for damages caused by its continuance after he had left the possession of the premises, and others had assumed it, when there was no evidence that they held as tenants in common of such former owner. This was modified in Waggoner v. Jermaine,1 and the rule given that if a person erects a nuisance upon his own lands, as by obstructing a watercourse, and then conveys his premises to another with warranty, he remains liable for damages caused by the continuance of the nuisance after the conveyance. The warranty of the land as then used is taken as an upholding of the nuisance. In Mayor of Albany v. Cunliff,2 the rule is thus stated that a party who has erected a nuisance will sometimes be answerable for its continuance after he has parted with the possession of the land. But it is only where he continues to derive a benefit from the nuisance, as by demising the premises and receiving rent, or where he conveys the property with covenants for the continuance of the nuisance." This is followed in Hanse v. Cowing, and the rule in Blunt v. Aikin, with the foregoing modifications, affirmed. § 391. Generally the landlord is not liable for nuisances created by the tenant during his tenancy, but may become so if he relets the premises with the nuisance continuing; or if after the creation of the nuisance, and before the damage caused, he might have put an end to the tenancy and did + Woodfall, Landlord and Tenant (11th ed.), 690; Wood, Landlord and Tenant, § 539; Kastor v. Newhouse, 4 E. D. Smith, 20; Jansen v. Varnum, 89 Ill. 100; IIarris v. Cohen (Mich. Sup. Ct.) 15 N. W. Rep. 433. A declaration charging the defendant with the duty of cleansing drains, merely as owner and proprietor thereof, is bad. Russell v. Shenton, 3 Q. B. (A. & E. N. s.) 449. The same rule is applied in Carter v. Berlin Mills Co., 58 N. H. 52, cited in 19 Alb. L. J. 3, where the defendants owned a waterpower, of which third persons obtained the use under a contract; and the defendants were held not liable for damages caused by the negligent use of the power by the third persons. If a married woman owns land, and it is occupied by a tenant, or cultivated by her husband, and either of them erects a dam thereon, or digs a ditch, so as to overflow the land of another, she will not be liable unless the act was done under her direction or with her approval, or she knowingly maintained it. Jansen v. Varnum, 89 Ill. 100. not (which is equivalent to a reletting 1); or if he retains control of that part of the property in which the nuisance is caused.2 In the case of nuisances from the non-repair of the premises, if the landlord takes from the tenant a covenant to repair, he is not liable, since he does not authorize the continuance of the nuisance.3 § 392. The person occupying the premises is, for the same reason, liable for the continuance of a nuisance created before his occupancy: But the continuance must be with knowledge of the nuisance. Such knowledge will not be presumed, 1 Rex v. Pidley, 1 A. & E. 822; Gandy v. Jubber, 5 B. & S. 78, 485; 33 L. J. Q. B. 151. And see Dicey on Parties, 422. 2 Shipley v. Fifty Associates, 101 Mass. 251; Marshall v. Cohen, 44 Ga. 489; Brown v. Bussell, L. R. 3 Q. B. 251, 261. In the latter case the landlord retained control of a drain which became a nuisance from the tenant's use of it. 3 Pretty . Bickmore, L. R. 8 C. P. 401; affirmed (in case of coal shoot) L. R. 10 C. P. 658. And see Gandy v. Jubber, 5 B. & S. 78, 485. In Preston v. Norfolk Railway Co., 2 H. & N. 735, the Norfolk Railway Company owned a canal and lock, for navigation, and transferred to the Eastern Counties Railway Company the exclusive possession, use, enjoyment, and receipt of all property, rights, rates, etc., therein, and the latter company agreed to repair and keep up the works at all times. The gates and lock were out of repair at the time of the transfer, and after the Eastern Counties Company took possession, large quantities of water escaped and were diverted from the stream to the injury of the plaintiff. Pollock, C. B., held that the Norfolk Company was not liable, and that the Eastern Counties Company was, on the ground that the latter company had possession at the time of the diversion. The covenant to repair was not alluded to. The decision may be supported on the ground that the canal and lock had not become a nuisance at the time of the transfer, for there is no law against letting a tumble-down house, or property out of repair. Robbins v. Jones, 15 C. B. N. S. 221, 240. And the covenant to repair would have the effect