Francis H. (Francis Hermann) Bohlen.

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44 N. H. .143 (1862), p. 156, seinbie; East Jersey Water v. Bigelow, 60 N. J.

L. 201 (1897), p. 204, scmblc. See also Ripley, C. J., in Laiiill v. Eastman,

18 Minn. 324 (1872), p. 330.

Contra: Blunt v. Aiken, 15 Wend. 522 (N. Y., 1836) ; however in Wag-
goner V. Jcrmainc, 3 Denio. 306 (N. Y., 1846), p. 311, it is said that Blunt v.
Aiken only apphes where there is no covenant of warranty or agreement to
uphold the grantee in the occupation of the premises — (^accord, E. Jersey
Water Co. v. Bigelow, 60 N. J. L. 201 (1897), a water company had con-
veyed its works to a city expressly reserving the right to maintain the
offending dam and to receive all surplus water after the city's needs were
satisfied ; where the continuance of the nuisance is expressly provided for
no question can arise of continuing liability, p. 205), and in C'ouhoeton Stone
Road y. R. R., 51 N. Y. 573 (1873), Lott, Ch. C, holds that Waggoner v.
Jennaine "decides expressly that such original wrongdoer, notwithstanding
alienation, remains liable."

So one creating a nuisance upon the land of a stranger is liable for its
continuance though he has no power to abate it — Smith v. Elliott, 9 Barr.
345 (Pa., 1848) ; though of course he can not be judicially ordered to abate
\\.— Mayer v. Rural Sanitary Authority, L. R. i, Ex. D. 344 (1876).



454 PALMORE v. MORRIS, TASKER & CO.



PALMORE V. MORRIS, TASKER & CO.
Supreme Court of Pennsylvania, 1897. 182 Pa. 82.

Mr. Justice Dean :

On May 11, 1895, the plaintiff, a boy about ten years old, was
standing on the pavement on the north side of Morris street, Phila-
delphia, looking through a partially opened gate into the large
foundry works, before that time carried on at that place by Mor-
ris, Tasker & Company, defendants. While so standing the gate
fell and seriously injured him. On that day, the works no longer
belonged to Morris, Tasker & Company. The accident occurred on
Saturday; on Friday, the day previous, they had conveyed the prop-
erty by deed to George Lodge, and the deed had been put on record
the same day. * * *

There was evidence sufficient to warrant the jur}' in finding the
gate was out of repair, and that there was negligence on part of him
whose duty it was to repair ; but the question on which the case
must turn is, were defendants answerable for this neglect, after
delivery of the deed, and possession vmder it taken by Lodge?

At the trial, among many written points, defendants' counsel
asked the court to instruct the jury as follows: "2. If ^Morris,
Tasker & Co.'s title had been divested and possession surrendered
before the accident, the plaintiff cannot recover against them. An-
wer: I decline that point."

The view the learned judge of the court below took of the law
applicable to the facts is best shown by the following excerpt from
the general charge :

"The question, however, is not one of the exact time of the
transfer, nor one of the delivery of possession. The real question
is as to whether or not there was a failure of duty upon the part of
the defendants, and whether that failure of duty was the cause of
this accident. No doubt, as soon as Mr. Lodge took possession of
this property, then a duty would begin with him. He ought within
a reasonable time to see that the property which he had purchased,
if it was in a dangerous condition to the public, was put in repair,
but with that question we have nothing to do in this case. The real
question in the case is not as to when there was a transfer of the
title, but was there any act of commission or of omission upon the
part of the defendants which amounted to that want of reasonable
care which the law makes negligence, and whether you find that to be
the fact."

Under fuller instructions in accord with this view, the jury
found for plaintiff, and we have this appeal by defendants, assigning
for error, among others, the refusal of the court to affirm their
second point.

It is clear from plaintiff's own testimony that the title and con-
structive possession of the real estate vested in Lodge, absolutely,
on the loth of May, the day before the accident. It is also clear
that in pursuance of the grant by deed he attempted to take formal
possession within an hour after deliver}^ ; and while the oral stipu-
lation between him and the grantors was that actual possession was



PALMOKK X'. MORRIS, TASKKR & CO. 455

-lot to be taken until the following Monday, nevertheless, there is
evidence that die took possession on Friday, and did not restore it to
defendants, who assented to his action, stipulating only for the right
of entry and exit for removal of the property which did not pass by
the deed. Under the facts, then, unquestionably Lodge acciuired
title, and in fact took possession of the real estate on wdiich was a
defective structure, the day before an accident resulted from neglect
to repair it.^

