147 P. 949 | Cal. | 1915
Plaintiff appeals from a judgment entered after the sustaining of a demurrer to his complaint.
The complaint was in three counts. Briefly stated, the facts alleged were as follows:
Plaintiff was the tenant from month to month of two floors of a building situated in the city of Sacramento and belonging to defendant. Plaintiff had been for two years conducting successfully a lodging-house in the part of the building so occupied. The owner of the adjacent property, the Folsom Investment Company, began excavating on its land, and finding it necessary to dig lower than the foundations of defendant's building, gave written notice to defendant of the general nature of the excavations, but defendant failed to do anything by way of providing lateral support for his building. Despite the exercise of reasonable care by the owner of the adjoining land in making the excavation and without negligence or fault on plaintiff's part, the building collapsed, thereby seriously injuring plaintiff, destroying the furniture in her lodging-house, causing her in her flight to leave behind one hundred dollars worth of other personal property, and breaking up her business. The facts pleaded and the relief asked are the same in each count. The first count is upon defendant's alleged negligence in failing to shore up or otherwise protect his building; in the second it is alleged that by such failure he created and maintained a nuisance; and in the third it is averred that by reason of defendant's negligence plaintiff was deprived of the possession and enjoyment of the premises which had been leased to her. Plaintiff's counsel in his brief insists that the landlord is liable to his tenant under the circumstances alleged: 1. For disturbing the tenant's rights in violation of the implied covenant for quiet enjoyment; 2. For permitting a nuisance on the premises; 3. For breach of his general duty to the public to refrain from negligent conduct; and 4. For violation of his special duty not to injure any one properly on his real property.
Appellant's counsel concedes that the case of Brewster v. DeFremery,
Brewster v. De Fremery was in all of its essentials exactly like the case at bar. The plaintiff's decedent had been killed by the collapse of a building of which he was tenant from month to month. No covenants to keep the premises in repair or in habitable condition were averred, and for the purposes of the decision the court assumed that there were none. The house fell because of an excavation on the adjacent land. Defendants had timely notice of the excavation, which they ignored. A demurrer to a complaint which pleaded these facts was sustained. The court said in the course of the opinion.
"The house did not fall in consequence of any act of the owners, but in consequence of the acts of parties owning the adjoining lot, in excavating it for purposes of their own, after the deceased entered into the possession of the demised premises under the lease. There was no covenant on the part of the lessors, the defendants, to uphold or keep the premises in repair, or in a habitable condition. Without an express covenant to that effect, they were not bound to repair, or to keep the premises in a habitable condition. We think the rule correctly stated in Howard v. Doolittle, 3 Duer (10 N.Y. Super. Ct.), 464. In that case it was held that a landlord is in no case bound to repair, unless by force of an express covenant or contract, and that, even when a building is let for a special purpose, and its use and occupation for any other is, in terms, prohibited, there is no implied contract or warranty on the part of the landlord that the building shall be, or continue, fit for the purpose for which it was demised. . . . Aside from the relation of landlord and tenant there is no ground, under the circumstances alleged, for holding defendants responsible. The injuries resulted from the occupancy of the premises by the deceased as a tenant. The landlord was under no obligation to uphold *716 or repair, and there was no breach of duty on his part. The cases cited in relation to nuisances have no application."
We see no reason for departing from the doctrine of Brewster v.De Fremery, unless the duty of the landlord has been changed by section
Appellant, while admitting the force of these decisions, insists that since the adoption of section
Plaintiff's contention that defendant was liable for the maintenance of a nuisance is also fully answered by Brewster v.De Fremery. The same point was made in that case and decided adversely to the appellant there. Indeed, as all of the obligations between the parties arose from the relation of landlord and tenant there is no force in any of appellant's contentions with reference to the defendant's alleged breach of duty to the general public or to one properly on his premises. The implied covenant for quiet possession is measured by the obligation of the landlord toward the tenant under the lease. If not compelled by the lease or the statute to reinforce the wall of his building, no implied covenant for quiet enjoyment could compel him to do so any more than he could be compelled to sue to enforce the removal of a powder factory which might be established near the property. In this behalf appellant says that the landlord owes to his tenant a duty beyond and in addition to the duty of repairing dilapidations — a duty which arises out of the implied covenant for quiet enjoyment. He asserts that the landlord, for example, could not be held guiltless if he should deliberately throw rocks at his tenants or should negligently allow rocks to be rolled down upon them. The illustration is not apt. The injury of which this tenant complains was not due to any act on the part of the landlord, but was due entirely to the excavation on the adjoining property. Appellant cites Jessen v.Sweigert,
It follows from the foregoing discussion that the complaint does not state a cause of action and that the demurrer was properly sustained.
The judgment is affirmed.
Lorigan, J., and Henshaw, J., concurred.