Beauchamp v. Excelsior Brick Co.

From time to time there occurred slides along the banks of these pits, carrying away large quantities of soil and greatly extending the area and circumference of the excavations. Some of these slides had carried down certain public streets in the immediate neighborhood. -In 1902 a crack appeared in the bank and crest of the westerly side of the Gillies and Excelsior pits, which ran southerly but irregularly towards the neighborhood of the' plaintiff’s house. Late at night on January 8, 1906, a great slide happened on the westerly side of the pits, carrying down a large part of the westerly crest of the excavation and extending southerly and easterly to the premises of the plaintiff; and, as a result, the plaintiff’s house, together with a portion of Liberty street adjoining it, fell into the deep hole of the Excelsior Gompany. At the time of the caving-in of her house, the plaintiff, who was in the house at the moment, underwent a harrowing experience and suffered severe personal injuries. In this action she seeks to recover for these injuries on the ground that the various defendants maintained a nuisance, which in some of its aspects was public and in others private. In this slide of January 8, 1906, others were injured and some were killed at various places affected by the falling in of the banks, and this court has been called upon to consider the rules of law applicable to the facts as presented in each record. In Adlin v. Excelsior Brick Co., 129 App. Div. 713 , 113 N. Y. Supp. 1017 , a man who was standing upon a public highway known as Rockland street was carried down and killed by the subsidence of the highway through this very slide. It was held that it was a question for the jury to determine whether the defendant’s excavation had removed the lateral support of the highway to the extent of creating a public nuisance, and a judgment dismissing the complaint was reversed, and a new trial was ordered. This court then cited as an authority for its holding, its earlier decision in Village of Haverstraw v. Eckerson, 124 App. Div. 18 , 108 N. Y, Supp. 506 , wheire it was held that, if the excavation destroyed the proper lateral support of a

Many of the parties defendant in this action have no community of interest in the happening which caused injury to this plaintiff, and their participation, if any, in its alleged causes are separate and distinct, and it becomes' necessary, therefore, to consider separately as to each defendant the case which the plaintiff attempted to make out by her proofs at the trial. The defendant Eckerson owned and maintained the pit furthest north from the. plaintiff’s house. If the causation of the slide or cave-in which injured the plaintiff can be traced directly to the pit on the Eckerson property, liability would at~, tach to Eckerson notwithstanding the distance of that pit from the plaintiff’s house. 1 Wood on Nuisances, § 207, and cases cited. In the record before us there is no proof tracing any causation for this particular accident to the Eckerson pit, and an attempt to impute liability upon the proofs here would be mere speculative guesswork. Eckerson, however, had acquired ownership of the Gillies pit five days before the slide of January 8, 1906, and it is contended that he thereby became háble for any cause contributed by the excavation on the Gillies property. It is true that it has been held that, if one acquire lands on which a nuisance exists, he becomes liable for the maintenance of the nuisance after his purchase; but this rule is subject to a necessary qualification that such liability does not attach until the purchaser has notice of the nuisance and has had a reasonablé time in which to abate it. Ahern v. Steele, 115 N. Y. 203 , 22 N. E. 193 , 5 L. R. A. 449 , 12 Am. St. Rep. 778 ; Conhocton Stone Road v. Buffalo, N. Y. & E. R. R. Co., 51 N. Y. 573 , 10 Am. Rep. 646 . On the proofs before us, it would have been physically impossible for Eckerson to have abated whatever nuisance existed on the Gillies property in the five days of his ownership thereof. As to him, therefore, the complaint was dismissed properly.

Gillies was sued as the one who had authorized the excavation on what is called the “Gillies pit.” The westerly crest of this pit caved in on the night of January 8, 1906. There is no evidence, however, to show on what property the subsidence began, nor whether a subsidence on the Gillies bank caused the caving-in of the Excelsior bank, or, on the contrary, followed and was caused by a subsidence of the latter bank. This question, on the record in this case, is left to be solved by mere speculation. There was not enough evidence, if any at all, to require a submission to the jury of the question of Gillies’ liability for the plaintiff’s injuries. We are brought now to a consideration of the most important and troublesome question in the case, viz., the liability of the defendant the Excelsior Brick Company and its general manager and one of its directors, who were made parties defendant.

