nuisance thereon, continues liable for the nuisance, although he did not create it, because it was a misfeasance to demise them in that condition. But it will be found that all, or nearly all, the cases in which this has been said are cases in which, at the time of the demise, the landlord had notice of the nuisance. In the case last cited the defendant demised the premises with the nuisance thereon, and yet it was held not to be liable because there was no proof of notice.
I will now notice the principal cases which are supposed to be in conflict with some of the views I have expressed and with the conclusion I have reached. In Brown v. Cayuga and SusquehannaRailroad Company (
If Phelan had been the mere servant or agent of the defendants, and had caused or permitted this or any other nuisance upon the pier, then the defendants would have been responsible for it, and the cases of Clark v. Fry (
It is said that many of the cases I have cited were nuisances created by damming, obstructing, polluting and diverting streams, and that they are not, therefore, applicable. Why are they not applicable? They were all decided by the application of the general law of nuisance, and it has never been suggested in any case that there is any law of nuisance peculiar to such cases, and that they are not to be governed by the same rules that apply to other nuisances. They announce general rules in terms applicable to all cases of nuisance.
If it is at all material, it is a mistake to assume that the children of Mrs. De Dion first became owners of this pier upon the death of their mother. Under the will of their grandfather, John Gardner, they had vested remainders therein long before the death of their mother, and long before the pier was out of repair. They took no new title upon the death of their mother. The estate which was before in them was simply enlarged by the disappearance of the precedent estate. Were they bound in some way to divest themselves of the estate which they had long had in order to escape responsibility for a nuisance which they had not created or authorized? Or, if they did not or could not do that, were they bound to go upon the pier and possibly expend in repairs *232 more than the entire income therefrom to escape responsibility for the nuisance? And were they bound to do this at the peril of great damages, without notice of the nuisance, while the pier was in the possession of a tenant who had hired it from a stranger to them at a small rent, because it was out of repair, and who was under a duty to the public to keep it safe and in repair? If the children of Mrs. De Dion had, upon the death of their mother, demised this pier without any covenant to repair, and it had become out of repair and a nuisance during the term of the demise, they would not have been responsible for the nuisance; and why should a greater responsibility be cast upon them because the pier came to them subject to the demise? What have they done to incur the responsibility? If they had demised the pier knowing it was out of repair, they would have been guilty of continuing the nuisance, and upon that ground would have been responsible for it. But they have done nothing. They neither created, authorized or continued the nuisance, and they were not bound by contract or the law to discharge a duty which rested upon the tenant.
I am confident that a holding that the defendants are liable to the plaintiffs for the consequences of this nuisance would be a departure from the law of nuisance as universally approved in the books.
I have not thus far alluded to the claim of the defendants, that they may find protection in the fact that a receiver had been appointed of the rents. It is not necessary to determine whether that fact furnishes them an independent defense. The pier and other property came to them as tenants in common. One was a lunatic, and a partition on that account became important, if not necessary. An action was commenced by one tenant in common against the other two, and a receiver was appointed to take the rents which accrued after the death of their mother. The receiver thus appointed was not their agent. If he had created any nuisance or done any other wrong, they would not have been responsible for it. He was the agent and officer of the court, bound to obey its *233 directions, and subject to its control. It ordered him to take and retain sufficient of the rents, otherwise payable to the defendants, to make necessary repairs. Under such circumstances, with a tenant bound to make the repairs, and a receiver also bound to make them, could the owners, one a lunatic and the other two residing in Europe, without any notice of the nuisance, be charged with any responsibility therefor on the theory of fault or delictum on their part?
The principles here involved are very important, and I have deemed a pretty thorough examination of this case quite proper. My conclusion is that this action, upon the facts now appearing, cannot be maintained, and that the judgment should be reversed and a new trial granted.
Dissenting Opinion
I cannot concur in the judgment about to be pronounced in this case. It appears that on the 8th of October, 1882, the plaintiff's intestate, while lawfully upon the easterly half of the pier or wharf known as No. 54, in the city of New York, fell through its flooring into the East river and was drowned. The plaintiff, as administrator, brought this action for damages to the next of kin on account of his death. Issue was joined by the defendants and brought to trial before a jury. At the close of the plaintiff's case it was made clear, from admissions in the answer, that the defendants were owners of that part of the pier where the accident happened, and by evidence that it was in a defective condition in 1879, and thenceforward until it gave way; and the jury also found, upon sufficient evidence, that the intestate did not, by any negligence on his part, contribute to the injury. Upon that state of the case the defendants were clearly liable upon the principle of the maxim: "Sic utere tuout alienum non lædas." There was no error, therefore, in denying their motion for a dismissal of the complaint, and the exception thereto was without merit.
