Krueger v. Ferrant
| Decision Date | 18 August 1882 |
| Citation | 13 N.W. 158,29 Minn. 385 |
| Parties | Henry Krueger v. Martin Ferrant |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Hennepin county, Lochren, J., presiding, refusing a new trial, after a verdict for plaintiff. The case is stated in the opinion.
Order reversed, and new trial granted.
Baxter Grethen & Penney, for appellant.
Benton Benton & Roberts, for respondent, cited Marshall v Cohen, 44 Ga. 489; Glickauf v. Maurer, 75 Ill 289; Kirby v. Boylston Market Ass'n, 14 Gray, 249; Shipley v. Fifty Associates, 101 Mass. 251; Same v. Same, 106 Mass. 194; Priest v. Nichols, 116 Mass. 401; Readman v. Conway, 126 Mass. 374; Toole v. Beckett, 67 Me. 544; Scott v. Simons, 54 N.H. 426.
The plaintiff leased and occupied the lower story of defendant's building, in the city of Minneapolis. Separate rooms in the second story were occupied by other tenants. It does not appear that any of the tenants had control of the roof, or were charged with the duty of repairing it, or that there was any covenant or agreement to repair by either party to any of the leases under which the several tenements in the building were occupied. The roof having become defective and out of repair, water had at divers times during rain storms leaked through into plaintiff's store, and caused some damage. Defendant had due notice of this, as well as of the condition of the roof, but he had neglected to make any repairs. Finally, at the time complained of, as the result of a severe storm, a large quantity of water leaking through the roof passed through the ceiling of plaintiff's store, greatly damaging his stock of goods, consisting of guns, ammunition, etc. The plaintiff alleged in his complaint a promise and undertaking by defendant, in the contract of lease, to keep the roof in repair, but the issue as to any express agreement so to do was excluded from the jury by the court for insufficiency of proof. But, independently of any express contract or agreement to repair, the court instructed the jury that the landlord was bound to so care for the roof, which was under his own charge, that his tenant should not be injured by his neglect. "In other words, the defendant was bound to take such care in respect to this roof, and the keeping of it in repair, as to protect the store below from any danger of being drenched by water, as a prudent man of ordinary intelligence would do if the property were all his own." The defendant's exceptions to these instructions present the only question demanding our consideration.
1. Where several apartments are leased, as in this instance, by the owner of the premises to different tenants under a common roof, doubtless, in the absence of a stipulation to the contrary, those parts of the premises, including the roof, not expressly included in the leases, will be deemed to remain in the possession and control of the landlord. Stockwell v. Hunter, 11 Met. 448, 455, et seq. And tenements under a common roof may be as essentially distinct when one is under the other, as when one is by the side of the other. Proprietors, etc., v. Lowell, 1 Met. 538; Cheeseborough v. Green, 10 Conn. 318. The court rightly instructed the jury in this case that the roof of the demised premises was "in the charge of the landlord."
2. The rule appears to be well established that there is no implied covenant on the part of the landlord to make repairs, or that the premises are or will prove to be suitable for the tenant's use or business. Foster v. Peyser, 9 Cush. 242; Witty v. Matthews , 52 N.Y. 512; Howard v. Doolittle, 3 Duer 464; Wilkinson v. Clauson, ante, p. 91. There seems to be no sound reason why this rule should not extend in like manner to portions of the premises not expressly demised to the tenant, but which are necessary for his use or protection; as, in this case, the common roof. Pomfret v. Ricroft, 1 Saund. 321, Chauntler v. Robinson, 4 Exch. 163; Doupe v. Genin, 45 N.Y. 119; Brewster v. De Fremery, 33 Cal. 341; Walker v. Gilbert, 2 Robt. 214; Taylor on Landlord & Tenant, (7th Ed.) §§ 175a, 328. The authorities generally agree that the parcel tenant or owner may, in such case, have an easement of ingress and egress over the common passage-ways, and of shelter in the roof. But this does not throw upon the landlord the burden of actively undertaking to keep the building or any part of it in repair, unless he has agreed to do so, or unless it is in danger of becoming a nuisance. In Chauntler v. Robinson, supra, the court decide that the only obligation cast upon the owner is to prevent its becoming a nuisance.
The tenant is the party most interested in understanding the risks which he will assume in exposing his goods to injury from the elements. It is incumbent on him to exercise proper care and precaution in the selection and leasing of tenements to be occupied by him. It is his right, and ordinarily his duty, to insist that he be permitted to inspect those portions of the premises which may be important to him, and to require the proper stipulations in the contract for his protection. Taylor on Landlord & Tenant, (7th Ed.) § 175a; Carstairs v. Taylor, L. R. 6 Exch. 217; Keates v. Earl of Cadogan, 10 C. B. 591, 601. Since, then, defendant is not liable to plaintiff upon contract, express or implied, his liability, if any, must arise from the fact of his ownership and control of the upper story of the building.
3. This brings us to the consideration of the ground upon which the court, at the trial, substantially placed the defendant's liability in this case, and that is the application to the owner or occupant of the upper story of the maxim sic utere tuo ut alienum non loedas. In the application of this principle it is deemed immaterial whether the relation of the occupant of the lower story to the owner of the upper story and roof be that of tenant or distinct owner. 2 Wait's Actions & Def. 745. This maxim restrains a man from using his own property to the prejudice of his neighbor but is not usually applicable to a mere omission to act, but rather to some affirmative act or course of conduct which amounts to or results in an invasion of another's rights. Exceptional cases need not be discussed here. Pomfret v. Ricroft, (note,) supra; Broom, Leg. Max. 366. In Cheeseborough v....
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