Opinion
February 10, 1911.
John M. Gardner [ Jonathan Deyo with him on the brief], for the appellant.
Stephen C. Baldwin, for the respondents Excelsior Brick Company and others.
Abram F. Servin, for the respondent J. Esler Eckerson.
Present — JENKS, P.J., BURR, THOMAS, CARR and RICH, JJ.
The plaintiff appeals from several judgments of the Trial Term in Kings county, entered in this action, which dismissed her complaint at the close of her evidence as against respective defendants. The action was brought to recover damages for personal injuries, and liability was asserted against all of the defendants on the ground that they maintained a public nuisance through which the plaintiff suffered injury. The question of law involved in this appeal is "whether admitting all the facts presented, and giving to the plaintiff the advantage of every inference that can properly be drawn from the facts presented, an issue of fact is presented for the determination of the jury." ( Kraus v. Birnbaum, 200 N.Y. 130, 133, and cases cited.)
It appears that on the night of January 8, 1906, the plaintiff, together with her husband and children, occupied a small brick house located near a public highway in the village of Haverstraw known as Liberty street. This street was on the east side of the house, about fifteen feet away. The Beauchamp family had occupied this house some seven years prior to the night referred to, and had rented it during that period from the defendant the Excelsior Brick Company on what appears to have been a monthly hiring. The house was located near the crest of a deep excavation made by the defendant the Excelsior Brick Company a number of years before to obtain clay for brickmaking. When the plaintiff's family went originally to reside in the house in question the east side of the house was distant from the crest of the pit about twenty feet, but in course of time, under the action of rain and snow, the crest neared the house until it became but about three feet distant. From the crest of the pit, as it adjoined the house, to its bottom there was a distance of about sixty feet, shelving sharply at an angle of about ninety-five degrees. This pit extended to the north, northeast and northwest of the plaintiff's house. Adjoining it to the north, and separated only by an invisible line, was another pit situated upon what is known as the "Gillies property," and similar in characteristics as to depth, and next to the Gillies property on the north, and immediately adjoining, was still another pit on what was known as the Eckerson property. All three pits formed together one very large and very deep excavation, the crest of which fringed upon various public highways of the village. The topsoil of the place where the pits were located was originally sand about twenty feet in depth; the lower stratum of the soil was moist clay, growing wetter as the depth increased. The defendant the Excelsior Company had stopped digging in its pit in 1902, at which time it did a little digging, but it had practically stopped taking clay in 1899. From the Gillies pit clay was taken up to December, 1905, and in the farther adjoining pit of Eckerson clay appears to have been taken continuously. From time to time there occurred slides along the banks of these pits, carrying away large quantities of soil and greatly extending the area and circumference of the excavations. Some of these slides had carried down certain public streets in the immediate neighborhood. In 1902 a crack appeared in the bank and crest of the westerly side of the Gillies and Excelsior pits, which ran southerly but irregularly towards the neighborhood of the plaintiff's house. Late at night on January 8, 1906, a great slide happened on the westerly side of the pits, carrying down a large part of the westerly crest of the excavation and extending southerly and easterly to the premises of the plaintiff, and as a result the plaintiff's house, together with a portion of Liberty street adjoining it, fell into the deep hole of the Excelsior Company. At the time of the caving-in of her house the plaintiff, who was in the house at the moment, underwent a harrowing experience and suffered severe personal injuries. In this action she seeks to recover for these injuries on the ground that the various defendants maintained a nuisance, which in some of its aspects was public and in others private. In this slide of January 8, 1906, others were injured and some were killed at various places affected by the falling in of the banks, and this court has been called upon to consider the rules of law applicable to the facts as presented in each record. In Adlin v. Excelsior Brick Co. ( 129 App. Div. 713) a man who was standing upon a public highway known as Rockland street was carried down and killed by the subsidence of the highway through this very slide. It was held that it was a question for the jury to determine whether the defendant's excavation had removed the lateral support of the highway to the extent of creating a public nuisance, and a judgment dismissing the complaint was reversed and a new trial was ordered. This court then cited as an authority for its holding its earlier decision in Village of Haverstraw v. Eckerson, Nos. 1 2 ( 124 App. Div. 18) where it was held that if the excavation destroyed the proper lateral support of a public highway it constituted a public nuisance, and could be enjoined by a suit in equity brought by the village.
