46 A. 181 | R.I. | 1900
The plaintiff sues the owner and tenant of a building for injury sustained by falling into an elevator-well while he was in the building upon the owner's invitation. The owner pleads specially that he had leased the premises, including the elevator, and that he had no control over the same at the time of the accident. The plaintiff demurs to this plea upon the ground that it sets up no justification, because of the invitation alleged in the declaration. The argument of the defendant in support of his plea is that such a special averment is necessary because the declaration alleges that he is the owner of the building. We do not think that this is so. The word "owner" is a general term which, under varying conditions, may include different estates. As applied to real estate it doubtless means,prima facie, one who holds the fee. But it may mean less. The *72
definition of owner of real property, as given in 17 Am. Eng. Ency. L. p. 300, is: "Any person who has the usufruct, control, or occupation of the land, whether his interest in it is an absolute fee or an estate less than a fee." Thus it has been held in Gilligan v. Aldermen,
If a lessee having control may be deemed to be an owner, econverso, one not having control may be deemed not to be an owner. The scope of a word in a given case depends upon the sense in which it is used and the relation of one to the property with reference to the issue raised.
In this case the question is whether, for the purposes of pleading, the defendant can show under the general issue that he was not an owner of the building in question, because he had parted with possession and control of it at the time. We think it is clear that he can do so. The cases above cited show that the word has no conclusive implication beyond that of control. The test of its meaning in a case of this kind is one of possession and control. If the defendant had parted with possession and control of the building for the time being, he can show the fact under the general issue, because it directly rebuts an averment of the declaration. One cannot be an owner, within the meaning of a declaration for negligence, *73
unless he has some active duty with reference to the property such as is pointed out in Joyce v. Martin,
The demurrer to the special plea is sustained.