Francis H. (Francis Hermann) Bohlen.

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the flagging and grating and the carriage-way, on the same level with
the flagging and grating over the areas. Between it and the flagging
and grating there was a narrow strip of gravel. The end houses of
the row had no flagging and grating ; and the space over their areas
was enclosed. The road on the causeway was a common highway,
to be repaired by the parish.

In the course of time, before the General Highway Act of 5 & 6
W. 4, c. 50, the flagging and grating had been dedicated to the pub-
lic and used by them as part of the highway for foot-passengers ; and
it so continued up to the time of the accident.

The fee-simple of the houses was in Lord Salisbury. The de-
fendant was tenant under him for a term of years created in 1830,
and assigned to the defendant before and vested in him at the time
of the accident. Whilst he was in possession, the flagging and grat-
ing either became or at least were out of repair and insufficient,
whether considered as a passage to the houses or as part of a public
way, having regard to the tendency of persons to collect in crowds
in or near such ways upon the occasion of a fire or the like.

It did not appear that any substructure was out of repair, but
only that the flagging and gratings forming the surface were out of
repair. It became necessary, in order to eft'ectually sustain the flag-
ging and grating as a way, in the state to which time and wear and
tear had reduced them, to make an entirely new work, viz. to turn
an arch under them, and so to make them safe. The defendant had
notice of this from the parish in 1859, some time before the acci-
dent, whilst he was in possession : but no repairs were done between
that time and the time of the accident.

The defendant afterwards underlet to two persons named JefTs,
who again underlet to a person who let the rooms out to lodgers.
The rent due from the lessees fell into arrear, and a distress was
put in upon the lodgers, who having paid their own rent, barred out
the bailifif, who had gone out for refreshment. The bailiff proceeded
to regain possession by force, and a crowd collected and stood thick
upon one of the gratings. The deceased was passing by at the time,
and being beckoned to by one of the lodgers, he tried to get through
the crowd to the door, and in doing so stepped on to the grating.
Scarcely had he set foot upon it when the grating and the flagging
resting upon the house wall, and a portion of that resting upon the
retaining wall of the causeway, gave way, and the deceased fell, with
about thirty others, down into the area, and so met his death.

The fall of the flagging and grating was caused by their insuffi-
ciency and by the extraordinary crowd pressing upon them at the
time.

The cause was tried at the sittings after last Michaelmas Term.
There was conflicting evidence upon the question of repairs and
sufficiencv : but the above must be taken to be the result of the



370 ROBBINS V. JONES

evidence, as established by the verdict. Under the direction of the
judge, a verdict was found for the plaintiff, for 280/. damages, sub-
ject to the opinion of the court as to the defendant's liability. No
question was raised upon the pleadings ; nor could any usefully have
been raised, as the court has pow-er to amend : and the question has
been treated as arising upon the general issue. Probably it arises
also upon the record.

A rule was obtained to enter the verdict for the defendant, or a
nonsuit, which was well argued in last Easter Term before my
Brothers Willes, Byles, and Keating, and myself, when we took time
to consider of our judgment.

It is for the plaintiff to make out that the defendant has been
guilty of the breach of some duty which he owed to the deceased,
and that therebv the accident was occasioned. Whether he has done
so, may be considered under the following heads : —

1. If the passage over the area be considered as a private way
to the houses, then the reversioner is not liable, but the occupier. A
landlord who lets a house in a dangerous state is not liable to the
tenant's customers or guests for accidents happening during the
term ; for, fraud apart, there is no law against letting a tumble-down
house; and the tenant's remedy is upon his contract, if any. In this
case there was none, — not that that circumstance makes any differ-
ence in our opinion.

2. If it be considered as a public way, then the defendant is not
answerable for the area as for a hole made at the side of the high-
way, because there was no hole made by the defendant. The gulf
at the side of the causeway was the result of its being raised by the
makers of it, not by the land at the side being excavated by the pro-
prietor of it. The alleged hole was coeval with the highway, and a
consequence of the making thereof. In Barnes v. Ward, 9 C. B.
392, there was a hole made by the defendant, and it was made after
the dedication of the road.