Many of the parties defendant in this action have no community of interest in the happening which caused injury to this plaintiff and their participation, if any, in its alleged causes are separate and distinct, and it becomes necessary, therefore, to consider separately as to each defendant the case which the plaintiff attempted to make out by her proofs at the trial. The defendant Eckerson owned and maintained the pit farthest north from the plaintiff's house. If the causation of the slide or cave-in which injured the plaintiff can be traced directly to the pit on the Eckerson property, liability would attach to Eckerson, notwithstanding the distance of that pit from the plaintiff's house. (1 Wood Nuis. § 207, and cases cited.) In the record before us there is no proof tracing any causation for this particular accident to the Eckerson pit, and an attempt to impute liability upon the proofs here would be mere speculative guesswork. Eckerson, however, had acquired ownership of the Gillies pit five days before the slide of January 8, 1906, and it is contended that he thereby became liable for any cause contributed by the excavation on the Gillies property. It is true that it has been held that, if one acquire lands on which a nuisance exists, he becomes liable for the maintenance of the nuisance after his purchase, but this rule is subject to a necessary qualification that such liability does not attach until the purchaser has notice of the nuisance and has had a reasonable time in which to abate it. ( Ahern v. Steele, 115 N.Y. 203; Conhocton Stone Road v. Buffalo, N.Y. E.R.R. Co., 51 id. 573.) On the proofs before us it would have been physically impossible for Eckerson to have abated whatever nuisance existed on the Gillies property in the five days of his ownership thereof. As to him, therefore, the complaint was dismissed properly. Gillies was sued as the one who had authorized the excavation on what is called the "Gillies pit." The westerly crest of this pit caved in on the night of January 8, 1906. There is no evidence, however, to show on what property the subsidence began, nor whether a subsidence on the Gillies bank caused the caving in of the Excelsior bank, or, on the contrary, followed and was caused by a subsidence of the latter bank. This question, on the record in this case, is left to be solved by mere speculation. There was not enough evidence, if any at all, to require a submission to the jury of the question of Gillies' liability for the plaintiff's injuries. We are brought now to a consideration of the most important and troublesome question in the case, viz., the liability of the defendant the Excelsior Brick Company and its general manager and one of its directors, who were made parties defendant.
The case at bar differs in its essential facts from that of Adlin v. Excelsior Brick Co. ( supra). There the person killed by the caving-in was on a public highway and was carried down by the subsidence of the highway. Here the plaintiff was in a house distant considerably from the place of the Adlin accident. This house and its yard abutted on another public highway, Liberty street. According to the proofs in this case the house fell in before Liberty street was affected by the slide. The house fell in, but the highway subsided after, and because the land on which stood the plaintiff's house had fallen in, and thus destroyed the lateral support of the highway. The same cause which produced the falling in of the highway at Liberty street likewise brought about the caving in of the land occupied by the plaintiff, but the effects of this cause were not simultaneous but, on the contrary, subsequent and progressive in order. However, if the plaintiff may not claim injury from a public nuisance which affected the lateral support of a public highway, she may, perhaps, rest upon a liability for a private nuisance which affected the lateral support of the land occupied by herself and family. This claim requires further consideration. Her case, however, is complicated by the question of the application of the principle underlying the maxim " volenti non fit injuria." She occupied the land in question under a contractual relation between her husband as tenant and the Excelsior Company as landlord. The nuisance which caused her injuries existed when she came to the premises. She was familiar with the neighborhood and had known of several preceding slides. The crest of the bank behind her house was growing narrower year by year through the effect of rain and snow. The peril of occupying the premises was open and unmistakable. Could she so expose herself to an open danger without affecting what otherwise would be her legal right? Counsel have not furnished this court with any precedents to aid in the answer to this question. Perhaps there are none, based upon any similar state of facts, at least this court, after some labor, has found none. There are many cases which define the legal relations between those maintaining nuisances and the owners or occupants of lands in the neighborhood of the nuisance. All of these cases, however, relate to circumstances where the parties injured do not hold or occupy the adjoining lands under the relation of a tenant to the party creating or maintaining the nuisance. It has been held generally that it is not contributory negligence upon the part of an adjoining owner to use his land, though injury to its use is to be expected from an existing nearby nuisance.