The authorities on the exact question are very meager. As
between a landlord and tenant at will, or for a term, the weight of
authority is, that the landlord continues answerable, though out of
possession, for injuries resulting to third parties from negligently
constructed buildings and structures on the land where they were
erected by the landlord. The very letting by him of to him known
defective' property, without stipulation for repair, is significant of
continuous negligence on his part: Godley v. Hagerty, 20 Pa. 387,
and the cases following it down to McKenna v. Paper Co., 176 Pa.
306. But this is not a letting of the land by a landlord to a tenant;
it is an absolute sale, whereby the owner divests himself of title and
all right to possession, or of re-entry for repairs, or for any other
purpose ; anv future possession in face of his deed, unless there be
an independent stipulation to the contrary, would be a palpable tres-
pass ; and with his surrender of possession, all the duties incident to
ownership, as to him. were at an end ; from the moment Lodge took
possession under his deed, the duties theretofore incumbent on Mor-
ris. Tasker & Company were transferred to him. and he became
answerable to the public for neglect in their performance.

The learned judge of the court below adopts a different event
for the commencement of liability on the part of the grantee than
possession taken under the deed ; he says "he ought, within reason-
able time, to see that the property which he had purchased, if it
was in dangerous condition to the public, was put in repair." That
is, he imports into the deed an implied covenant on part of the
grantors that they will be answerable to third parties for defects in
the building for a reasonable time after the grantee takes possession.
Public policy does not demand that such clogs on the transfer of real
estate should be imposed by construction ; nor does the law warrant
such an implication. Before he purchased the real estate the law
presumes the grantee examined the property, and was cognizant of
its situation, surroundings, the character of the structures upon it
and their condition of repair. Without an express covenant by the
grantors, as between them and the grantee, there was no duty on
the grantors to repair; the purchaser, thereafter, assumed that duty, *
because he then became the owner and occupant. If the grantors
after possession by Lodge, the grantee, owed no duty to him. why
should there be neglect in performance on their part as to the public?
It is not even the case of no actual occupancy, where the law casts



*The detailed statement of the evidence as to the conduct of the various
parties concerned and of the correspondence between tlie defendant and its
grantee, Lodge, set forth at length in the opinion is omitted, its substantial
effect being adequately stated in the above paragraph.



456 ROSEWELL Z\ PRIOR

the duty on the owner, but one where the owner and actual occupant
were the same.

If, the accident did not happen during the ownership and oc-
cupancy of ]\Iorris, Tasker & Company, and the evidence showed
that it happened after Lodge took possession, the question for the
jury was not whether there was neghgence on part of the defendants
in maintaining a defective gate; the real question on the evidence
was, did Lodge take possession of the property described in his deed
on Friday the loth of May? If he did, then the accident which oc-
cured on the nth must be imputed to the negligence of the owner
and occupant of the premises, and not to Morris, Tasker & Company
who before that time were owners and occupants. And this is the
principle announced in Grier v. Sampson, 27 Pa. 183, Cheetham v.
Hampton. 4 T. R. 318, and Blunt v. Aikin, 15 Wendell. 522, although
the facts in all these cases are difterent from those before us. And
while laying down this rule in this case, we do not intend to be under-
stood as declaring there can be no exception to it. There may be a
case where the grantor conceals from the grantee a defect in a struc-
ture known to him alone, and not discoverable by careful inspec-
tion, that the owner would be held liable, though out of possession;
but that is not this case ; the rotten gate, the testimony shows, was as
obvious before the accident as afterwards, and the reasonable time
for the purchaser to discover it was not limited to the twenty hours
after he took possession, but to the weeks and months pending the
negotiations, before the delivery of the deed.

On the undisputed evidence the jury should have been instructed
to find for defendants.

The judgment is reversed.



SECTION 2.— Lessors.



ROSEWELL V. PRIOR.

Court of King's Bench, 1701. 2 Salkeld, 460.

In an action upon the case, for that the plaintiii' being seised of
an ancient house and lights, the defendant had erected, &c., whereby
they were stopped. There was a former recovery for this erection,
and this action was for the continuance ; and the case was, tenant
for years erected a nuisance, and afterwards made an under-lease
to F. S. The question was, whether, after a recovery against the
first tenant for years for the erection, an action would lie against
him for the continuance after he had made an under-lease? Et per
Cur. It lies ; for he transferred it with the original wrong, and his
demise affirms the continuance of it : Fle hath also rent as a con-
sideration for the continuance, and therefore ought to answer the
damage it occasions. Vide Jones 272. Receipt of rent is upholding.
2 Cro. 372, 555. The action lies against either at the plaintifif's
election.^



^The landlord is liable where the premises -when demised are from their
bad repair or faulty construction in themselves a nuisance. Ozvings v. Jones,