3. As for the suggested liability to repair, upon the ground that
the construction was beneficial to the proprietor of the houses, that
benefit was only retained by, not conferred upon him. It is familiar
law, that a bridge made by a private individual for his own benefit at
an ancient ford, if useful to the public, is to be repaired by them, and
not by the builder.^ The liability to repair a highway has not been
made to depend upon the quantum of benefit. If it were so, a man
who drove a flourishing trade in the house ought to pay for the bene-
fit from passers by, but not a musician or the inventor of the calcu-
lating machine.

4. The flagging and grating were not, like a door, under the con-
trol of the occupier, but fixed. They were not worked, used, or
worn out by the proprietor of the houses, otherwise than as one of

' Where, however, a bridge is built not over a natural stream, but over an
artificial waterway or ditch constructed by the defendant for his own private
benefit, the defendant is bound to keep it in repair, Heacock v. Sherman, 14
Wend. 58 (N. Y., 1835) ; Dygert v. Schenck, 23 Wend. 446 (N. Y., 1840). See
however, Maine v. Gorham, 37 Me. 451 (1854), under the Revised Statutes,
c. 25, s. 57, a town is bound to repair a bridge used as part of the highway
constructed by a railroad over its tracks.



ROBBINS t/. JONES 371

the public uses a public highway on the side of wliich his house
stands. The passage of Hglit and air through the grating does not
wear it out any more than the wind wears out the surface of the
road.

5. The more or less artificial character of the flagging and
grating does not make it more or less a way to be repaired by the
parish. Whether it be stone, iron, wood or composition, as it is a
public way, the public are to keep it in repair, and not the person who
dedicated it. Hitherto, the exceptions to the liability of the parish
have been known. They are custom, prescription, tenure, and en-
closure whilst it lasts. Have we authority to add flagging and
grating?

6. The case is not the same as that of an open cellar-flap, which
may be considered as a trap in its nature and essence, unless it be
kept shut. Besides, that is worn out by use for the benefit of the
occupier of the cellar to which it is the door. The present case is
nearer to that of a mine propped up, and a way dedicated upon the
surface. In such a case, will any one venture to suggest that the
owner of the mine and surface, or either of them, must renew the
props when they rot and the road threatens to sink into the mine?

7. This does not fall w^ithin the law as to keeping buildings
adjoining a highway in such a state, by repair or otherwise, as not to
endanger passers by. What was insufficient here, was part of the
highway itself. Such law may apply to the arches of a cellar under
a footway, — though this we conceive to be worthy of argument, and
open to distinctions as to the state of things at the time of the dedi-
cation, and other circumstances. It cannot apply to the footway it-
self. W'e may refer, by way of illustration only, to the case of one
of the squares, where the footway at one side consists of large flags
reaching from the outer wall of the area to the outer wall of the
cellar. There, the upper part of the flags forms the way, and the
lower part of the same flags forms, as we are told, the ceiling of the
cellar. Who is to maintain and repair the flagged way? We appre-
hend, the public, who walk upon it and wear it out, without which
it might last an indefinite time.

It is to be observed, that, in cases of liability under this head,
the building need not be repaired, but only prevented from causing
injury by its fall; which implies that there is a power to remove:
and such power does not exist in this case.

8. It has been suggested, in addition to the grounds relied upon
in argument, that the fact of the flagging and grating concealing
danger, was a special cause of lability. To this we answer. — first,
that the flagging and grating did not prevent the existence of the
deep area from being known to everybody passing, and there was no
fraud, — secondly, that there would have been no danger, if the parish
had properly maintained and repaired the flagging and grating, —
thirdly, that the defendant did not erect, and, as it was a highway,
could not have removed, the structure. Moreover, concealment is
relative ; and every such danger is more or less concealed. If a high-
way is dedicated, with a dangerous obstruction on it, such as would
have been a nuisance if placed upon an ancient way. — for instance, a
flight of steps, or a projecting flap, — no action can be maintained for