The case at bar differs, in its essential facts, from that of Adlin v. Excelsior Brick Co., ut supra. There the person killed by the caving-in was on a public highway and. was carried down by the subsidence of the highway. Here the plaintiff was in a house, distant considerably from the place of the Adlin accident. This house and

In Campbell v. Seaman, 63 N. Y. 568 , 20 Am. Rep. 567 , there is a very lucid and elaborate consideration off the rule affecting one who “comes to a nuisance.” In that case the nuisance was a brick-burning furnace, which generated noxious gases, which injured the plants, and property of one owning and occupying land near by. The nuisance existed before the use of the adjoining land began, and it was held that this fact did not deprive the party injured of a remedy at law or in equity, in the absence of any prescriptive right to maintain the nuisance. The keynote of this decision is to be found in the statement of Earl, J., as follows:

“One cannot erect a nuisance upon Ms land adjoining vacant lands owned by another and thus measurably control the uses to which his neighbor’s land may in the future be subjected. He may make a reasonable and lawful use of his land and thus cause his neighbor some inconvenience, and probably some damage which the law would regard as damnum absque in

juria. But he cannot place upon his land anything which the law would pronounce a nuisance, and thus compel his neighbor to leave his land vacant, or to use it in such way only as the neighboring nuisance will allow.”

In Bly v. Edison Electric Illuminating Co., 172 N. Y. 1 , 64 N. E. 745 , 58 L. R. A. 500 , the plaintiff rented premises near an electric lighting plant and was injured by smoke and cinders emitted there-» from. The lease under which the premises were occupied was renewed by the plaintiff during the existence of the neighboring nuisance. The plaintiff, as occupant of the premises in question, brought an action to abate the nuisance and to recover past damages. She obtained a judgment enjoining the continuance of the nuisance and for damages. On appeal to the Appellate Division, First Department ( 54 App. Div. 427 , 66 N. Y. Supp. 737 ), the injunction was vacated and the damages reduced to the nominal amount of six cents. On a further appeal to the Court of Appeals ( 172 N. Y. 1 , 64 N. E. 745 ), the judgment of the Appellate Division was reversed on the question of damages; the question of an injunction being eliminated because of the removal of the plaintiff from the premises during the pendency of the appeals. The principle declared by the court was that the renewal of the lease during the existence of the nuisance could not be deemed an acquiescence in its continuance because the nuisance arose from the operation of the electric lighting plant, and the tenant of the neighboring premises had a legal right to presume that an unlawful method of operation would not continue. These two cases are typical of many that are to be found in the books on the question of “coming to a nuisance.”

This line of cases, however, does not cover a situation where one goes to an open nuisance and leases, from the party maintaining the nuisance, a part of the premises upon which the nuisance exists, and enters into occupation of the premises. The principles governing such a situation are. to be found in the law affecting the relations of landlord and tenant. It is true that the plaintiff was not the tenant of the defendant in the strict sense of the word. 'She was, however, the wife of the tenant, and the premises were let for family occupancy. Her rights against the landlord and its duties towards her, so far as the safety of the demised premises were concerned, were as large as, and no larger than, the rights of and the duties towards her husband, the tenant. 24 Cyc. 1119, and cases cited.

It is plain, beyond question, that a tenant who leases real property which is openly ruinous or dilapidated or perilously located has no claim in law against the landlord for injuries occasioned by these circumstances, in the absence of fraud ot warranty, unless the landlord actively interferes in such manner as to increase the existing hazards during the term of the lease. This proposition is so elementary as to need little or no citation of authority. Davidson v. Fischer, 11 Colo. 583 , 19 Pac. 652 , 7 Am. St. Rep. 267 . In the case at bar, the landlord had done absolutely nothing in the adjoining pit for four years before the accident. During these four years, the tenant had renewed the letting from time to time in face of the open peril and with full notice of .the existing conditions. Whether these conditions con

It follows, therefore, that the judgments should be affirmed, with costs. All concur.