ROSKWF.Lr. T'. PRIOR



457



9 Md. io8 (1856), defective covering over opening into vault dug below side-
walk; Fisher v. 'I'hirkcll, 21 Mich, i (1870), similar facts; Isham v. BrodericK,
<ig Minn. 397 (1903), defective pipe carrying off water from roof. Also where
the premises when leased arc in such condition that their use by the tenant
for the purposes for which they are leased must necessarily create a nuisance.
Kiiauss V. Brua, 107 Pa. 85 (1884), defective cesspool; Fozv v. Roberts, 108
Pa. 489 (1885), similar facts, both landlord and tenant liable; Brown v. H'liite,
202 Pa. 297 (1902), drainage pipes so constructed that tenant's waste water
flowed upon sidewalk and froze; rngurrson V. Rankin, 47 X. J. L. 18 (1885),
defective pipes supplying tenant with water; Pickard v. Collins, 23 Barb. 444
(N. Y., 1856), barn so built that t'llih from cattle in it escapes upon adjacent
land. So the landlord is liable if the lease contemplates and provides for a
use of his land by his tenant wliich necessarily involves the creation of a
nuisance, though the premises as such are in good physical condition. Harris
v. James, 45 L. J. (Q. B.) 545 (1876), landlord held liable for injuries caused
by smoke from limekilns erected and operated by his tenant upon land leased
as a lime quarry and also for injuries caused by blasting if the lease sanc-
tioned and contemplated it as a mode of quarrying: Helwig v. Jordan. 53 Ind.
21 (1876) ; I'ish V. Dodge, 4 Dcnio, 311 (N. Y., 1847), similar facts; Terminal
Co. V. Jacobs, 109 Tenn. yjj (1902), smoke caused by lessee railroad's use of
demised "round house".

The landlord is not liable for nuisances created by some peculiar use of
the premises by the tenant not expressly sanctioned in the lease or necessary
to the enjoyment of the demised premises. Met. Savings Bank v. Manion,
S~ j\Id. 68 (1898), stench escaping through windows left open in livery stable;
Fehlhaner y. St. Louis, 178 Mo. 635 (1903), cellardoors left open while prem-
ises were in occupation of the tenant.

A very narrow view of what is a use essential to the enjoyment of prem-
ises leased, as a shop, is taken in Rich. v. Basterficld, 4 C. B. 783 ; 16 L. J.
(C. P.) 273 (1847), where it was held that "it being possible for the tenant
to occupy the premises without making fires and quite optional on his part to
make them or not", the landlord was not liable for the emission of smoke
from a defectively constructed chimney; he having at most enabled the tenant
to make fires if he pleased — Init see Harris v. James, supra, per Blackburn. T..
and note that in fact the previous tenant had by burning coke used the chimney
without causing annoyance.

Where the premises ruinous when leased fall some time later in the
course of nature and through no misuse of them by the lessee, the landlord
is liable though the bad conditions have, by lapse of time and natural causes,
grown worse in the interim — Todd v. Flight, 9 C. B. N. S. S7J ( 1S60) ; and
this though the tenant has expressly covenanted tp keep the premises in
repair, such a covenant does not release the landlord from liability to a
stranger, Iiigzcerson v. Rankin, supra: Stcords v. Edgar, 59 N. Y. 28 ("1874 "> ;
.4hern v. Steele, 115 N. Y. p. 209 (i88q) ; Campbell v. Po'i-tland Suaar Co.. 62
Me. 552 (1873); Contra, Pretty v. Bickmore, L. R. 8 C. P. 401 (1873); in
Czcinnell v. Eager, L. R. 10 C. P. 658 (1875), emphasis is laid on the land-
lord's lack of knowledge of the defect, and see Xelson v. Liverpool Brezcerv.
L. R. 2 C. P. D. 311 (1877). In Leonard v. Storer, 115 Mass. 86 (1874) and
Clifford v. Atlantic Mills Co.. 146 Mass. 47 (1888), it was held that though
a landlord leasing apartments in a house but retaining possession of the roof
etc. was liable for the fall of snow collected upon a steeply slanting roof
thereof— 5/j//'/o' v. Associates, 106 Mass. 194 (1870) — if he had turned over
the entire premises to the tenant he was not liable though such a roof was by
the working of nature sure to become dangerous unless the tenant cleaned it.
The landlord It was held "had a right to rely upon the tenant managing the
premises in such a way", by "removing the snow", as to prevent there being a
nuisance.