3/2 ROBBIXS V. JONES

injury caused thereby, whether by day, when it can be seen, or by
night, when it is visible. In such case, it was held by the Court of
Queen's Bench, in Fisher v. Prowse, 31 Law J., Q. B. 212, 2 Best &
Smith 770, that the public adopting a highway must take it in statu
quo, and that no obligation is imposed upon the dedicator to remove
projections or fill up holes which may be dangerous to passers by.
In that leading case, which explained and overruled several out of
which vague notions of liability have sprung up, my Brother Black-
bum, delivering the judgment of the court, expounded with clear-
ness and force the law applicable to this supposed ground of liability,
as follows: — "But the question still remains, whether an erection or
excavation already existing, and not otherwise unlawful, becomes
unlawful wdien the land on which it exists or to which it is im-
mediately contiguous is dedicated to the public as a way, if the
erection prevents the way from being so convenient and safe as it
otherwise would be ; or whether on the contrary, the dedication must
not be taken to be made to the public, and accepted by them, subject
to the inconveniences or risk arising from the existing state of things.
We think that the latter is the correct view of the law. It is of
course not obligator}' on the owner of land to dedicate the use of
it as a highway to the public. It is equally clear that it is not com-
pulsory on the public to accept the use of a way when offered to
them. If the use of the soil as a way is offered by the owner to the
public under given conditions, and subject to certain reservations,
and the public accept the use under such circumstances, there can be
no injustice in holding them to the terms on which the benefit was
conferred. On the other hand, great injustice and hardship would
o-'ten arise, if. when a public right of way has been acquired under a
given state of circumstances, the owner of the soil should be held
bound to alter that state of circumstances to his own disadvantage
and loss, and to make further concessions to the public altogether
beyond the scope of his original intention. More especially would
this be the case when public rights of way have been acquired by
mere use. For instance, the owner of the bank of a canal or sewer
may, without considering the effect of what he is doing, permit pas-
sengers to pass along until the public have acquired a right of way
there. It is often hard upon him that the public right should have
been thus acquired : it would be doubly so if the consequence was.
that he was bound to fill up or fence off his canal." In this state-
ment of the law we heartily concur. It is in accordance with the
general law as to gifts, which, in the absence of fraud, must be taken
as they are, without redress against the donor in respect of vice ap-
parent or secret, and all expenses in respect of which, for repairs
or otherwise, are to be borne by the donee.

9. This conclusion is also in accordance with the law as to
grants of a right of way or other easement, whether for valuable
consideration or not, to the effect that the grantee and not the grantor
is to maintain and repair the subject of the easement, WMth a cor-
responding duty to do so if by his neglect the grantor may suffer
damage, and a corresponding right to enter upon the grantor's land
and to do all acts necessary for such maintenance and repair.



MINTZER V. HOGG Z/^

The authnritics to this effect in our own law, the Civil law, and
the Code Civil, will be found in Gale on Easements, edition by Mr.
Willes, 424 et seq.

It thus appears to us, that, to hold this action to be maintainable,
whilst it would for the first time impose a heavy burthen upon rever-
sioners, would violate well-established principles of law.

The rule to enter a nonsuit must therefore be made absolute.

Rule absolute.^



MINTZER V. HOGG. rJ^^'^^^

Supreme Court of Pcnnsyh'ania, 1899. 192 Pa. 137.
Sterrett, C. ]} The question of defendants' neglect of duty,
in not keeping the pavement in front of their "house in such order
and condition as to permit persons traveling over and along said
pavement. .... to do so safely, etc., was fairly submitted to the
jury with instructions so full and adequate that no just exception
can be taken thereto.

The subject of complaint in the first specification is that "the
court erred in entering judgment in favor of the plaintiff, inasmuch
as her statement .... sets forth no cause of action, but purports
to be a breach of duty in failing to keep a part of the highway in re-
pair; whereas there is no duty in law incumbent on defendants or
any of them to keep the highway in repair."

If this is intended to apply to the sidewalk on which plaintiff was
injured, it is not correct as a legal proposition. It is the primary
duty of property owners along a street, to keep in proper repair the
sidewalk in front of their respective properties : Lohr v. Phillipsburg,
156 Pa. 249: Duncan v. Philadelphia, 173 Pa. 554; Pittsburg v. Fay,
8 Pa. Superior Ct. 275 ; Pittsburg v. Daly. 5 Pa. Superior Ct._ 532.
Hence it is that, owing to this primary liability, many cases exist in
this state, in wdiich, after recovery from the municipality, the latter
has successfully recovered over from the property owner on account
of his breach of his primary duty to keep the sidewalk in a safe con-
dition. Among these are Reading v. Reiner, 167 Pa. 41, Brookville
v. Arthurs, 152 Pa. 334. and s. c. 130 Pa. 501. Several statutes in
this state also recogiiize the duty of the property owner to keep his
sidewalk in a safe condition. By Act of :March 25. 1805, 4 Smith's
Laws, 233, sec. 5, councils were authorized by ordinance to compel
propertv owners to pave the footwalk ; and by the Act of April 10,
1826, P. L. 326, sec. 2, it was made the duty of propertv owners to
pave the footway in front of their respective properties, and to
keep the same in repair.

