Miller v. Fisher

Worthington, J., delivered tie opinion of tie Court. Tie appellant and appellee in this case are the owners of adjoining properties, located on Dallas Street in Baltimore City. ⁹² The suit was brought by the latter against the former to recover damages for alleged injuries caused to plaintiffs property by the overflow, from alleged defective and insufficient drainage pipes of the defendant, of foul and polluted waters toward and upon the property of the plaintiff. The material allegations of the declaration are substantially as follows: That during a period of time beginning on or about the 1st of June, 1906, and continuing to December 3, 190Y, the defendant created, continued and maintained a nuisance on his premises, and was still continuing and maintaining said nuisance, to wit, a broken, disconnected and entirely insufficient drain and drainage pipes to properly carry off the refuse water, waste and filth from the various portions of the defendant’s property, and that refuse matter and surface water from defendant’s premises were not properly confined in suitable drain pipes, but were absorbed into the earth and permeated, passed and flowed along and through the earth towards and in the direction of the plaintiff’s property, and made their way into the yard and dwelling rooms of the plaintiff, thereby filling the houses with impure, obnoxious and polluted water in great and continued volume, and causing the plaintiff’s property to become so tainted and foul with unhealthful and impure air and gases, as to. render it dangerous to inhabit the houses, and further causing said property to depreciate in value. The declaration also alleged that both the defendant’s and plaintiff’s properties were, during the existence of the nuisance complained of, occupied by tenants; that notice had been given defendant of the existence of the nuisance and the injury sustained thereby, but that defendant failed to abate the nuisance, but negligently repaired the insufficient drains, and refused to supply sufficient drains to carry off the waters from her premises, so as to prevent injury to the plaintiff’s property.

A demurrer was entered to the declaration, upon the ground that, as it appeared by the declaration that the defendant’s, premises were occupied by tenants, the landlord was not re ⁹³ sponsible for any defects therein, unless it was shown that such defects existed prior to the beginning of the tenancy, and that the landlord had or ought to have had knowledge of the same, citing Taylor on Landlord and Tenant, page 175, where it is said by that author: “Possession of property is what determines liability. When the owner has parted with his control, the tenant has the burden of the proper keeping of the premises, and. for any nuisance then found thereon, the tenant is the party responsible, and not the landlord.” This is undoubtedly well-established doctrine, and so recognized by this Court. Smith v. Walsh, 92 Md. 518 . But it is also true that where injuries result to a third person from the faulty or defective construction of the premises at the time of their rental, or because they then contain an incipient nuisance, which only becomes active by the tenant’s ordinary use of the premises, the landlord is still liable notwithstanding the lease.

Taylor, L. & T., see. 175. In this case the allegations of the declaration are to the effect that the defendant “created, continued and maintained a nuisance” on the demised premises, and is “still continuing and maintaining said nuisance.” Such allegations were sufficient to justify the learned Judge in the Court below in overruling -the defendant’s demurrer, in so far as it was based upon the contention that the tenant alone was responsible for any