17 Mo.App. 605 (Mo.App. 1885), Griffith v. Lewis

Citation:17 Mo.App. 605
Opinion Judge:THOMPSON, J.
Party Name:T. J. P. GRIFFITH ET AL., Plaintiffs in Error, v. M. D. LEWIS, Administrator, Defendant in Error.
Attorney:DANIEL MCGOWAN and A. R. TAYLOR, for the plaintiff in error: EDWARD WHITE, for the defendant in error:
Case Date:May 05, 1885
Court:Court of Appeals of Missouri
 
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Page 605

17 Mo.App. 605 (Mo.App. 1885)

T. J. P. GRIFFITH ET AL., Plaintiffs in Error,

v.

M. D. LEWIS, Administrator, Defendant in Error.

Court of Appeals of Missouri, St. Louis.

May 5, 1885

ERROR to the St. Louis Circuit Court, LUBKE, J.

Reversed and remanded.

DANIEL MCGOWAN and A. R. TAYLOR, for the plaintiff in error: This tenancy from the deceased owner was from month to month, not being in writing after 1881, and being in this city. --Revised Statutes, sect. 3078. The holding over after the end of the written lease of 1881, was only a tenancy from month to month.-- Hammond v. Douglass, 50 Mo. 444. If premises were in a defective condition at the time of making lease, and injury ensued therefrom to plaintiffs, they could hold at their election either lessor or lessee.--1 Thompson, Neg., 317, sect. 12, note 7, with authorities cited. As this tenancy was monthly after the year 1881, the lessor was liable for a nuisance existing upon each monthly renewal of lease.--1 Thompson, Neg., 319; Wood, Landlord and Tenant, 917,918. To suffer filthy water from a vault to percolate through the soil to the injury of an adjoining proprietor, where the owner of the property on which the nuisance exists has notice is actionable.-- Ball v. Nye, 99 Mass. 582.

EDWARD WHITE, for the defendant in error: In the absence of covenants, a tenant is bound to keep the rented premises in repair.-- Deutsch v. Abeles, 15 Mo. 398; Padberg v. Kennerly, 16 Mo.App. 556. And a nuisance arising from non-repair is the nuisance of the tenant.-- Vai v. Weld, 17 Mo. 232; Wood, Nuisances, 950; Taylor, L. & T. sect. 175, and cases cited supra.

OPINION

THOMPSON, J.

This was an action for damages for a nuisance. At the close of the plaintiff's testimony the court directed the jury that the plaintiff could not recover.

The substantial averments of the petition were that the plaintiff, Mrs. Griffith, was the owner of certain premises in the city of St. Louis; that the defendant's intestate, Mrs. Mulford, " was on or about the 15th day of February, 1880, and for a long time before and ever since till the time of her death, hereinafter mentioned, the owner and in possession of a lot of ground immediately adjoining and abutting against the above described premises; that on said lot of ground is erected a tenement house with a privy vault which is sunk at great depth in the ground; and that by old age and long usage, it became worn out, leaky, and dilapidated, defective and out of repair * * *; that defendant knowingly maintained the privy vault upon said lot in said condition, and wantonly and intentionally permitted it to remain full of water, excrement, and filth. That said tenement house, with the nuisance on said lot, was rented out, from time to time and from month to month, to tenants by said defendant" (meaning the defendant's intestate, Mrs. Mulford, and the defendant, J. E. Kaime, her agent as to whom the suit was subsequently dismissed). Then, after an averment touching the condemnation of the premises as a nuisance by the Board of Health under an ordinance of the city, the petition further avers " that, on or about the 15th day of June, 1882, and for a long time before and ever since, till about the 15th day of March, 1883, the foul water and filth of said privy vault as aforesaid, percolating and siping through the ground of said defendant and through the walls of the plaintiff's dwelling house and hotel and into the cellar and basement and ascending therein to the height of several feet, and thereby causing the walls of said house and hotel to be greatly weakened, split, and fractured and the floor of said basement and cellar to be rotted; that by reason of the unwholesome vapor arising from the foul and stagnant water in said cellar and basement and ascending in and around said premises, the health of the plaintiff's, of their family, and of the inmates of their house and hotel has been and is greatly impaired and injured and the business of said plaintiffs in consequence thereof has suffered great loss. Wherefore, by reason of said loss and injuries to plaintiffs they were and are damaged in the sum of two thousand dollars for which sum plaintiffs ask judgment."

The answer of the defendants was a general denial.

According to the...

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