Fleischner v. Citizens' Investment Co.
35 P. 174
Or.
1893
Check Treatment

Opinion by

Mr. Justice Moore.

1. Thе appellant contends that the execution of the 1 lease on December fourteenth, eighteen hundred and ninety-one, was not a reletting of the premises, and that it *126is not liable for any of the damages sustained by plaintiff. The authorities are uniform in hоlding that a landlord out of possession is not responsible for a nuisance occurring after the execution of the lease, unless he is in some manner at fault for its creation or continuance: Wolf v. Kilpatrick, 101 N. Y. 146, 54 Am. Rep. 672, 4 N. E. 188. When the landlord has not covenanted to keeр the premises in repair, the duty is imposed upon the tenant, under the implied covenants of the lease, to so use the property as to avoid the necessity for repairs: Powell v. Dayton R. R. Co. 16 Or. 33, 8 Am. St. Rep. 25, 16 Pac. 863; and in such cases, if the property was in good condition at the time of the demise, and leased for a purpose that would not create a nuisance, the tenant, and not the landlord, is liable to third persons for injury from the creation or maintenance of any nuisance upon the leased premises: Fisher v. Thirkell, 21 Mich. 1, 4 Am. Rep. 422. The reasоn for this rule is put upon the theory that the lease gives to the tenant the exclusive possession of the premises, and thereby excludes the landlord’s right of entry; and, his right of entry and possession being suspended during the term, it follows that his liabilities in respect to the possession are also suspended, except as to such defects in the premises at the time of the demise as might in the manner of their use produce injury to third persons. The general rule of law is that the tenant, and ‍‌‌‌​‌​​‌‌‌​‌‌‌‌​​‌​​​‌​​‌‌​​‌‌​‌​‌​‌‌‌‌​‌‌​‌​​‌‌‍not the owner, is responsible for injuries received in consequence of a failure to keep the premises in repair. To this general rule the authorities recognize these exceptions: (1) When the landlord has, by an express agreement between the tenant and himself, agreed to kеep the premises in repair, so that in case of a recovery against the tenant he would have his remedy over against the landlord. Then, to avoid circuity of action, the party injured by the defeat and want of repair may have his action in *127thе first instance against tlie landlord. (2) "When the premises are let with a nuisance upon them, by means of which the injury complained of is received. (3) Where a landlord rents premises for a purpose which in the very nature of things would become a public nuisanсe: Manufacturing Co. v. Lindsay, 10 Ill. App. 583; Wood, Nuisances, § 73.

2. The lease from John Donnerberg to Richard Clinton and wife, under which the tenants claimed possession until the execution of the new one, contained an express covenant that the lessees would keep the buildings in repair. The evidence shows that the premises were in good repair when Clinton went into possession, and also in good repair at the time the deed from Donnerberg and wife was executed and delivered to the Citizens’ Real Estate & Investment Company; that the use for a theatrе was a lawful one and would not in its nature cause the place to become a public nuisance; but that thereafter the assignee of the lease, without the consent, and against the protest, of the owner, sublet the premises to Chinese tenаnts, who created the nuisance that caused the injury. Under this state of facts, if no new lease had been executed, it is clear by all the authorities the company would not have been liable for any injury arising from a use of the property by the tenants. Thе iease from Donnerberg to Clinton contained a provision that the lessees, at their option, might have the privilege of continuing in possession of the premises for two years after the expiration of the first term, upon the payment of three hundrеd dollars per month. This was a covenant that passed with the land, (Wood, Landlord & Tenant, 666,) and upon the exercise of the option, and performance of the conditions precedent by the lessees, a court of equity would have decreed a specific performance of the covenant by the lessor, (Id. 27,) and this option, when *128exercised, created a valid lease for five years, and such additional ‍‌‌‌​‌​​‌‌‌​‌‌‌‌​​‌​​​‌​​‌‌​​‌‌​‌​‌​‌‌‌‌​‌‌​‌​​‌‌‍term is not a new demise, but a continuation of the old one, (Id. 675,) and hence the term did not expire on the first day of October, eighteen hundred and ninety-one, nor until two years thereafter. On December fourteenth, eighteen hundred and ninety-one, after the Citizens’ Real Estate & Investment Company had failed in the state and federal courts to gain possession оf the premises, and realizing that it would probably be impossible to do so before the term had expired, it compromised with the lessees, and executed a new lease by which the tenants were permitted to continue in possession until December thirty-first, eighteen hundred and ninety-two, upon the payment of four hundred dollars per month. By the terms of this lease the lessees paid the owner thirteen hundred dollars more than the first agreement required, and the term was shortened ten months. This was taking a new lease, the legal effect of which was the surrender of the old one: Taylor, Landlord & Tenant, § 340.

