Knauss v. Brua

Mr. Justice GokdoN delivered the opinion of the court, October 6,1884. We have no special fault to find with the law as held, in this case, in the conrt'below, but its application to the facts as found by the jury does not meet with our approval. We do not doubt but that, in the absence of an agreement to repair, the landlord is not liable to a third party for a nuisance resulting from dilapidation in the leasehold premises whilst in the possession of a tenant. To make the lessor so liable the defect must be one that arises necessarily from a continuance of the use of the property as it was when the tenant took possession of it. But the converse of this proposition is also true; if the premises are so constructed, or in such a condi [89] tion, that the continuance of their use by the tenant must result in a nuisance to a third person, and a nuisance does so result, the landlord is liable. There being then no dispute as to the legal principles which must govern a case of this kind, we need not trouble ourselves with the citation of, or comment on, authorities about which there can be no controversy, but turn rather to the special verdict, in order to ascertain the rectitude of the conclusion of the court below. That verdict was put into the shape of questions and answers, and reads as follows : “ 1888, December 21st, the jury do say that they find in favor of the plaintiff for $200 damages on the first count, and one dollar damages on the second count — together the sum of two hundred and one dollars ($201), and the jury answer the questions submitted to them by the court as follows: (1) Did the nuisance exist at any time between December, 1881, and January 19th, 1882, that is, between the time at which the defendant bargained for the property and the time when he leased it to Blickenderfer ? Answer — Yes. (2) Did it exist between January 19th, 1882, and April 1st, 1882, viz.: between the time when the lease was made and the time when Blickenderfer went into possession? Answer — Yes. (3) Did it exist between April 1st, 1882, and July 1st, 1882, viz: between the time at which Blickenderfer went into possession and the date when suit was brought? Answer — Yes. (4) Was the sewer large enough to carry off the deposits in the privy when not obstructed? You will say from the evidence whether that was so or not. That is a question of fact. Answer — Yes. (5) What caused the nuisance ? Was it defective construction or condition of the sewer, or obstructions in the sewer ? If obstructions, were they put in before March 19th, 1882, between that date and April 1st, 1882, or after that date ? Answer — The condition of the privy pit before it was repaired, and the obstructions in the sewer, which in the opinion of the jury has not sufficient fall to be very efficient. In the opinion of the jury, the obstructions were put in the sewer prior to March l9th, 1882, but at what precise time we cannot determine.” Now, of course, we are held, as was the court below, strictly to the facts as found in the special verdict; our inquiry must be confined to their purport. Is there, then, anything in them which tends to excuse the defendant from the resuLts of the nuisance complained of? It was in existence before Blickenderfer, the lessee, went into possession, and it was not his business, unless for his own convenience, to remove it. Whether he might have called upon his landlord or not to put the sewer into a proper condition for use, is not the [90] question, for that was a matter for themselves, and not one that interested third persons. But that, as to such third persons, the tenant was not obliged to abate a nuisance created by his landlord is a proposition too plain for discussion. If Blickenderfer contributed to the nuisance by a use of the vault and drain, he would no doubt be liable, but that would not relieve Brua from his responsibility to see that his property, before it passed out of his possession, was in such a condition that its use would not be injurious to his neighbor. The jury have found that, not only were there obstructions in the sewer prior to the date of the tenant’s possession, but that there was also such a defect in the construction of it as to render it inefficient for the purpose intended. But for a defect of this kind, which required not repair but reconstruction, even as between the tenant and landlord, the former could not be held; therefore, on all authority, the damages resulting from this default must fall on the latter. Without, however, putting any special stress upon this part of the verdict, we are inclined to think that a lessor cannot, merely by leasing his premises, avoid the consequences of the continuance of a nuisance which before such leasing it was his duty to abate. The judgment of the court below is now reversed, and it is ordered that judgment be entered for the plaintiff for the full amount of the verdict ($201), with costs.