57 Me. 436 | Me. | 1869
This case Avas brought against the defendants as alleged owners of-certain lands and buildings in the city of Bangor, ' under R. S., c. 14, § 16, which provides that,—
“ When any source of filth, or other cause of sickness, is found on private property, the owner or occupant thereof shall, within twenty-four hours, after notice from said officer, at his own expense, remove or discontinue it; and if he neglects, or unreasonably delays to do so, he shall forfeit not exceeding one hundred dollars;*439 and said committee or officer shall cause said nuisance to be removed or discontinued; and all expenses thereof shall bo repaid to the town by such owner or occupant, or by the person who caused or permitted it.”
The case finds that a due notice was given, a neglect on the part of the defendants, and a removal of the nuisance by the municipal officer, the expenses of which are sought to be recovered in this action.
The principal ground for defense set up is, that the premises were leased to certain individuals, who created or suffered the nuisance, for wdiose acts the defendants are not responsible. Whether they be so or not depends upon the construction of the statute.
The remedy against the owner or occupant, in common parlance, would be construed to be against either at the option of the officer, as he should decide as to the responsibility of the respective parties; for it is notorious that many occupants under owners are totally irresponsible, and are only suffered to occupy except on condition of paying rent in advance. The statute implies that the owner can select 1ns own tenants, and impose upon them all reasonable restrictions ; but the town has no such authority. Such a contingency must have been contemplated by the legislature, therefore, to avoid the evil, and to afford a speedy and ample remedy, the term owner or occupant was inserted in the law.
But it is contended that the occupant is the owner for the time being. If such be the construction, then one of those words becomes either superfluous or synonymous. Such is not to bo inferred, and such is opposed to their respective definitions.
“Occupant. One who has the. actual use or possession'of a thing.” — Bouvikr, Law Lie.
“ Owner. The right of the owner is more extended than that of him who has only the use of the thing.” — Lb.
Defendants defaulted.
This action is founded upon c. 14, § 16, R. S. It is conceded that the plaintiffs, through their board of health, have done all that is necessary to give them a cause of action against some party; and the only question is, whether the defendants are the persons liable. This depends upon the meaning of the word “ owner,” as used in the section referred to. The case finds that, at the time of the injury complained of, the defendants were the owners of the land described, subject to an outstanding lease for a term of years. The cases cited by the counsel for defendants, as well as the definition of the word as given by lexicographers, show that the lessees were owners of the land for the terms described in their several leases. Both the defendants, then, and them lessees were owners of different interests in the land described in the writ; the one as absolutely so as the other. But who were the owners of the interest upon which the nuisance was permitted? Evidently those who have the present right of possession, the ownership for the time being, and not those whose right to the occupancy and control of the premises rests in the future, and has no present existence. If the nuisance complained of had been caused by a stranger, so as to have given a right of action against him, that action could have been maintained only by the lessees, for it was an injury to their interests alone. The lessees, then, are the sole owners of the property in relation to the nuisance, and the inference would seem to be inevitable, that in a case like the present, the statute has reference to them alone.
This view is very much strengthened by other words in the section referred to. The same persons, who are liable to pay the expense of removal, are also liable to a penalty not exceeding one hundred dollars. This liability accrues only after notice and “neglect or unreasonable delay ” in removing the nuisance; in other words, only after a wrong has been done, a duty omitted. How can that be a duty which the party has no legal right to do. Though these defendants, in them leases, reserved a right of entry
Our conclusion is, that the action cannot bo maintained.,