It is claimed, however, by the appellants that their relation to the property was so controlled by circumstances afterwards *234 disclosed by way of defense, as to relieve them from liability. At the close of the plaintiff's case the defendants went into evidence, and not controverting the ownership of the pier, its condition, or the plaintiff's injury, they showed that James Gardner, being the former owner of the pier, devised it with other property in fee to certain persons in trust that they should, during the lives of the testator's children, "in the first place, out of the rents, issues and profits thereof," uphold, support, amend and repair "the same with all needful and necessary amendments, repairs and alterations, and, next, distribute the residue among his children, and, after their death, among their issue, to whom was also devised in fee the remainder;" that the estate was subsequently divided, and the pier in question, among other pieces of real estate, "fell to Jane, the testator's daughter, and her issue, viz.: Mrs. Hutton and Mrs. Steele, the defendants herein. The original trustees having died, McCarty was appointed by the court trustee in their place, of that portion of the property which fell to Jane and her heirs, and he, as such trustee, on the 1st of May, 1880, executed to one Phelan a lease for that part of the pier already referred to, for the term of five years, at an annual rent of $750 for three years and $850 for the other two years, but reserving to "the party of the first part (the lessor), or his agent, the right to enter the premises for the purpose of making repairs, if he should see fit to make them." "But," it continued, "the party of the first part shall not be obliged to repair the premises," and by its terms the lessor was to be exempt from all liability to the tenant by reason of their non-repair, either then or in the future, and no obligation was imposed upon the tenant to keep them in order or in repair. McCarty continued to act as trustee until the death of Jane, the surviving daughter of the testator, which took place May 22, 1881, whereupon suit was at once commenced by Mrs. Steele for partition of the premises which had been set apart to her mother and her issue, and in that action an order was made July 29, 1881, by which one Brown was appointed receiver "of the rents, issues and profits that have accrued *235 since May 1, 1881, of the lands and premises described in the complaint in that action and which were set apart to Jane De Dion, deceased, in severalty and her issue." Upon these facts, the learned counsel asked the court to direct a verdict for the defendants on the grounds:
First. "Because this property was leased by Thomas McCarty, trustee, on the first day of May, 1880, for five years, and that the trustee then held the legal title to the property; that Jane De Dion, the life tenant, was living until May, 1881, a year and one month after the lease was made, and the defendant owners took the pier at that time, subject to the lease, and at no time have had any notice of the defective condition of the pier.
Second. "That the defendant owners cannot be charged with the condition of the pier at the time of the accident, because at that time it was leased to the defendant Phelan, and it was his duty to repair it; and in the absence of notice of the defective condition of the pier to the defendant owners the duty to repair, on their part, never arose."
Third. "Because the defendant owners did not become owners of the pier until after the death of the life-tenant in May, 1881, and took it at that time, subject to a lease to run for five years from May 1, 1880, to May 1, 1885, and there is no proof in the case that they had any knowledge or notice of the defective condition of the pier."
The motion was denied. The defendants then called Brown, the receiver, and proved that he had acted as such as to the rents until June, 1887; that at the time of his appointment, and for some time after, McCarty was insane; that Mrs. Hutton resided in France and Mrs. Steele in England; that Phelan occupied the full term of his lease. They also proved an order of the court made on the 5th of November, 1881, upon the petition of Mrs. Steele and Mrs. Hutton, by which the receiver was directed to reserve out of the receipts by him as such receiver, and set apart quarterly and each and every quarter a specified sum "to be applied by him to the payment of the taxes, insurance, necessary repairs, Croton water tax *236 and other incidental necessary expenses, commissions, etc. And that he pay the remainder of such receipts each and every quarter, as the same shall accrue, to Rosalie M. Steele, or her attorney in fact, and to Henrietta Hutton, or her attorney in fact, and Fanny McCarty, as committee for Thomas McCarty, in equal proportions."
It was then proven by defendants that on the 4th of October, 1884, the plaintiff in this case applied to the court for leave to sue Brown, the receiver, upon the cause set out in the complaint in this action, and that the motion was denied. The defendant's counsel thereupon renewed his motion that the court direct a verdict for the defendant on the further ground that "at the time the accident happened there was a receiver in control of the property, appointed by the court, collecting the rents, issues and profits, and that under the order of the court he had been directed to make necessary repairs to the premises." The learned trial judge declined to do so, and his rulings have been sustained by the General Term. I agree with that court in the conclusion that no error was committed by the trial judge.