3. Upon the surrender of the old lease, the company was invested with the right of entry, and as the nuisance was in existence upon the premises, it must be presumed to have been aware of the fact, and hence it is liable for its continuance under the exception to the general rule that it had demised premises with a nuisance then in existence thereon. The law is well settled that if the tenant creates a nuisance upon the рremises during the term, by an unusual or extraordinary use thereof, although the landlord cannot be made chargeable for the consequences in the first instance, yet, if he subsequently renews the lease with the nuisance thereon, he becomes chargeable for its continuance: Roswell v. Prior, 2 Salk. 460; Whalan v. Glouchester, 4 Hun, 24.

4. Section 333, Hill’s Code, substantially provides *129that any person whose property is affected hy a private nuisance may maintain an action at law for damages therefor, and if judgment be given for the plaintiff in such action, he may, in addition to the execution to enforce the same, on motion, have an order allowing a warrant to issue to the sheriff to abate such nuisance; and if it appear that such remedy is inadequate, the plaintiff may proceed in equity to have the defendant enjoined. From this the аppellant contends that the statute furnishes a complete and adequate remedy at law, and for that reason a court of equity could acquire no jurisdiction, except as auxiliary in aid of the legal action. Section 380 of said Code furthеr provides, that “the enforcement or protection of a private right, or the prevention of, or redress for, an injury thereto, shall be obtained by a suit in equity in all cases where there is not a plain, adequate, and complete remedy at law; and may be obtained thereby in all cases where courts of equity have been used to exercise concurrent jurisdiction with courts of law, unless otherwise specially provided in this chapter.” The chapter containing this section nowhere provides that courts of equity shall not entertain jurisdiction to enjoin a nuisance, and this court has, upon the theory that “ courts of equity have been used to exercise concurrent jurisdiction with courts of law ” in such cases, fully established the rule that when a persоn has sustained irreparable injury, or will be compelled to bring a multiplicity of actions to recover the damage, he may invoke the aid of a court of equity, and obtain an injunction to prevent the continuance of a private nuisance: Parrish v. Stephens, 1 Or. 73; Luhrs v. Sturtevant, 10 Or. 170; Walts v. Foster, 12 Or. 247, 17 Pac. Rep. 24; Esson v. Wattier, 25 Or. 7, 34 Pac. 756. Cоurts of equity, tiien, have concurrent jurisdiction with courts of ‍‌‌‌​‌​​‌‌‌​‌‌‌‌​​‌​​​‌​​‌‌​​‌‌​‌​‌​‌‌‌‌​‌‌​‌​​‌‌‍law in certain cases to prevent the maintenance or continuance of a *130nuisance. It should be invoked, however, only where the injury complained of is irreparable, such as the destruction of property, or when it menaces the life or health of .the plaintiff or of his family, or where the guilty party is not able to respond in damages for the injury. But when compensation for the injury caused by a private nuisance is the gist of the complaint, thе remedy is by action at law for the damages. In the case at bar it.is alleged that the water, slops, filth, and other matter from the sinks, closets, and urinals penetrated the plaintiff’s cellar wall, and caused noxious and offensive pools to form in the cellar, and a slimy substance to gather along the walls, thereby tainting and corrupting the premises, and rendering them unfit for occupation. This allegation is fully supported by the evidence, and was sufficient to warrant the court in granting the injunction.

