In the Common Pleas.-Rich v. Basterfield.

taches only on persons in possession; jured, whether it be managed by his and that the defendant in this case not own immediate servants, or whether being in such possession at the time that conducted by other persons' servants. the nuisance complained of was created, This rule is expressed in all the cases, he could not be made liable; and such except Leslie v. Pounds, (4 Taunt. 946,) is now the opinion of the court. It was and Rex v. Pedley. In the former, the not contended before the judge at Nisi landlord's house was under repair, and Prius, or on the argument, that the chim- he was sued for injury done to a person ney erected by the defendant was itself a by reason of negligence, in leaving a celnuisance, unless used in a manner that lar door open. The house was his, caused the smoke to issue to the preju- though the tenant of it had gone out in dice of the plaintiff in the occupation of order that the repairs might be done; the his own premises. No complaint could landlord took upon himself to order the be made against the landlord; he did repairs; his servants were doing them not let the premises with any existing for him, and left the door open: the landnuisance on them, and if he had, by let- lord was held liable. Lord Mansfield ting the chimney to the tenant with the observed, it was a singular case, and his occupation, such tenant would be liable judgment was founded on the ground for a continuing and upholding of the that, under the circumstances, the landnuisance, as in Rosewell v. Prior; nor did lord was responsible by having been anthe defendant enter into a contract, ex-swerable for the acts of the persons he pressed or implied, with the tenant to employed. Leslie v. Pounds is not theremake a fire in the stove. The latter might fore an authority for the decision of the have done it without subjecting himself present case. Rex v. Pedley very nearly to the complaint of the plaintiff, or might resembles it. That charged, that the dehave made fires in a more convenient mode, as by using coke, or have abstained from making fires at all when the wind was in such a direction as to carry the smoke to the plaintiff's house; and it is quite possible for the defendant to have occupied the shop without making fires, it being optional on his part to make them at all, or to make them in such manner and at such times as not to annoy the plaintiff or to create any kind of smoke to create a nuisance. The case resting not on the erection of the chimney, but the subsequent use of it by the defendant, it is whether he is guilty of a nuisance? Several cases are cited, in which the owners of fixed property have been held liable for the consequences of acts done on it by persons not strictly their servants or agents; but the principle on which those cases proceeded, is clearly laid down by Mr. Justice Littledale in Laughter v. Pointer, (5 B. & C. 547;) which judgment has been much acted on by the Court of Exchequer in Quarman v. Burnett, (6 Mee. & W. 449.) The principle stated by Mr. Justice Littledale is, that, where a plaintiff is in possession of fixed property, he must take care that it is so used and managed that other persons are not in

fendant did erect near certain public streets and dwelling houses, and make two buildings, called necessary-houses, for the common use of divers persons residing in, and frequenting a place called Diamond alley; and did also make and cause to be made a certain open sink for the reception of ordure, &c.; and many persons resorted to it, and that consequently the nuisance arose. On the trial, before Lord Denman, it was proved the defendant was in the receipt of the rents of twelve dwelling-houses which were let for short periods to tenants, and that two necessary-houses and a sink belonging to them were used in common by the persons occupying the dwelling-houses. It did not appear whether any of the present tenants commenced occupying the dwelling-houses before the defendant began to receive the rents, but the necessary-houses and sink were constructed, and used by the tenants of those premises before his time. There was no distinct proof of any actual demise of the necessary-houses and sink, but they had regularly been cleansed by the persons occupying the dwelling-houses, until the time of the nuisance, when the cleansing had been neglected. The nuisance had arisen

In the Common Pleas-Rich v. Basterfield.

A

ground of the landlord having had power
to remove the nuisance, for he refers to
the admission said to have been made by
him, that he was bound to do it. If Rex
v. Pedley is to be considered as a case in
which a landlord is to be held liable, be-
cause he had demised the buildings on
which the nuisance existed, or because
he had relet them after the necessary
buildings had created the nuisance, and
because he had undertaken the cleansing
and had not performed it, we think the
judgment right, and it does not militate
against the present position; but if it is
to be taken as a decision that a landlord
is responsible for the acts of his tenants
in creating a nuisance, we think it goes
beyond any principle laid down in any
previously decided cases, and we cannot
assent to it. For the reasons given, we
think the verdict in this case should be
entered for the defendant on the plea of
not guilty, as well on the issue of not pos-
sessed, which refers to the time when the
nuisance was created. The rule must be
made absolute.
Rule absolute.

since the defendant had begun to receive opinion expressed by those very learned the rents. Some evidence was given to judges, for it appears to us, if a landlord lets show an implied admission by the de- premises not in themselves a nuisance, but fendant that he was bound to do the which may or may not be used by the tenant cleansing; and the jury, under Lord so as to become a nuisance; and if the landDenman's direction, found the defendant lord receive some profit after they are so guilty, subject to a motion for setting used, yet the landlord cannot be held reaside the verdict, and enter a verdict of sponsible for the acts of the tenant. acquittal. A rule nisi was granted, and fortiori, he could not be liable if he had after argument discharged. In that taken precautions, and bound the tenant case, as in the present, if the building not to use the premises so as to create a itself was not a nuisance, there was a nuisance. The judgment of Mr. Justice necessary-house which created the nui- Williams appears to proceed on the sance; and it is important to inquire on what ground the judgment proceeded. There it was contended, that the letting of the buildings could not itself render the defendant liable, though, no doubt, he would be responsible for the acts he permitted to be done, if he had undertaken to prevent the nuisance, but had permitted it to remain. The judgment of Lord Denman does not appear to be founded on that view of the case, but on the authority of Rex v. Moore, because the nuisance was the natural consequence of the letting; and the landlord, by taking the rent, must be considered as upholding and continuing the nuisance. Mr. Justice Littledale seems to have rested his judgment on the principle, that a landlord is not to let his house with a nuisance upon it; and he proceeds, "Here the periods are short, so that there has been a re-letting, and it has taken place after the use of the buildings had created the nuisance." He therefore assumes there was an existing nuisance at the time of the letting, which had not afterwards been removed, in his judgment, proceeding on the gronnd of the earlier authorities, and, virtually, Lord Denman held the same thing when he said, that the receipt of the rent was upholding and continuing the nuisance. Mr. Justice Taunton, after referring to a doubt as to the premises being demised, in which case he may not have been liable, proceeds to say, "The landlord was bound to exact from his tenants an obligation to cleanse, with a right of re-entry for himself in default of their so doing, and he was at all events liable." To this view we cannot subscribe, with all the deference and respect we feel to be due to any

TO OUR READERS.

THE following cases have been received, and will appear in our future numbers :— U. S. Circuit Court, Booth v. GarellyGuyon v. Serrell.

U. S. District Court, The U. S. Steamboat Naugatuck v. The Steamboat Rhode

Island.

Chancellor Walworth's Court, Didier v. Davison.

DECISIONS OF THE COURT OF COM- REVIEW-The Pennsylvania Journal, 20.

A

DIGEST

OF THE

CASES REPORTED.

[For Index to the Principal Matters, see ante, p. v.]