It is obvious that the supposed exemption from liability, so far as the condition of the premises and the relations created by the devise and lease are concerned, was at the trial put by the defendants' counsel upon the absence of notice to the defendants of the defective condition of the pier. The lack of that notice or knowledge form the ground of the first three propositions submitted to the trial judge, and that point is now presented with great earnestness in support of this appeal. The validity of the lease is assumed by both parties. It derives its efficacy from the devisor (Greason v. Keteltas,
The will of Gardner, as we have seen, makes it the duty of the trustees mentioned in it to keep the premises in repair and, as the first object of the trust required them, to apply all the rents and profits if needful to that purpose. This duty devolved upon McCarty as their successor. If we assume that he could shift that duty to another, he has not done so. If from the mere act of leasing such effect could be implied, it could only be where the right to the possession of the premises had been wholly transferred to the tenant, so that an entry by the lessor or landlord would be a trespass. The lease in this case has not that effect; the right of entry, and so the right to the possession of the pier for the purpose of repairs, never passed from the lessor, and the reservation is as broad as the duty imposed by the will. It is true it is to enter if the lessor shall see fit to make repairs but it must be deemed that he intended such repairs, as the will directed, and to have in view those indicated by the testator, viz., "all necessary repairs." The reservation shows that the lessor deemed himself bound to provide for them, and that he intended to do so. Such is the effect of the provision in the lease, and it, moreover, must be read as if it incorporated the directions of the will in regard to the duty of the trustee in respect to repairs. The lessor, therefore, could not avail himself of the principle which requires the tenant, and not the landlord, to make the demised structure safe for the traveler. The right to enter included the right of supervision and inspection, and, indeed, the entire control of the premises, so far as was necessary to enable him to make all necessary repairs. (Kirby v. Boylston Market Association, 14 Gray, 250.) If the accident had occurred while the trustee's estate continued, he would have been liable, not only because the leased premises were defective when the lease was executed and the responsibility incurred as matter of law, but because he was himself bound to the duty *238 of reparation. During that period of time these defendants would not have been liable, for they had neither the title to the property, nor its possession, nor in any capacity control over it. Their condition was like that of the defendant in People v.Townsend (3 Hill, 480). They were not responsible for the condition of the pier nor connected with its possession, for they had no estate nor interest in the land and could only enforce the execution of the trust. The trustee, on the other hand, so long as he held that office, had the title and the whole estate, subject only to the execution of the trust; and if from the condition of the property a third person was injured, it was his fault and his the responsibility. The legal estate of the trustee, however, was in him so long only as the execution of the trust required, and it then vested in the persons beneficially entitled. (1 R.S. 728, §§ 61, 62.) This occurred upon the death of the defendant's mother, and it is expressly averred by the defendants that they "then became, as owners in fee, entitled to the rents, issues and profits of the" premises in question under the lease made by the trustee. By thus accepting the estate under the devise the defendants took the place of the lessor, assumed the duty of caring for the property, and, unless the case is exceptional, in suffering it to remain in a dangerous condition they came short of their obligation, and actual notice was not material or necessary to enable the plaintiff to maintain his action. As soon as the defendants acquired the right to the possession of the pier, or to the rents, they were bound to know its condition and at once guard against the danger to which the public had been before exposed, and became liable for the consequences of having neglected to do so in the same manner as if they themselves had originated the lease and the nuisance. They were able at any time to gain possession of the premises for the purpose of repair, and this enabled them to abate the nuisance. In such a case the landlord is not exempt from liability. (Coupland v. Hardingham, 3 Camp. 398; Irwin v.Sprigg, 6 Gill. 200.)
A variety of cases have been referred to by the appellants, *239
or brought to our attention during the consideration of this appeal, which, it is claimed, hold a different doctrine. They have no application to the facts on which the defendants are chargeable. The cases thus cited relate principally to the obstruction of private ways, or the diversion of water-courses, viz.: Beavers v. Trimmer (
The law is no doubt so and the reason is obvious. These consequences are often such as cannot easily be known except to the party injured, and he, it is said, should be presumed to acquiesce so long as he rests in silence and does not apprise the purchaser of any cause of complaint, and the latter has, therefore, a right to suppose that the structure which he has bought was rightfully erected (Eastman v. Amoskeag Mfg. Co.,
The cases cited also fall within the well-settled rule that one bound to do something in a certain specified event, the happening of which lies within the peculiar knowledge of the opposite party, is not in default until notice is given to him. Until then the silence of the aggrieved party is held to be evidence of a license to maintain the thing causing injury. Nearly all of them are noted in Conhocton Stone Road v. Buffalo, New York ErieRailroad Company (supra), and that case stands on the same reason. It there appeared that the B. C.R.R. Co., in 1851 or 1852, constructed an embankment and bridge as part of its road-way. The defendant became the owner of these structures upon foreclosure sale, and, in 1863, it leased the property to the Erie Railway. The structure during high-water caused an overflow to plaintiff's injury in 1864 and 1865, and for this the plaintiff recovered against the defendants' motion for a nonsuit. The judgment was reversed on the ground that proof failed to show notice or knowledge on the part of the defendant of the existence of the nuisance.