5. The court, then, having jurisdictiоn of the cause for the purpose of granting the injunction, could it, in view of section 17 of article I. of the constitution, which provides that, “In all civil cases the right of trial by jury shall remain inviolate,” award damages for injury resulting from the nuisance? The English rule was that the court of chancery having jurisdiction for the purpose of granting the injunction, will prevent the circuity and expense of two trials, one in equity for an injunction and one at law for damages, and although it cannot decree damages for the plaintiff’s loss, it will substitutе an account of the defendant’s profits: Adams, Eq. 219; and that this rule applied to cases of nuisance: Id. 208. This rule probably proceeds upon the theory that the tort may be waived, the defendant treated as an involuntary trustee for plaintiff’s benefit, and rеquired to account for the profits he has made out of the maintenance of the nuisance; and yet there must be many *131cases in which no profit has been realized by the defendant, and for that reason the plaintiff would be without remedy in equity. The better rulе, though it is not universal, seems to be embraced in the doctrine that if a court of equity acquires either exclusive or concurrent jurisdiction it may go on to complete adjudication, and establish purely legal rights, and grant legal remedies, which would otherwisе be beyond the scope of its authority: Pomeroy, Equity Jurisprudence, § 181. This principle has been applied to cases in which a court of equity had obtained jurisdiction for the purpose of granting an injunction to restrain a private nuisance, and, having obtained jurisdiction for the purpose of awarding the special relief, the court retained the cause, and decreed full and final relief, including damages and abatement of whatever caused the nuisance: Id. § 237. “As an incident to the relief by injunction, сourts of equity will in proper cases consider and settle the question of damages; but no ‍‌‌‌​‌​​‌‌‌​‌‌‌‌​​‌​​​‌​​‌‌​​‌‌​‌​‌​‌‌‌‌​‌‌​‌​​‌‌‍bill will be entertained merely for the purpose of settling damages, that being regarded as the proper practice of the courts at law ”: Bassett v. Salisbury Mfg. Co. 43. N. H. 249. “A court of equity,” sаys Orton, J., in a suit to abate a nuisance, “having otherwise jurisdiction of the case, can award the damages as well as a court of law”: Brickner Woolen Mills Co. v. Henry et al. 73 Wis. 229, 40 N. W. 809.

Courts of equity in this state, prior to the adoption of the constitution, had exercised concurrent jurisdiction with courts of law in cases of private nuisance: Parrish v. Stevens, 1 Or. 73. In Tribou v. Strowbridge, 7 Or. 156, Boise, J., interpreting this section 17 of article I. of the constitution, said: “This language of the constitution indicates that the right of trial by jury shall continue to all suitors in courts in all cases in which it was Recured to them by the laws and prаctices of the courts at *132the time of the adoption of the constitution,” and held that as the practice prior to the adoption permitted a court of law to refer long accounts for computation, the right to do so continued, notwithstanding the prohibition of the constitution. In Phipps v. Kelly, 12 Or. 213, 6 Pac. Rep. 707, it was held that where a court of equity originally had jurisdiction of any class of cases for which the proceedings at common law did not then afford an adequate remedy, such jurisdiction will not be lost by reason of subsequent legislation conferring jurisdiction on a court of law to decide such cases, unless there are negative words excluding the jurisdiction of equity. It is true that there was a complete remedy at common law in cases of private nuisance prior tо the adoption of section 333 of Hill’s Code, but since that section has no words ‍‌‌‌​‌​​‌‌‌​‌‌‌‌​​‌​​​‌​​‌‌​​‌‌​‌​‌​‌‌‌‌​‌‌​‌​​‌‌‍negativing the jurisdiction of equity, and as in certain cases equity had jurisdiction to enjoin a private nuisance prior to the adoption of the constitution, it follows that the cоurt had authority to render judgment for the damages as an incident to the suit for an injunction. The appellant, then, is liable in damages for some amount, and as this is difficult of ascertainment, and, as no positive rule can be established as a measure, we see no error in the court’s allowance of the amount awarded, and for that reason the decree is affirmed.

Aeetrmed.