Harris v. Cohen

Campbell, J. Harris sued Mrs. Cohen for a nuisance created by allowing water to escape from her adjacent lot upon his, to the detriment of his cellar, into which it ran in considerable quantities through the soil. The water was partly from a leak in the fresh-water supply pipe, which broke and needed repairs, and partly from the waste-water pipe connecting with the drain, which also leaked and overflowed upon the same premises. The bottom of the plaintiff’s cellar was kept more or less covered with water, and the walls and wooden flooring were damaged. The case was not allowed to go to the jury, on the ground that the defendant was not personally in possession, and that she was not liable, as the case stood, for the neglect of her tenant. The whole mischief originated during such tenant’s occupancy. It is now claimed that the tenancy was of such a nature [326] as to make it her duty to make repairs on the premises, and that it might be treated as her default. ' There was no obligation averred or shown, making defendant responsible to her tenant for repairs, or in any way referring to repairs. In the absence of such a duty, the responsibility must usually rest on the tenant, and such has been our holding in Fisher v. Thirkell 21 Mich. 1 and Clark v. Babcook 23 Mich. 163. The present case does not rest on any averment or claim appearing on the record that the premises were in bad condition when leased, and we need not consider what are the qualifications arising from such a state of things. The declaration very explicitly connects all the grievances with the possession of defendant by her tenant. It contains nothing to take the case out of the ordinary rules of tenancy. We are bound to assume that this was the theory on which the case was tried. The only charge requested of the court, after the intimation of opinion on the defendant’s responsibility had been given, left out of view entirely any question which might have arisen out of what is in this Court claimed to be a new leasing, and asked relief upon the ground of general liability on the part of the lessor. Without, therefore, considering points which we ■ think do not arise, we must affirm the judgment with costs. The other Justices concurred.