Center & Treadwell v. Davis , 39 Ga. 210 ( 1869 )

Warner, J.

This is an action brought by the plaintiffs to recover damages from the defendant for injury done to their goods in a store-room rented by the plaintiffs of the defendant. On the 4th day of June, 1859, Davis, the defendant, .entered into a written contract with the plaintiffs to rent them a store-room then in the process of building, in the city of Atlanta, for the term of one year for the sum of eight hundred dollars per annum, with the privilege of renting said store-room for three additional years, at the same rate, and Davis, the landlord, stipulated on his part, to have said storeroom well fitted up and ready for use by the second Monday in August, 1859. The plaintiffs went into the possession of the store-room, as the tenants of Davis, under the contract, after its erection, occupied it for one year, and, in pursuance of the original contract between the parties, rented the storeroom for another year. It appears from the record, that after making the rent contract, Davis, the landlord, proceeded to erect over the store-room rented to the plaintiffs, and over the adjoining store-room rented to another tenant, a boarding-house and kitchen; the boarding-house on the front part of the two store-rooms and the kitchen on the back part thereof, and constructed a platform, or walk, over the valley between the roofs of the two store-rooms, leading from the boarding-house to the kitchen. Davis, the landlord, rented the boarding-house, kitchen, and fixtures, so erected over the store-rooms, to another ten'ant, who occupied the same as a boarding-house. The boarding-house, kitchen and fixtures, were erected over the store-rooms by the defendant when the plaintiffs renewed their lease for the second year, under the original contract. The evidence in the record shows, that in consequence of the erection by the defendant of the buildings and fixtures, over the store-rooms, and the use thereof by his tenants, to whom he rented the same, the plaintiffs have been damaged by the water thrown upon their goods in the store-room rented from the defendant, to the amount of twelve hundred dollars. On the trial of this case in the Court below, the jury found a verdict for the defendant, and the Court overruled a motion for a new trial, which is now assigned for error here.

The defendant erected the fixtures over the plaintiffs’ storeroom, and it is an indisputable fact, that the plaintiffs’ goods have been damaged in consequence of the erection of such fixtures, either whilst the same were in the possession or control of the defendant, or whilst the same were in the possession or control of his agents and tenants; and the question is, whether the defendant is legally liable to the plaintiffs for the amount of damages which they have sustained, upon the facts, as stated in the record now before us. It is said that the defendant is not liable, because the damage was caused by the negligent conduct of the defendant’s tenants, to whom he had rented the fixtures over the storeroom, that the landlord is not liable to an action for a nuisance erected, or continued by his tenant on the premises rented, and that it was so held by this Court, in the case of Vason vs. the City Council of Augusta, 38 Ga. R., 542. In that case,'Nason was prosecuted on the criminal side of the Court for a public nuisance, which affeotéd the public generally, and in that case this Court very properly held, that the landlord was not liable to be indicted and punished for the criminal act of his tenant, with which he had no connection. But the inquiry is made, what reason applies in favor of the exemption of the landlord in that case, that does not apply to him in this case ? The simple answer is, that this is a private nuisance, that was a public nuisance. “ Generally, a public nuisance gives no right of action to any individual, but must be abated by a process instituted in the name of the State. A private nuisance gives a right of action to the person injured:” Eevised Code, section 2946. Blackstone says, “ that the law gives no private remedy for anything but a private wrong; therefore, no action lies for a public or common nuisance, but an indictment only.” 3 Bl. Com., 210. In the case of the South Carolina Railroad Co., vs. Moore & Philpot, 28 Ga. R., 418, this Court said: “There is no dispute that the general rule of law is, that a private action will not lie for a public nuisance. It is the subject of indictment not of action.” The distinction which the law makes between the two cases is this, that the landlord is not liable for the independent criminal act of his tenant in the erection or continuance of a public nuisance, but that he is liable to an action for damages for the erection or continuance of a private nuisance, either by himself, his agents, or tenants, whereby private individuals are injured. See Taylor’s Landlord and Tenant, 129, section 206. In Eosewell vs. Prior, Salkeld 460, an action for the continuance of a nuisance was held to lie against the defendant, though he had underlet the building which was the subject of it, and though the plaintiff had recovered against him in a former action for the erection of the nuisance, for the Court said, “ he affirmed the continuance by his demise, and received rent as a consideration for it.” “ So if a man recover against A for the erection of a nuisance, he may afterwards maintain an action against him for the continuance, though he has made a lease of it to another, or may have it against the lessee of A for the continuance at his election.” 1st Comyn’s Dig., 429, title Action on the case for a nuisance. See 2nd, Greenleaf’s Ev., 385, section 472. In this case Davis, the landlord, erected the nuisance over the store-room of the plaintiffs which caused the damage, and demised the premises with the nuisance erected thereon by himself, to his tenants, receiving rent therefor, and thus continued the nuisance. See Bush vs. Steinman, 1st, Bos. and Puller’s R., 404. In the case of Bonner vs. Wellborn, 7 Ga. R., 296, this Court held unanimously, that an action could be maintained against the erection of a private nuisance by him who was the owner of the property damaged at the time of the erection of the nuisance. The plaintiffs in this case, rented the store-room of the defendant, and the injury resulting from the nuisance was a damage to them and not to their alienee. What is a nuisance ? “ A nuisance is any thing that maketh hurt, inconvenience or damage to another, and the fact that the act may otherwise be lawful, does not keep it from being a nuisance. A private nuisance may injure either the person or property, or both, and in either case a right of action accrues.” Revised Code, sections 2948, 2949. The defendant was the owner of the property at the time of the erection of the nuisance, and was the owner of it at the time of the damage caused by it to the plaintiffs, exercising dominion and control over it, either by himself, his agents or tenants, and was liable to them therefor.

