15 Mo.App. 398 (Mo.App. 1884), Deutsch v. Abeles

Citation:15 Mo.App. 398
Opinion Judge:BAKEWELL, J.
Party Name:WILLIAM DEUTSCH, Respondent, v. NATHAN ABELES ET AL., Appellants.
Attorney:G. W. TAUSSIG, for the appellant: B. J. WERTHEIMER, for the respondent:
Case Date:April 29, 1884
Court:Court of Appeals of Missouri

Page 398

15 Mo.App. 398 (Mo.App. 1884)




Court of Appeals of Missouri, St. Louis.

April 29, 1884

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

G. W. TAUSSIG, for the appellant: The tenant alone is liable for a nuisance on the rented premises.-- City v. Kaime, 2 Mo.App. 66; Norton v. Wiswall, 26 Barb. 618; Lowell v. Spaulding, 4 Cush. 277.

B. J. WERTHEIMER, for the respondent: The owner of a freehold is liable for injuries resulting from the condition of the freehold itself, whether in his actual occupation or not.-- Eakin v. Brown, 1 E. D. Smith, 36; Bellows v. Sackett 15 Barb. 96; Mayor, etc., v. Bailey, 2 Denio 433; Regina v. Watts, 1 Salk. 357; Ball v. Nye, 99 Mass. 582. Where one erects a nuisance, or that which subsequently becomes a nuisance, and lets the premises to another, he is liable precisely as though he had not demised the premises and even though he can not enter lawfully to abate it.-- Fletcher v. Rylands, L. R. 1 Exch. 279, 282; Rosswell v. Prior, 12 Mod. 639; Thompson v. Gibson, 7 M. & W. (Exch.) 456; Phinizy v. The City of Augusta, 47 Ga. 260. Where there is no covenant to repair on the part of either landlord or tenant, where a nuisance results from such want of repair, an action may be maintamed against either of them therefor.--Wood's L. & T. 618, 620; Swords v. Edgar, 59 N.Y. 35; Staples v. Spring, 10 Mass. 79; Shipley v. Fifty Associates, 101 Mass. 251.



The petition in this cause contains the following allegations:--

Plaintiff owns and occupies a house erected upon a lot in the city of St. La. Defendant Abeles owns the adjoining house and lot, of which defendant Taylor is the lawful occupant. In March, 1882, the ownership and occupancy being as stated, water was permitted to flow from defendant's premises through the wall dividing them from those of plaintiff, into the cellar of plaintiff's house, flooding his cellar, injuring the health of his family, and damaging plaintiff's wall. Plaintiff notified defendants of the nuisance and damages thus occasioned; but defendants neglected to stop the flow of water, or remedy the injury, whereupon plaintiff, so far as he could, repaired the cause of the water flow, and at his own expense, employed competent workmen to remedy the defects found to exist in the drainage system and water pipes on defendants' premises. After the repairs, the flow of water upon plaintiff's premises ceased until the 1st of January, 1883, at which time water was again permitted to flow through the partition wall aforesaid from the premises of defendants into those of plaintiff, flooding his cellar to the depth of three feet. Of all which defendant had notice, and neglected, for an unreasonable time, to abate the nuisance, until great injury had been done to plaintiff and his property by reason thereof. Plaintiff was compelled at great expense to employ workmen to remove the water from his premises. Plaintiff has demanded of defendant Abeles, that he reimburse him for the money so expended in repairs, but said defendant refuses to do so, and plaintiff has not been reimbursed by the defendants, or either of them. By reason of the unskillfulness and negligence of defendants...

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