In Campbell v. Seaman ( 63 N.Y. 568) there is a very lucid and elaborate consideration of the rule affecting one who "comes to a nuisance." In that case the nuisance was a brick-burning furnace which generated noxious gases which injured the plants and property of one owning and occupying land near by. The nuisance existed before the use of the adjoining land began, and it was held that this fact did not deprive the party injured of a remedy at law or in equity, in the absence of any prescriptive right to maintain the nuisance. The keynote of this decision is to be found in the statement of EARL, J., as follows: "One cannot erect a nuisance upon his land adjoining vacant lands owned by another and thus measurably control the uses to which his neighbor's land may in the future be subjected. He may make a reasonable and lawful use of his land and thus cause his neighbor some inconvenience, and probably some damage which the law would regard as damnum absque injuria. But he cannot place upon his land any thing which the law would pronounce a nuisance, and thus compel his neighbor to leave his land vacant, or to use it in such way only as the neighboring nuisance will allow."
In Bly v. Edison Electric Illuminating Co. ( 172 N.Y. 1) the plaintiff rented premises near an electric lighting plant and was injured by smoke and cinders emitted therefrom. The lease under which the premises were occupied was renewed by the plaintiff during the existence of the neighboring nuisance. The plaintiff, as occupant of the premises in question, brought an action to abate the nuisance and to recover past damages. She obtained a judgment enjoining the continuance of the nuisance and for damages. On appeal to the Appellate Division, First Department ( 54 App. Div. 427), the injunction was vacated and the damages reduced to the nominal amount of six cents. On a further appeal to the Court of Appeals the judgment of the Appellate Division was reversed on the question of damages, the question of an injunction being eliminated because of the removal of the plaintiff from the premises during the pendency of the appeals. The principle declared by the court was that the renewal of the lease during the existence of the nuisance could not be deemed an acquiescence in its continuance because the nuisance arose from the operation of the electric lighting plant, and the tenant of the neighboring premises had a legal right to presume that an unlawful method of operation would not continue. These two cases are typical of many that are to be found in the books on the question of "coming to a nuisance."
This line of cases, however, does not cover a situation where one goes to an open nuisance and leases, from the party maintaining the nuisance, a part of the premises upon which the nuisance exists and enters into occupation of the premises. The principles governing such a situation are to be found in the law affecting the relations of landlord and tenant. It is true that the plaintiff was not the tenant of the defendant in the strict sense of the word. She was, however, the wife of the tenant, and the premises were let for family occupancy. Her rights against the landlord and its duties towards her, so far as the safety of the demised premises were concerned, were as large as, and no larger than, the rights of and the duties towards her husband, the tenant. (24 Cyc. 1119, and cases cited.)
It is plain beyond question that a tenant who leases real property which is openly ruinous or dilapidated, or perilously located, has no claim in law against the landlord for injuries occasioned by these circumstances, in the absence of fraud or warranty, unless the landlord actively interferes in such manner as to increase the existing hazards during the term of the lease. This proposition is so elementary as to need little or no citation of authority. ( Davidson v. Fischer, 11 Col. 583.) In the case at bar the landlord had done absolutely nothing in the adjoining pit for four years before the accident. During these four years the tenant had renewed the letting from time to time in face of the open peril and with full notice of the existing conditions. Whether these conditions constituted a public or a private nuisance was immaterial so far as his legal rights were concerned against the landlord arising from mere occupation and use of the demised premises. For example, at common law it is a public nuisance to maintain near a public highway a ruinous house which may fall into the highway and injure a wayfarer. If, however, one enter knowingly into the occupancy of such a house as a tenant, and the house subsequently fall down into the highway and injure both a wayfarer and the tenant, the legal right of either against the one who maintained the public nuisance rests upon distinct grounds; one may have a remedy and the other have none.
It follows, therefore, that the judgments should be affirmed, with costs.
Judgments unanimously affirmed, with costs.