Herrst v. Regents of the Univ. of Mich.

• Decision Date: 18 June 1925
• Docket Number: No. 95.,95.
• Citation: 204 N.W. 119,231 Mich. 396
• Parties: HERRST et al. v. REGENTS OF THE UNIVERSITY OF MICHIGAN et al.
• Court: Michigan Supreme Court

231 Mich. 396

204 N.W. 119

HERRST et al.

v.REGENTS OF THE UNIVERSITY OF MICHIGAN et al.

No. 95.

Supreme Court of Michigan.

June 18, 1925.

Appeal from Circuit Court, Washtenaw County; George W. Sample, Judge.

Action by John E. Herrst and another against the Regents of the University of Michigan and Edward C. Pardon. Judgment for plaintiffs against defendant Pardon, and he brings error. Reversed and remanded, with directions.

Argued beore McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Cavanaugh & Burke, of Ann Arbor, for appellant.

Jacob F. Fahrner, of Ann Arbor (Carl A. Lehman, of Ann Arbor, of counsel), for appellees.

WIEST, J.

Plaintiffs own a lot on Belser street in the city of Ann Arbor. The Regents of the University own a lot on Volland street in the same city. Plaintiffs' lot and the university lot abut at the rear. Defendant Edward C. Pardon, in July, 1923, was superintendent of buildings and grounds held by the Regents and, as such, had permitted Earl Rising, tenant of the Volland street lot, to build a barn on the lot, so close to the line and near a barn standing on plaintiffs' lot that, when the Rising barn burned, July 26, 1923, it set fire to plaintiffs barn and destroyed it and its contents. This suit was brought to recover the loss suffered by plaintiffs and verdict was had against both defendants, but judgment against defendant Pardon alone. The regents were discharged from liability under the authority of Robinson v. Circuit Judge, 228 Mich. 225, 199 N. W. 618. Defendant Pardon reviews by writ of error. Plaintiffs claim it was the duty of Mr. Pardon to supervise the use made by the tenant of the property rented from the regents, and prevent the tenant from endangering plaintiff's property. It is claimed the tenant of the regents built his barn within about three feet of rear lot line and within about 4 feet of plaintiffs' barn, fastened some pieces of 2x4 to plaintiffs' barn in violation of the housing code of the state, piled combustible material between the barns and permitted children to frequent the barn. The day of the fire a 12 year old boy, it is claimed, came out of the barn with a cigarette and soon thereafter the Rising barn was discovered on fire, and the fire spread to and destroyed plaintiffs' barn. What negligence of defendant Pardon was the proximate cause of this fire? Assuming, but not deciding, that the liability of Mr. Pardon is the same as that of an owner, did the duty rest upon him to so supervise the use of the barn by the tenant as to prevent children from being permitted therein, or to prevent some trespassing boy from visiting the premises and smoking therein? We think not.

A landlord is not liable for the use of premises by a tenant in such a way as to occasion damage to a neighboring proprietor, merely because there was a possibility of their being so used. The wrong in such a case is that of the tenant, and the liability therefor will stop with the tenant. The erection of the barn was lawful and its use legitimate. Any abuse of rights of neighboring proprietors in the use of the barn by the tenant was not chargeable to the landlord, unless such abuse was sanctioned by the landlord; and such sanction could not rest upon implied notice and acquiescence. If the fastening of the 2x4 to plaintiffs' barn was wrongful, still there is nothing in the case to show defendant...