The holding over by a tenant after the expiration of his term though with
the consent of the landlord is not a reletting. Candy v. Jubber. =, B. & S. 48;
(1865), 9 B. & S. 15 (1865) ; Fleischner \.^Inz: Co., 25 Oregon 119 (1893^';
but if a new lease is given the landlord is liable for nuisances then existing.
Ingzi'erson v. Rankin, supra: Dalay v. Savage, 145 Mass. 138 (1887).

A lessee who sublets the premises with a nuisance thereon remains liable
for nil harm resulting from it, Timlin v. Standard Oil Co., 126 N. Y. ^14
(1891).



4.58 CHEETIIAM :•. IIAMPSON



CHEETHAM r. HAMPSON.

Court of King's Bench, 1791. 4 Term, 318.

This was an action on the case against the defendant, who was
owner of the fee. for not repairing the fences of a close, whereby the
plaintiff was damaged, &c. At the trial before TJiomson, B. at the
last assizes for Lancaster, it appeared that another person was tenant
in possession under the defendant; whereupon it was objected that
the action did not lie against the present defendant. The learned
Judge would not nonsuit the plaintiff, and a verdict was taken for
him ; but he gave leave to the defendant's counsel to move the Court
to set that verdict aside and to enter a nonsuit, if they should be of
opinion that the objection was well founded. A rule nisi having
been obtained for that purpose last term.

Lord Kexyon^ Ch. J. — It is clear that this action cannot be
supported against the owner of the inheritance, when it is in the
possession of another person. It is so notoriously the duty of the
actual occupier to repair the fences, and so little the duty of the land-
lord, that, without any agreement to that effect, the landlord may
maintain an action against his tenant for not so doing, upon the
ground of the injury done to the inheritance. And deplorable in-
deed would be the situation of landlords, if they were liable to be
harassed with actions for the culpable neglect of their tenants.

Ash HURST, J., declared himself of the same opinion.

Duller, J. — With respect to the case of Rosezvell v. Prior,
which is the only one cited of an action of a similar nature main-
tained against the owner out of possession, it is very distinguishable
from the present ; for there the owner let the premises with the
nuisance complained of, which had been before erected upon them.
That therefore was a misfeazance of which he himself had been
guilty ; and say the Court, his demise affirmed the continuance of
the nuisance, and therefore might be said to be a continuation of it
by himself. And whatever construction the word tcncntcs may bear
in the old entries in real actions, that will not aft'ect the present ques-
tion, which arises on a possessory action on the case against a
zvrong-docr; and the simple question is, whether the landlord can in
any sense be called a wrong-doer, because of the neglect -of his
tenant to repair. The instances of such actions as the present against
owners are where the tenenfcs and occupatorcs were the same; but
the action lies against them only in the latter capacity.

Rule absolute.^



^Accord: Bears v. Ambler, 9 Pa. 193 C1848) ; City of Lowell v. Spaul-
ding, 4 Cush. 277 (Mass., 1849) ; Gridlcy v. Bloomington, 68 111. 47 (1873)-.

But where the landlord covenants to keep the premises in repair, if,
owing to a breach of such covenant, the premises become ruinous during the
term, the landlord is liable to the owner of adjacent property damaged thereby
or to one hurt thereon or while passing upon an adjoining highway — Bears v.
Ambler, supra (semble) ; City of Lozvell v. Spaidding, supra (scmble) ; Grid-
ley V. Bloomington, supra (semble) ; Boyce v. Tallerman. 183 111. 115 (1899) ;
and see May v. Ennis, 78 N. Y. App. Div. 552 (1903): and this either to
avoid the circuity of action as suggested by Heath J., Payne v. Rogers, 2 H.
Blackstone 349 (1794), which would result if the tenant were held liable since



MCKENZII-. 1\ CHIiETHAM 459



McKEXZIE V. CHEETHAM.
Supreme Judicial Court of Maine, 1891. 83 Maine 543.

Virgin, J. Action on the case by a guest of the sole tenant of a
second-story Icncment. occupied as a dwelhng-house, against the
landlord to recover damages for a personal injury caused by the
defective landing of a stairway which was the only means of ingress
and egress to and from the tenement.

The tenancy commenced in October, 1888. On the evening of
January. 10. following, the i)laintitl made a social call on the tenant;
"and when in the act of leaving, he reached the landing it fell and
caused the injury for which damages are sought.

The foundation of the action is alleged negligence on the part
of the defendant: that he did or omitted to do an act in violation of
a legal duty or obligation which he owed the plaintiff and consequent
damages.

