Pettibone v. Burton

The opinion of the court was delivered by Bennett, J. The question submitted to us upon this bill of exceptions is, whether the present defendants are liable for the wrongful act of Mills Purdy and the administrator of William Purdy, in the erection of the dam in question, in-June, 1844, by reason of which the plaintiff has been damnified. It appears, that the defendants did not in fact take the title to the premises, upon which the dam was erected, until after the erection of the dam. Though the sale by the administrator was in June, 1S43, yet the deed to the defendants was not in point of fact executed until February, 1845. The defendants, the case finds, never had any possession pf the premises, or control over them ; but the dam and the premises remained in the exclusive possession of Mills Purdy, during the summer and autumn of 1844, until December, when he left the possession. The case also finds, that the defendants knew nothing of the erection of the dam, or of the rise of the water occasioned thereby. In January, 1845, the dam was swept away, and was not erected again, until after the defendants had deeded to Betsey Purdy, in the spring of 1845. The plaintiff assumes, in argument, that the title of the defendants has relation back to the time of sale by the administrator; and then infers, that the defendants are personally liable for the wrongful act of Mills Purdy and the administrator, in the erection of the dam complained of. The doctrine of relation has been argued with ability, and a very commendable research; and, as one of the members of this court, I think it may well be maintained, as a general principle, that where there are divers acts concurrent to make a conveyance of an estate, the original act shall be preferred, and to this the other acts shall have relation; though doubtless the rule is so modified, that this relation by fiction is not to have place, where its introduction will prejudice the rights of third persons, who are [308] neither parties or privies to the conveyance. We do not find it necessary to decide, whether, in this particular case, the doctrine of relation is to have place, so as to refer the taking of the deed by the defendants back to the time of the purchase at the administrator’s sale, or not. It is sufficient, for this case, to hold, that if it be so, it does not follow, that the defendants are liable in this action. A third person cannot be liable for the wrongful act of another, unless in fact, or in contemplation of law, he is privy, or in some way consenting to it. The case itself precludes the idea, that the defendants were in any way privy to the wrong complained of, in point of fact, or in any way assenting to it. They had no knowledge, that a wrong had been committed by any one. The question, then, arises, are the defendants privy in law to the wrong committed, by reason of any relation between them and the wrong doers? If the owner of land, upon which a nuisance has already been erected, lets the land to another, an action for its continuance may be brought, either against the landlord, or the tenant. W. & G. on Easements, p. 296. If, however, the nuisance is erected during the tenancy, the landlord is not liable. The case of Cheetham v. Thompson, 4 T. R. 318, establishes this distinction. . The dam was erected by Mills Purdy, in June, 1844, who was then in possession of the premises; and if the relation of landlord and tenant ever existed between him and the defendants, it did then exist. But we think no such tenancy ever existed between them, as to render the defendants liable for the continuance of the dam, although the erection had been prior to the administrator’s sale, and although the deed to the defendants should also have relation back to the time of sale. Mills Purdy never recognized the defendants as his landlords, and never paid them any rent, and they never claimed any of him. Besides, the case finds, that he had the sole and exclusive possession. In the case of Nichols v. Williams, 8 Cow. 13, to which we have been referred to show that a tenancy existed between the defendants and Mills Purdy, the debtor, who remained in the possession after the sheriff’s sale of the premises, in fact paid rent; and it was held, for that reason, that he was tenant at will. All that can be said in this case is, that the defendants, after the sale, permitted Purdy to remain in possession, the latter paying no rent, [309] and the former requiring none to be paid. At most, he could be regarded only quasi tenant at will, and the defendants might at any time have had their action of ejectment against him. 1 Johns. Cas. 153. 1 Johns. 44. We think, then, no such tenancy is established, as, in any event, to constitute the defendants privies in law to the wrongful erection of the dam by Mills Purdy, so as to make them liable for his act. It has been said, that the defendants were liable for the continuance of the dam after the abandonment of the possession by Mills Purdy; but clearly they could not be, without notice of the existence of the nuisance, or a request to abate it. The result is, the judgment of the county court is reversed, and the cause remanded.