of discharging the transferrer. Where a contractor erected piles in a river, and, after completing his work, sold the piles which his vendees cut off and removed, leaving stumps which became a nuisance, the contractor was held not liable. Bartlett v. Barker, 3 H. & C. 153. Where the lease contemplates or authorizes a nuisance, the landlord is liable. Harris v. James, 45 L. J. Q. B. N. s. 661. + In Beswick v. Combdon, F. Moore, 353; Cro. Eliz. 402. A feoffee was held liable for maintaining a bank in a stream, which caused an overflow of another's land. At a later hearing of this case it was held no offence for the feoffee to maintain the bank as he found it. Cro. Eliz. 520. But this is no longer law. In a case where the defendant's husband in his lifetime diverted a watercourse from the plaintiff's house, and after her husband's death the defendant continued the diversion, she was held liable in case. Moore v. Dame Browne, Dyer, 3196. and an action cannot be maintained against him until he has been notified of the existence of the nuisance, and requested to abate it. He may rightfully suppose that the property has been lawfully used in the past, and may use it as it was used when purchased until objection is made. The Supreme Court of Connecticut say: The purchaser "might be subjected to great injustice if he were made responsible for consequences of which he was ignorant, and for damages which he never intended to occasion. They are often such as cannot easily be known except to the party injured. A plaintiff ought not to rest in silence, and finally surprise an unsuspecting purchaser by an action for damages; but should be presumed to acquiesce until he requests a removal of the nuisance." 2 § 393. The form of the notice is immaterial, provided its character is clear and unmistakable. In Woodman v. Tufts,4 a letter of remonstrance was held sufficient, and the court say: "No particular form of words is required. The person continuing a nuisance should be so far apprized of the injury done, and of the claim made for redress, as not to be taken by surprise, and subjected to unnecessary costs by the commencement of a suit against him." In Carleton v. Redington, the court say: "It may be written or verbal, or by acts clearly giving the party notice of the claim for a removal of 1 Penruddock's Case, Rep. 101a; Brent v. Haddon, Cro. Jac. 555; Tomlin . Fuller, 1 Mod. 27; Winsmore v. Greenbank, Willes at 583; Salmon . Bensley, Ry. & M. 189; Jones v. Wil liams, 11 M. & W. 176; Plumer r. Harper, 3 N. H. 88; Woodman v. Tufts, 9 N. H. 88; Curtice . Thomp son, 19 N. H. 471; Carleton . Redington, 21 N. H. 291; Eastman r Amoskeag Manuf. Co., 44 N. H. 143; Johnson v. Lewis, 13 Conn. 303; Branch . Doane, 17 Conn. 402; Noyes v. Stillman, 24 Conn. 15; Pierson v. Glean, 2 Green (N. J.) 36; Beavers v. Trimmer, 25 N. J. L. 97; Pillsbury v. Moore, 44 Maine, 154; McDonough v. Gilman, 3 Allen, 264; Nichols v. Boston, 98 Mass. 39; Dodge v. Stacy, 39 Vt. 558, at 577; Howe Scale Co. v. Terry, 47 Vt. 109, 124; Morris Canal Co. v. Ryerson, 27 N. J. L. 457. See 2 Saund Pl. & Ev. 464; 1 Chit. Pl. 95. In Hughes v. Mung, 3 Har. & McH. (Md.) 441, it was held that the alienee would be liable for doing any act to continue the diversion. 2 Johnson v. Lewis, 13 Conn. 303, 307. 3 Woodman v. Tufts, 9 N. H. 88; Carleton v. Redington, 21 N. H. 291; McDonough v. Gilman, 3 Allen, 264. 49 N. H. 92. 5 21 N. H. 311. the nuisance." Such a notice to a municipal corporation, as a grantee continuing a nuisance, must be served upon the proper officer, and in Nichols v. Boston, it was held that the mayor was the proper officer, and that a notice given to the clerk was insufficient.1 In Tomlin v. Fuller,2 it was held that the lack of notice was cured by a verdict, where the objection was not taken until after verdict obtained. In Salmon v. Bensley, it was held that a notice left at the premises was evidence of knowledge, as against a subsequent occupier; but in Nichols v. Boston, it was held that a judgment against the grantor for a nuisance, existing a year previous, was no evidence of knowledge of its continuance. 4 § 394. In New York the rule has varied somewhat. The later decisions hold that a purchaser of property, upon which there is a nuisance, must be shown to have notice or knowledge of its existence before he will be liable for damages caused by its continuance, but that it is not necessary to prove a request to abate it.5 The rule formerly was that a purchaser who continued a nuisance was responsible for the damages caused by it, although he had not been notified to remove it, nor, it would seem, shown to have knowledge of it.6 In Brown v. Cayuga Railroad Co., the defendants had 1 Nichols v. Boston, 98 Mass. 39. 