So far as the rights of the plaintiffs were concerned, the tenants of the boarding-house were the defendant’s agents, and he is bound by their acts of negligence, from which damage has resulted to the plaintiffs. Code 275. It is contended in this case, that the plaintiffs undertook to keep the premises in repair, and therefore, it was their own fault that their goods were damaged by the water thrown upon them from the roof of the building. In my judgment, what is said in the record about repairs, only extended to the ordinary repairs of the roof, to prevent it from leaking; the term “ repairs,” as it appears in the evidence, did not extend to the removal of the fixtures by the plaintiffs, which had been”erected by the defendant over their store-room, twhich caused the damage, and was not, in my judgement, so understood by either of the parties; the plaintiffs ’had no right as the tenants of the'' defendant, under the general’’ license to make “ necessary repairs ” to have removed the permanent fixtures, which the witnesses state caused the damage. Code 2255.

But it was contended, on the argument, that the cleaning out of the gutter and valley on the roof, and removing the trash therefrom, which had negligently been placed there by the defendant’s tenants of the boarding-house, was such repairs as the plaintiffs were bound to attend to, and have done, and if they failed to do so, it was their own fault, and the defendant was not liable for the damage caused thereby. The Court below charged the jury on this branch of the case: “But the law does not require the landlord to sweep the premises and keep them clean while the tenant is occupying them; this is the tenants’ business. If the house was properly built, and kept in repair, and if being kept clean, no damages would have resulted, defendant is not liable. If the kitchen overhead was built after plaintiffs first went into the house, and they renewed their tenancy without objection after it was built, the trouble of sweeping and keeping clean the premises is no matter of which the plaintiffs could afterward complain.” In view of the facts of this case, this charge of the Court to the jury was error, and calculated to mislead them. The plaintiffs were only tenants of the store-house which they rented-from the defendant; they were only bound to sweep and keep that clean; it was not their business or duty to sweep and eep clean the premises above them, which caused the dam-k age to their goods, and which were in the occupancy of the defendant’s tenants; they had no legal right to go there for that purpose. The defendant, as their landlord, was bound by his contract, to keep the store-house rented to the plaintiffs, fit for the use for which he rented it to them, and if, by obstructions placed there by himselfj and used by his tenants, such obstructions and the use thereof by his tenants, rendered the store-house u/nfit for the purposes for which it was rented, and damage to the plaintiffs resulted therefrom, the defendant, as their landlord, is liable therefor, and the plaintiffs have the legal right to complain whenever damaged thereby, whether they renewed their tenancy under their original contract after the erection of the obstructions by the defendant, as their landlord, or not. The contract was made before the obstructions were erected over their store-house by the defendant* their tenancy was renewed in pursuance of that contract. In my judgment, the plaintiffs would have been entitled to recover of the defendant for the damages sustained by the water thrown upon their goods in the store-room, as stated in the record, according to the general principles of law, for having erected and continued a nuisance upon the premises rented to them, independent of any special contract between the parties; much more are they entitled to recover under their contract, by which the defendant stipulated to have the store-room well fitted up, and ready for the use of the plaintiffs, and received from them the sum of eight hundred dollars per annum rent therefor. Let the judgment of the Court below be reversed.

McCay J., concurred, but furnished no opinion.