Fleischner v. Citizens' Real Estate & Inv. Co.

• Decision Date: 26 December 1893
• Citation: Fleischner v. Citizens' Real Estate & Inv. Co., 25 Or. 119, 35 P. 174 (Or. 1893)
• Parties: FLEISCHNER v. CITIZENS' REAL-ESTATE & INV. CO.
• Court: Oregon Supreme Court

35 P. 174

25 Or. 119

FLEISCHNER v. CITIZENS' REAL-ESTATE & INV. CO.

Supreme Court of Oregon

December 26, 1893

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Action by L. Fleischner against the Citizens' Real-Estate &amp Investment Company.There was judgment for plaintiff, and defendant appeals.Affirmed.

The other facts fully appear in the following statement by MOORE J.:

This is a suit to restrain the defendants from maintaining a private nuisance, and for the recovery of the damages resulting therefrom.The facts show that the plaintiff is the owner of lots 5, 6, and 7, in block 20, as shown upon the recorded plat of the city of Portland, and that the defendant, the Citizens' Real-Estate & Investment Company, a private corporation, is the owner of lot 8 in said block, which joins plaintiff's property on the north.That on September 28 1888, John Donnerberg owned said lot 8, and on that day leased it and the building thereon to Richard Clinton and wife, to be used as a theater for the term of three years from October 1, 1888, at the monthly rental of $250.The lease, among other things, provided that it should be optional with the lessees to renew it for a term of two years after the expiration of the first term, upon the payment of $300 per month, they agreeing to keep the building in good repair, and to make no improper use of the property, nor sublet it, without the written consent of the lessor.That on December 5, 1889, the said Donnerberg entered into a contract with the Citizens' Real-Estate & Investment Company, whereby, in consideration of $5,000 paid down, and the payment of $20,000, and the execution of a note and mortgage for $25,000, within six months thereafter, he agreed to execute and deliver to it a warranty deed for said property.Said contract further provided that until the deed was executed and delivered Donnerberg should collect the rents under the lease.That on March 6, 1890, said Clinton and wife, with the written consent of Donnerberg, assigned their interest in said lease to F.W. Eagles, as trustee for John Cort.After the lease was assigned, the use of the building as a theater was abandoned, the first floor was cut up into saloons, stores, shops, and booths, and the second floor partitioned into lodging rooms, and all let to Chinese tenants, who placed sinks, closets, and urinals therein, which were so imperfectly connected with the sewer that the slops and liquids therefrom saturated the soil beneath the building.That about the time these changes were made the plaintiff commenced to excavate a cellar upon his lots for the purpose of erecting a six-story brick building, and the water, filth, and foul matter from said lot 8 poured into the excavation to such an extent that the work was impeded, whereupon the tenants and landlord were notified by the chief of police, and temporary relief was obtained, whereby the plaintiff was enabled to erect one story of his building, which was roofed over, with the intention at some future of completing the other stories.After plaintiff's building was completed, the water and foul matter from the premises occupied by said Chinese percolated through and moistened a portion of his cellar wall about 60 feet long and 2 1/2 feet high, creating a slimy substance thereon that caused foul and noisome odors, rendering the plaintiff's premises unwholesome and sickly, and weakening the said wall.That on July 31, 1890, Citizens' Real-Estate & Investment Company made final payment, and received the deed from Donnerberg and wife for said lot, and nine days thereafter commenced a suit in the circuit court of the state of Oregon for Multnomah county against John Cort, Charles Green, and others, to enjoin them from interfering with the possession of said premises, and a restraining order was issued, but, before it could be served upon them, said F.W. Eagles and John Cort filed their bill in the circuit court of the United States for the district of Oregon against the said company, and obtained a provisional injunction therein, whereupon said Cort and Green appeared in the state court in the said suit against them, filed a plea in abatement, and upon their motion said suit was dismissed.The Citizens' Real-Estate & Investment Company appeared in said suit in the United States court.Issues were joined, testimony taken, and on October 16, 1891, a decree was rendered therein enjoining and restraining said corporation from interfering with said premises until the expiration of said lease.That after the said decree was rendered the corporation secured possession of a portion of the premises claimed by it, and commenced an action in the state court against the tenants in possession of said lot, whereupon said F.W. Eagles, John Cort, and one Sigmund Schwabacher, who had acquired some interest therein, appeared in said action, and, being substituted for the tenants, filed their petition and bond for the removal of said cause, and it was by order of the court removed to the federal court, where, upon a trial of the issues, judgment was rendered against the corporation, from which it appealed; but, pending the appeal, a compromise was effected, and under the option provided in the contract the corporation executed a lease to said Eagles and others, whereby, in consideration of the payment of $400 per month, it demised to them said premises for a term to expire December 31, 1892, and said appeal was dismissed.The plaintiff alleges the existence of the nuisance, and its effect upon his building; that he had notified the defendants to abate it, but that they had failed to do so, and that, in consequence thereof, his property had been damaged in the sum of $3,000; and prayed that said nuisance be abated, the defendants prohibited from continuing it, and for his damage.The Citizens' Real-Estate & Investment Company, after denying the allegations of the complaint, allege the facts hereinbefore recited.The testimony having been taken and submitted, the court rendered a decree in favor of the plaintiff for the abatement of the nuisance, and awarded him $500 damages, from which the company alone appeals.

A.H. Tanner, for appellant.

W. Minor, for respondent.

MOORE J., (after stating the facts.)

The appellant contends that the execution of the lease on December 14, 1891, was not a reletting of the premises, and that it is not liable for any of the damages sustained by plaintiff.The authorities are uniform in holding that a landlord out of possession is not responsible for a nuisance occurring after the execution of the lease unless he is in some manner at fault for its creation or continuance.Wolf v. Kilpatrick,101 N.Y. 146, 4 N.E. 188.When the landlord has not covenanted to keep the premises in repair the duty is imposed upon the tenant, under the implied covenants of the lease, to so use the property as to avoid the necessity for repairs, ( Powell v. Railroad Co.,16 Or. 33, 16 P. 863;) and in such cases, if the property were in good condition at the time of the demise, and leased for a purpose that would not create a nuisance, the tenant, and not the landlord, is liable to third persons for injury from the creation or maintenance of any nuisance upon the leased premises, ( Fisher v. Thirkell,21 Mich. 1.)The reason for this rule is put upon the theory that the lease gives to the tenant the exclusive possession of the premises, and thereby excludes the landlord's right of entry; and, his right of entry and possession being suspended during the term, it follows that his liabilities in respect to the possession are also suspended, except as to such defects in the premises at the time of the demise as might in the manner of their use produce injury to third persons.The general rule of law is that the tenant, and not the owner, is responsible for injuries received in consequence of a failure to keep the premises in repair.To this general rule the authorities recognize these exceptions: (1) When the landlord has, by an express agreement between the tenant and himself, agreed to keep the premises in repair, so that in case of a recovery against the tenant he would have his remedy over against the...