98 Mo. 527 | Mo. | 1889
— This was a suit for damages occasioned by filth and foul water escaping from a privy, on the defendant’s lot, to and through the basement wall of plaintiff’s building.
Plaintiff and defendant own separate parcels of ground in the same block in the city of St. Louis, which are separated in the rear by a private alley three feet in width, and which alley is wholly on the land of defendant. Plaintiff erected upon his property a large building, known as Pope’s Theater, in the year 1884. The
The defendant’s property, prior to and during all this time, was in the possession and under the control of a lessee to whom the property had been leased by defendant for a period of five years from September 20, 1881. The lease contains the following covenants : “ All improvements and repairs, including roofs, pavements, plumbing, gas and water pipes and water closets, must be made at the expense of the lessee; and he shall keep the premises free from any nuisance in or adjacent thereto.”
The following stipulation is made a part of the record: “First. That notice of the alleged percolation and filtration of water and filth from the premises of the defendant through the walls and into the building of plaintiff was first given to the defendant on the twenty-fourth day of October, 1885. Second. That prior to said last-mentioned date, defendant had no knowledge of the fact of said percolation and filtration, or of the injury done, or being done, to the premises of the plaintiff. Third. That the injury and damage complained of by plaintiff in his petition were done to said building before said date, and before defendant had any notice or knowledge thereof.”
A notice was served u pon the tenant and he caused the nuisance to be removed with all reasonable dispatch.
There is nothing in this case which calls for the application of any other than these general rules of law, and the question is whether the evidence tends to show that the nuisance existed at. the date of the demise. ‘Mr. Collins, the plumber employed by defendant’s tenant to make new sewer connections, states in positive terms that he found a small six-inch pipe in the alley leading from the vault east to Ninth street; that it was
But be all this as it may, the evidence utterly fails to show the existence of any nuisance at any time prior to September, 1884, three years after defendant leased the property. It is not pretended that any seepage made its appearance during the construction of the plaintiff’s wall. That wall stands within three or four feet of the old vault, and had the vault been out of repair at the time the wall was erected the seepage would have then made its appearance. It is true the vault was an old one, and was liable to get out of repair, but these vaults, water and sewer connections, are just such house attachments as are and must be under the eye of the actual occupant. To hold the defendant liable in this case is simply to hold him liable for a nuisance arising from the want of ordinary repairs, the necessity for which repairs became known for the first time three years after the property had been leased. This we conclude is not the law.
The point is made by the plaintiff that the trial court directed a verdict for defendant solely on the
The judgment is right and it should be and is affirmed.