To the same effect and on similar grounds is Wenzlick v.McCotter (
In Irvine v. Wood (
The same principle applies here. It is in evidence, as we have seen, that the pier was in a weak and dilapidated condition when the lease was made and when the defendants became owners. From the nature of the material of which it was constructed it would, unless cared for, become weaker and more dilapidated, and consequently more dangerous to human life. Of the operation of natural causes and their effects upon such structures the defendants are presumed to have knowledge, and they could not so neglect property subject to those causes that it should for want of repair bring injury upon another without being responsible for that injury. But it is said they were non-residents or absentees. I think that is immaterial. What they were bound to know they must be deemed to have notice of, wherever they were. It was their duty to know the condition of the pier. And it is fair to presume from the single fact of proprietorship that it was known to them.
But there was not only proprietorship, there was, as we have seen, by the very terms of the lease, a right of entry and such possession as might be needful for repairs retained by the lessor. To that extent the owner was at all times in possession. And these defendants, when they became the absolute and beneficial owners of the pier, must be presumed to have known not only the situation and extent of their own interest, but the qualification made by the lease. They knew *243 the pier was of a material liable to decay. They knew it was actually decaying; that the tenant was under no obligation to repair, and that the right to enter for the purpose of repairing was in the lessor and formed one of the conditions of their own estate. As there was in them a right of entry, there was also a right of occupation which the tenant could not abridge.
It is true that, until the death of Mrs. De Dion, the defendants were reversioners, but they were not passive reversioners. They became owners of the property May 22, 1881, and in July, 1881, through proceedings instituted by themselves as owners of the property, they procured the appointment of Brown as receiver of the rent, and in November, 1881, obtained the order (supra) for its distribution, and actually received the rent. Thus they voluntarily went into the place of the ancestor and devisor, accepted the property with its emoluments, and the information which induced them to do so necessarily included its condition and so charged them with the burden which its care required. The neglect of this duty, the suffering the pier to fall into such a state of decay as to become dangerous to those lawfully coming upon it, was the creation of a nuisance. Doubtless, the original landlord would have been liable (Swords
v. Edgar,
Notwithstanding the validity of the lease, and its continuance for the full term is not questioned by the plaintiff, the general rule enunciated in this citation holds good, although we need not, and do not, go so far as to say that such would be the case if the defendants had no opportunity of removing the nuisance. *244
That feature is not in the case. When a landlord is exempt from liability on account of the bad condition of his premises, it is because the tenant is in possession, and the owner has no right to enter upon them; but where he has the power to prevent or abate the nuisance, he is liable for an injury resulting therefrom to third persons. (Clark v. Fry,
In the Wolf Case (supra), the distinction is again drawn between the liability of a landlord who has parted with all his right to enter upon the demised premises and one who retains control, and the judgment was reversed because it established liability on the part of the landlords "who were out of possession and control." It cannot be said that either the lessor or these defendants had no control over the premises and "no opportunity of removing the nuisance," and as they *245 could abate it, and did not, they are liable for its continuance. Moreover, the law casts upon the owner the duty of obeying the obligation which he retained. It did not devolve upon the tenant under the lease to make repairs, and it is said in Wood's Landlord and Tenant (618), that "where a nuisance results from such want of repair, and there is no covenant to repair on the part of either the landlord or tenant, an action may be maintained against either of them therefor." It is not material whether this duty is imposed by the principles of the common law or by statute.
In Bellows v. Sackett (15 Barb. 96) the objection was made that the action should have been against the tenant in possession, and not the landlord; but it was held that to make the objection available, it should be shown that the tenant was bound to make repairs; it was not to be presumed, and JOHNSON, J., says, "however that may be, I am inclined to the opinion that, in any event, the plaintiff may resort directly to the owner as the one who keeps up and maintains the erection which causes the injury, whoever may be the temporary occupant under him."
