City of Lowell v. Spaulding , 58 Mass. 277 ( 1849 )

Shaw, C. J.

The city of Lowell, having been obliged to pay damages to a party injured through a defect in one of the' highways therein, arising from the want of repair of a sidewalk, now seek their remedy to recover single damages of the defendant, as the owner of the estate, the sidewalk of which was defective. This case would be similar in principle to the case of Lowell v. Short, next preceding, if the defendant was bound to repair. But it appears from the facts stated, that the defendant had only a reversion in the estate, azid that the tenements were in the actual occupation of his tenants.

By the common law, the occupier azid not the landlord is bound, as between himself and the public, so far to keep buildings in repair, that they may be safe for the public; and such occupier is prima facie liable to third persons for damages arising from any defect. Regina v. Watts, 1 Salk. 357; S. C. 2 Ld. Raym. 856; S. C. 3 Ld. Raym. 18; Cheetham v. Hampson, 4 T. R. 318. If, indeed, there be an express agreement between landlord and tenant, that the former shall keep the premises in repair, so that in case of a recovery against the tenant, he would have his remedy over, then to avoid circuity of action, the party injured by the defect and want of repair, may have his action in the first instance against the landlord. Payne v. Rogers, 2 H. Bl. 350. But such express agreement must be distinctly proved. Judgment for the defendant.