^Accord: Manchester v. Hartford. 30 Conn. it8 (i86t') : Eustace v.
Johns, 38 Gal. 3 (1869"); Jansen v. Atchison. 16 Kan. 358 (iS-e^) ; Flynn v.
Canton Co., 40 Md. 312; Kirh\ v. Boylston Market, 14 Gray, 249 (Mass., 1859) ;
Rochester v. Camf'bell, 123 N. Y. 405 (i8qo) : Hill v. Fond du Lac, 56 Wis.
242 (1882V In IVcller v. McCormick. 47 X. J. L. 397 (1885). it was held that
the abutting owners were under no duty to trim shade trees planted by the
municipality on the sidewalk.

^ Only so much of the opinion is given as relates to the defendant's duty
to repair the sidewalk.



374 HARDCASTLE V. SO. YORKSHIRE RY. & RIVER DUN CO.

To the same effect are the following acts: April i6, 1838, P. L.
626, sec. 3; April 16, 1840, P. L. 412, sec. 9; March 22, 1865, P. L.
562, sec. I.

The averments in plaintiff's statement are quite sufficient to en-
title her to recover, and the evidence tended to sustain all that were
material to her case.

Judgment for plaintiff affirmed.^



HARDCASTLE v. SOUTH YORKSHIRE RAILWAY AND

RIVER DUN COMPANY.

In the Court of Exchequer, 1859. 4 Hurl. & Nor. 67.

Declaration. — That the defendants were possessed of certain
land near to and adjoining a certain [common and public footway,
and also of a certain large reservoir, hole, or dam, then being in and
upon the said land and within a short distance of the said common
and public footway and then containing a large quantity of water;
and the existence of the said reservoir, hole, or dam, so being in
and upon the said land and so adjoining the said] common and
public footway v;as dangerous to any person passing along the foot-
way, either by night or day, even if ordinary caution were employed
by such person ; and it was the duty of the defendants, before, etc.,
to have so sufficiently guarded, fenced off, and railed in the said
land and the reservoir, etc., as to prevent damage or injury to any
person lawfully passing in and along the footway; yet the defend-
ants, while they were so possessed of the said land and also of the
reservoir, wrongfully permitted the said land and also the reservoir
to be wholly unguarded and not fenced off or railed in; that by
means of the premises and for want of proper and sufficient guard-
ing, fencing off, and railing in of the same, the said Thomas Hard-
castle, who was lawfully passing in and along the said footway, lost
his way and missed his path and fell into the reservoir and was
thereby killed, etc.

Pollock, C. B. — This action was tried before my brother Mar-
tin at the last Yorkshire Assizes. The jury found a verdict for the
plaintiff, and the defendants had leave to move to enter a verdict
for them, upon a traverse of an averment in the declaration,^ that
the defendants were bound to fence a reservoir mentioned in it.
The parties had also leave to amend the pleadings, and the plaintiff,
before the argument upon a rule obtained by the defendants to
enter the verdict for them upon the leave reserved, made an amend-
ment. It is immaterial to refer to it, because we think that not
only upon the traverse but upon the facts of the case, as proved
at the trial, the defendants are entitled to our judgment. The plain-
tiff was the widow and administratrix of Thomas Hardcastle, who
was drowned upon the 22d. of May, 1858. The defendants are the
proprietors of a navigation called "The Dun Navigation."

*In Lindstrom v. Penna. Co., 212 Pa. 391 (1905). it was held that a lessor
is not liable unless the sidewalk was defective when transferred to the lessee
or he had, after notice of its bad condition, failed to repair it.