In the purchase of real as well as of personal estate, parties
make their own contracts which the law construes and enforces.
When one is negotiating for the lease of a dwelling-house the same
as when bargaining for a personal chattel, it is his privilege to in-
spect and ascertain for himself its actual quality and conditions; and
the parties make such express agreements relating thereto as they
think fit. If the lessee, instead of exacting from the lessor any war-
ranty of its present or future state of repair, elects to rely upon his
own' judgment, the law in the absence of any fraud or concealment
on the part of the lessor, leaves the lessee to the operation of the
maxim caveat emptor and he takes the premises as he finds them for
better or worse. Hill v. Woodman, 14 Maine. 38, 42; Grcgor v.
Cad\, 82 Maine. 131 ; Keates v. Cadogan, 10 C. B. (70 E. C. L.)
591." For the mere letting, without additional stipulations by the
lessor, simply implies that he holds the title and that the lessee shall
quietly enjoy the use and occupation during his tenancy ; and not
that tile premises are or shall be in any particular condition or state
or repair, or that they are suitable for the purpose tor w^hich they
were let. Ardcn v. Pullen, 10 M. & W. 321 ; Sutton v. Temple, 12
M. & W. 52: Hart v. Windsor, 12 M. & W. 68. 85; Libbey v. Tel-
ford, 48 Maine. 316; Gregor v. Cady, supra; Foster v. Peyser, 9
Cush. 242 : Willis v. Castle, 3 Gray, 356 ; Jaffe v. Harteau, 56 N. Y.
398, 401 ; Bozve v. Hunking, 135 Mass. 383; Tuttle v. Gilbert Manf.

he could recover over on his covenant against his landlord, or because the land-
lord having by covenant "reserved the control of the premises to the extent
necessary for making repairs, his duty to the public in relation to the property
is not affected by the lease, and he remains responsil)le. under the doctrine
of the maxim, sic utcre tuo ut alicnum nou lacdns. for defects arising from
the want of repairs during the continuance of the lease", Mcllvaine, J., Bur-
dick v. Chcadlc. 26 Ohio St. 303 ( 1S75) p. 396. and see Henn Collins, M. R.,
Cavalier v. Pope. L. R. 1905, 2 K. B. 757. p. 762. and see also Qunm v. Cnm-
mings, T71 Mass. 255 (1898). a contract between two adjoining owners where-
by the division fence is to be maintained by one only, may be shown to relieve
the other from liability to a stranger injured by its fall. In Ahem v. Steele.
115 N. Y. 203 ( 1880 ■). it was held that a mere right to enter to make repairs
does not make the landlord liable, he must be legally under obligation to the
tenant to make them.



460 MCKENZIE Z'. CPIEETIIAM

Co. 145 Mass. 169, 176. Such is the general rule of law in this
country as between lessor and lessee. If a lessee in this State would
have the result otherwise, he must bring it about by some express
stipulation in the lease, until the rule shall become modified by the
legislature as it was in England, in 1885, by St. 48 & 49, Vict. c. 72;
Walker v. Hohhs, (L. R.) 23 O. B. D. 458.^ It does not apply to
premises over which the lessor retains control, as a common passage-
way by which several tenements are reached. Toole v. Beckett, 67
]\Iaine, 544; Sazvyer v. McGillicudy, 81 ]\Iaine, 318.-

The rule is subject to an exception arising from a duty which
the law, under certain circumstances, imposes upon the lessor because
of the relation subsisting between him and his lessee. For if, at
the time of letting, there is some latent or concealed defect in the
premises, consisting of original structural weakness, decay or in-
fectious disease, which the lessor knows renders their occupation
dangerous and is not known to the lessee or discoverable by his
careful inspection, the law makes it the duty of the lessor to dis-
close it; and a failure to do so is actionable negligence if injury
results. Cozven v. Sunderland, 145 ^Nlass. 363; Bozve v. Hunkiiig,
135 ]\Iass. 380, and cases there cited; Scott v. Simons, 54 N. H. 426,
431; Walden v. Fitch, 70 Pa. St. 460; Edzvards v. A^. Y. & H. R.



^ The act applies only to tenements let "to persons of the working classes"
and creates an impHed condition in the lease that they are, when let, reason-
ably fit for habitation. The tenant's remedy is not confined to a repudiation of
the lease on discovering the bad condition of the premises, he may recover
for injuries received therefrom, though the defective condition was patent
and obvious. Walker v. Hobbs & Co., L. R. 23 Q. B. D. 458 (1889). In
Daley v. Quick, 99 Cal. 179 (1893), a statute imposing an obligation upon
lessors of property intended for human occupation to put it in a condition fit
therefore was held to give the tenant a right of action where the defect is
neither open and patent nor discoverable by the inspection which a lessee is
bound to make of the premises.

By the code of Georgia a landlord is bound not only to lease his premises