It is very difficult to so read the lease as not to perceive a recognition by both lessee and lessor of the defective condition of the premises, their tendency to become worse, a mutual reluctance on either side to assume the burden, but resulting finally in the reservation by the lessor of a right to enter and make repairs, should "he see fit to do so." It would be most unreasonable, therefore, not to hold him responsible for injuries resulting from apparent defects, or defects known to him, or that would have been known if he had exercised ordinary care. If repairs were necessary he was bound "to see fit" to make them.
The same liability devolves upon the defendants as assignors from the devisor. They take the benefit of the lease and under it are bound by its obligations, whether expressed in terms or incorporated by implication from the will.
As to the plaintiff's intestate, it was not optional whether the owners should make those necessary repairs or not. They *246
were required to do so because of the maxim already adverted to, and which furnishes the reason for a remedy in case of nuisance. The intestate was as lawfully on the pier as if on a highway which he had the right to travel and use, and the owner of the pier comes directly within the rule which requires a party to protect a structure upon his own premises which is dangerous to others rightfully there. It was, therefore, a duty on the part of the owner to put the pier in a safe condition. (Beck v.Carter,
They took the entire estate, and if they took subject to the lease, it was because they chose to do so. The rent was incident *247 to the reversion and followed it. The defendants, therefore, were put at once to their election to reject the devise or assume the title and treat the person then in possession under the lease as a tenant. By undertaking the control and receiving rent they made their election. They became his landlord and he their tenant. They come, therefore, within the general rule that the receipt of rent is an upholding and continuing of the nuisance. (Gandy v.Jubber, 5 B. S. 78; Todd v. Flight, 9 C.B. [N.S.] 377;Swords v. Edgar, supra.)
Nor is it any answer that a receiver had been appointed of the rents and issues of this property, or that the court refused to direct an action to be brought against him. His duties were specific, and it does not appear that the injuries complained of resulted from his negligence, default or misconduct, or that the plaintiff had any claim against the fund or property in his hands, but, in any aspect, it was in the discretion of the court which appointed him to take cognizance of the receiver's liability, if any, and determine it, or permit the aggrieved party to sue at law. Its decision cannot affect the present litigation. The receiver merely represented the owners of the pier, or those entitled to the rents and profits, and because, on their application, he was directed to pay a portion of the receipts upon necessary repairs, it in no respect exonerates the owners or those who would otherwise be liable for their own neglect. He had no exclusive power, nor was that the character of the jurisdiction of the court. As to the question involved, his official position was no better screen for the defendants than would have been that of a common agent selected by the parties without the interposition of the court. The property was leased. The receiver was directed to receive the rents, with a portion repair the property, and do certain other things respecting it, and divide the residue. He had neither possession of nor control over it. This action interferes with no act or duty on his part.
The case of Metz v. Buffalo, C., etc., Railroad Company
(
They succeeded to the burden as well as to the advantages of ownership. Under the lease the lessor and his successors in interest remained charged as to third persons with the duty of repair. They had the right to enter for repairs, and so were bound to make them. They cannot be relieved from its performance by the undertaking of another party, although that undertaking is sanctioned by the court, that he will apply a portion or all the money received under the lease for that purpose. Neither the plaintiff nor the injured person was a party to such agreement or order, and the obligation of the receiver in that respect is a matter solely between him and the appellants, and cannot relieve the latter from their liability to third parties.
The case states that the defendants' counsel excepts "to that part of the charge in which the court says that the owners — the defendants in this case — are liable if the pier was defective at the time the lease was made."
The part of the charge to which attention is directed is, I suppose, the following: "If you believe this pier was out of condition at the time the lease was made, and that it continued so up to the time of the accident, the defendants are liable. Having succeeded, upon the death of Mrs. De Dion, to the ownership of the premises, they are absolutely freed from any trust which may have vested in Mr. McCarty, her trustee."
The charge as given was correct and justified upon the principle which led to the decision in Swords v. Edgar (supra); and the rule there declared that if "at the time of the demise and delivery or possession to the lessee, it is in a defective and *251 unsafe condition, and in consequence thereof, while in the possession of the lessee, an injury happens to one lawfully thereon, the lessor, who is receiving a benefit by way of rent or otherwise, is liable."
It involved not only a defective condition of the pier at the time of the demise, but a condition causing an injury, or, as the trial judge said, "a condition which continued up to the time of the accident." For this condition the defendants, as owners, were responsible, and neither their absence from the state nor the intervention of a lease or a receiver could protect them against the claim of one suffering from it.
The judgment of the court below should, therefore, be affirmed, with costs.
ANDREWS, FINCH and PECKHAM, JJ., concur with EARL, J.; RUGER, Ch. J., and GRAY, J., concur with DANFORTH, J., dissenting.
Judgment reversed.