HARDCASTLE V. SO. YORKSHIRE RY. & RIVER DUN CO. 375

Upon the night of the day before mentioned, the intestate left
Rotherhani to walk to Sheffield, but was drowned in the place here-
after described. The action was brought against the defendants
under Lord Campbell's Act. The defendants' predecessors were the
proprietors of the navigation, and about twenty- four years ago they
made a new cut. The cut consisted of a large reservoir out of which
there were two branches, one a canal for the boats to navigate in,
the other a by-wash for the surplus water to fiow away. The divi-
sion l)etween these two branches was a buttress or projecting wall ;
the water for the canal passing on one side, tlie water going through
the by-wash passing on the other. There was an ancient footpath
from Rotherham to Sheffield, which passed along the by-wash, was
continued over it by a bridge and then proceeded to Sheffield. The
bridge was from seven to ten yards from the end of the buttress or
projecting wall, and a pci'Mm who continued to walk straight up the
pathAvay along the by-wash, and who did not turn a little to the
right in order to go over the bridge would, unless prevented by the
arm of a gate to lock upon the canal, get upon a grassy spot, and if
he continued walking on would go over the buttress or projecting
wall into the reservoir. It was assumed upon both sides that the
intestate had walked up the footway along the by-wash, and then
instead of turning to the right and going over the bridge, continued
to walk straight on and went into the reservoir at the end of the
buttress and was drowned. At the trial a statement was made that
the course of the w-ay was altered when the new cut was made, but
no evidence was given of this, nor indeed is the cause of action
alleged in the declaration founded upon it ; and after such a lapse
of time we think it must be taken that the present way is the lawful
one.

The authority relied upon by the plaintiff was Barnes v. Ward,
9 C. B. 392 (E. C. L. R. vol. 67), and with the judgment in that
case we entirely concur. The facts there were, that the defendant
being possessed of land abutting on a public footway excavated an
area in the course of building a house immediately adjoining the
footway and left it unprotected, and a person walking in the night
time fell in and was killed. The Court held that the defendant was
liable. The principle of the decision was that such an excavation
was a public nuisance, and that an individual injury arising from
such a nuisance was the subject-matter of an action to the party
aggrieved.

That apiivate-iiijury arising from a public nuisance is the sub-
S4ect:Jliatter of an action for damages is a doctrine as old a-^ any in
ithe_£Qninion law: and if we were of opinion that the state of the
reservoir in the present case was a nuisance to the footpath, and that
the plaintifif was substantially in the right, notwithstanding that we
thought the form of the declaration was defective, and that there
was no such obligation to fence as therein alleged, we should be de-
sirous to aid Lhe-4?laintiff ; but we are of opinion t hat she has no righ t
of action against the defendants.

When an excavation is made adjoining a public way, so that a
person walking upon it might, by making a false step, or being
affected with sudden giddiness, or, in the case of a horse or carriage-



3/6 HARDCASTLE Z'. SO. YORKSHIRE RV. & RI\ LR DUN CO.

way, might, by the sudden starting of a horse, be thrown into the
excavation, it is reasonable that the person making such excavation
should be liable for the consequences; but when the excavation is
made at some distance from the way, and the person falling into >
would be a trespasser upon the defendant's land before he reached /
it. the case seems to us to be different. We do not see where the
liability is to stop. A man getting off a road on a dark night and
losing his way may wander to any extent, and if the question be
for the jury no one could tell whether he was liable for the conse-
quences of his act upon his own land or not. We think that the
proper and true test of legal liability is, whether the excavation be
substantially adjoining the way, and it would be very dangerous if
it were otherwise, — if in every case it was to be left as a fact to the
jury, whether the excavation were sufficiently near to the highway
to be dangerous.

When a man dedicates a way to the public, there does not seem
any just ground, in reason or good sense, that he should restrict him-
self in the use of his land adjoining, to any extent, further than that
he should not make the use of the way dangerous to the persons
who are upon it and using it; to do so would be derogating from
his grant; but he gives no liberty or license to the persons using
the way to trespass upon his adjoining land, and if they in so doing
come to misfortune, we think they must bear it, and the owner
of the land is not responsible. If fences are to be put up, it would
seem more reasonable that they should be put up by those who use
the way, or those who are under the obligation to repair it, than
by the person who dedicated it to the public, or his successors;
and as we are clearly of opinion that there is no such obligation to
fence, as alleged in the declaration, and also that, upon the above
state of facts, there is no liability, our judgment is in accordance
with the principle of the case of Blyth v. Tophaui, Cro. Jac. 158,