21 Mod. 27. 3 Ry. & Mo. 189; 21 E. C. L. 730. 4 98 Mass. 39. 5 Conhocton Stone Road v. Buffalo Railroad Co., 51 N. Y. 573. Reversing s. c. 52 Barb. 390; Miller v. Church, 2 T. & C. 259; s. c. 5 Hun, 342. 6 Brown v. Cayuga Railroad Co., 12 N. Y. 486; followed in Irvin v. Wood, 4 Rob. 138; 51 N. Y. 224; Conhocton Stone Road v. Buffalo Railroad Co., 52 Barb. 390. And see Bellinger v. New York Central Railroad Co., 23 N. Y. 52; Wasmer v. Delaware Railroad Co., 80 N. Y. 212. 7 12 N. Y. 486. Of this it may be said that the opinion of Denio J. himself is an obiter dictum. He said: "If we should be of opinion that an action on the case could not be maintained against one who has continued a nuisance erected by another, without notice to remove it having been first given, the defendants could not claim the benefit of that principle in this case, for the reason that they failed to make any such objection at the trial;" and that the case of Rolf v. Rolf, cited in Penruddock's case as agreeing with it, was one of an action on the case for the nuisance of drip. See Beswick v. Combden, F. Moore, 353. The case of Jones v. Williams, 11 M. & W. 176, is subject to the same limitation which he puts upon Tomlin v. Fuller, 1 Mod. 27, and the facts in Salmon v. Bensley bought a railway and land, which included a cut in the bank of a stream. The action was for damages from the overflowing of the plaintiff's land through this cut. Denio, J., laid down the rule as above. He confined the rule in Penruddock's case to the writ of quod permittat; distinguished Tomlin v. Fuller as a case of denying a right of way through the defendants' land, and therefore not applying to all nuisances: relied on Salmon v. Bensley as showing that the notice need not be personal; and held that the rule in Johnson v. Lewis was not sustained by these cases, and was incorrect in principle. He made no reference to Brent v. Haddon or to Jones v. Williams. are not given. But this doctrine of Denio J.'s opinion was opposed by the opinion of Strong, P. J., a year and a half later (1857) in Hubbard v. Russell, 24 Barb. 404. He followed the English cases, and gave the usual rule. Judge Denio's opinion was not referred to, and apparently was not brought to Judge Strong's attention, and the decision was based on the ground that a request was sufficiently proved. The question was again brought before the court of appeals in the case of Conhocton Stone Road v. Buffalo Railroad Co., 51 N. Y. 573, reversing s. c. 52 Barb. 390. The cases were reviewed at length by Lott, Ch. C., the decision below reversed. Brown v. Cayuga Railroad Co. was overruled, and the rule settled as stated at the beginning of this section. It differs from the ordinary doctrine in holding that no request to abate the nuisance is necessary. This decision is noticed in Morse v Fair Ilaven East, 48 Conn. 220. The action was case for a nuisance created by the town of East Haven, by the improper construction of a highway, and continued by the borough of Fair Haven East. It was found that the borough had, at the time of the transfer of liability for the highway from the town to the borrough, no knowledge of the nuisance. The Supreme Court held that it was not a case of defective highway but of nuisance, and that the borough could not be held liable in the absence of knowledge. After referring to Johnson v. Lewis, 13 Conn. 303, and the New York cases above cited, Park, C. J., said: “It is not necessary for us to consider whether such a request is necessary, as the want of knowledge is decisive of the present case." The New York doctrine is followed in Pinney v. Berry, 61 Mo. 359; Dickson v. Central Pacific Railroad Co., 71 Mo. 575; Wayland v. St. Louis Railway Co., 75 Mo. 548. In the last case the court also had occasion to decide that a purchaser is not liable for either the erection or continuance of a nuisance created by his vendor upon adjoining land. A railway company had dug a ditch mainly upon its own land, connecting a lake with a river, for purposes of drainage; but the discharge into the river was upon the land of another. The water, when high, flowed backward from the river, and overflowed adjoining land; and the overflow was found to be due to the construction of the discharge which was upon another person's land. A purchaser of the road was held not liable for damages caused by a subsequent overflow. |