Fow v. Roberts

Mr. Justice Paxson delivered the opinion of the court, March 9th, 1885. It needs but a cursory examination of the evidence in this case to see that the privy well complained of was a nuisance of the most offensive character. It was situated but one foot from the line which divided the property of the plaintiff from that of the defendant, and when filled to a certain point the filthy matter percolated through the wall into plaintiff’s cellar. Indeed, there appears to have been little dispute at the trial below either as to the existence of the nuisance or its character ; the main question was who was liable therefor, the tenant in possession or the landlord who had demised the premises with the privy located as above described. The suit was against the landlord for maintaining the nuisance ; the court below nonsuited the plaintiff upon the ground that the tenant was alone liable. The defendant contended that the well was not per se a nuisance; that when she leased the property to the present tenants in 1879 no complaint had been made of the well, and that it had become a nuisance by the manner of its use by the tenants; that they had allowed it to be used by two or three families, and had neglected to have it cleaned at the proper time. The law upon this subject was correctly stated in the recent case of Knauss v. Brua, decided at the last term in the Middle District, (11 Out. 85) where it was said by our brother Gordon: “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 effect 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 thé premises are so constructed, or in such a condition, 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.” [492] Applying this principle to the case in hand, it is too clear for argument that the tenant would be responsible to the plaintiff for the flow of the offensive matter upon the premises of the latter. He is responsible for the reason that the act complained of is Ms. The filth was deposited there byMmself, Ms family, or by others whom he permitted to use the jnivy. Is the landlord also liable? We are not considering any question of liability for repairs as between landlord and tenant. It does not arise necessarily in the case. But if the landlord constructed or maintained this privy in such a position as regards Ms neighbor’s property that its use would result in a nuisance to the latter, and demised it to a tenant, we are of opinion that he is responsible for the consequences of its use. The privy, as before stated, was witMn one foot of the plaintiff’s cellar wall. A property owner who so locates a privy or-, his premises ought to know that it may and probably will become a nuisance. To build a cesspool now within two feet of the line of any adjoining lot would be a violation of a city ordinance; and it is a violation of said ordinance to maintain a cesspool witMn said limits. The reason for this wise municipal regulation undoubtedly is that cesspools so constructed are nuisances, and endanger not only the comfort but the health of citizens. The defendant having demised the premises in question to a tenant with a cesspool so situated thereon that its use must necessarily result in a nuisance to the plaintiff, we are of opinion that she is liable to the plaintiff. It was urged, however, that it was only for the manner of its use that the well became a nuisance. We fail to see the force of this reasoning. The cesspool was used for the very purpose for which it was constructed, and the tenant had the right to so use it. We cannot measure the extent to wMch a cesspool may be lawfully used. Its lawful use in this case resulted in a nuisance to the plaintiff ; the defendant demised the premises with the cesspool so located that it would naturally produce such a result, and for tins result we must hold her to be liable. The judgment is _ reversed and a procedendo awarded.