The opinion of the court was delivered by
Woodward, J.
In the case of Godley v. Hagerty, 8 Harris 387, we held the present defendant responsible for’ an injury occurring at the same time and resulting from the same causes as that of which the plaintiffs in this action complain. It was shown in that case as in this that Mr. Godley had rented his building iff Granite street to the government of the United States for a public-warehouse, and that the agents of the government were engaged-in storing sugar when it fell down, killing two men, breaking the-arm of Hagerty, and damaging the goods of the present plaintiffs. In two particulars only, this case differs from Hagerty’s. The-plaintiffs here were importing merchants, and the injury was to-their goods. Hagerty was a common labourer in the service of the government, and his injury was personal. But these diversities make’ no difference in the principles' of law applicable to the two cases. If, as was urged in the argument, the government’was-[116]*116bound to provide safe storage for the plaintiffs’ goods whilst they were held in bond, it was equally due to Hagerty that he should not he set to work in an unsafe storehouse, to the peril of life and limb. If, therefore, the present plaintiffs, by reason of their relations to the government, were entitled to seek redress in that quarter, so was Hagerty. As the employee of the government, his relations were quite as direct and intimate with the public authorities — his privity quite as close — as any which the plaintiffs sustained, whilst the character of his injury‘gave him a superior right to compensation. Nor did we decide that the government was not liable to Hagerty. We decided only that Godley was. Counsel do not therefore distinguish this case from Hagerty’s ■when they prove that these plaintiffs might have sought redress from the government. Let it be granted that they might, does it follow that Grodley is not liable to them? By no means. An injured party is often entitled to redress against more than one wrongdoer, and it is never an objection to his action that he has passed by the intermediate agents of the mischief, and charged the responsibility home upon the author of the evil.
This case, then, incapable of being distinguished in principle from Hagerty’s, ought to be considered as ruled by it. All the material facts were identical in the two cases. Judge Bell, not more distinguished for his learning than for the care and ability with which he tried causes at Nisi Prius, stated the principles on which the former case rested; and his judgment, after a severe professional criticism, and full consideration in this court, received our deliberate and unanimous sanction. And in the three years that have elapsed since that decision was pronounced, we have seen no occasion to question its principles, but experience and observation have tended rather to confirm them. Such is the eagerness of capitalists for large rewards, that when they undertake to build for the profits of rents, the temptation is strong to cheapen and slight the work. The safety of life and property is lost sight of in the dazzling prospect of a large rent from a small outlay. Foundations are put down and walls run up in such haste and with such materials as to be wholly inadequate for the purposes designed; the defects all the more pernicious and unpardonable, because concealed; and now and then the community are appalled by some shocking catastrophe involving loss of lives and limbs and property. The cupidity which is at the bottom of the mischief, true to nothing but its own instinct, will of course seek to charge the consequences of its folly on the tenant, as if because he was deceived, the original guilt was cancelled. Where the tenant has been guilty of negligent or improper use of the building, he is undoubtedly liable to parties injured by its fall, and even where there has been no negligence on his part, we do not say he is exempt, for that case has not yet occurred; but where, [117]*117as in the case before us, it is found, on abundant proof, there was no negligence either in the tenants or the plaintiff, it is a salutary rule of law that holds the owner answerable for his gross neglect in constructing and renting an insecure building. "We have no thoughts of relaxing or qualifying a rule so obviously just and politic; but if we had, we would-hardly do it in a case involving the very same circumstances to which we so recently applied it.
■ It may be proper, however, on account of the vehemence with ■ which the rule ismssailed,' to examine its foundations a little more minutely than was done in the former case, to see if it be not well grounded in accepted principles and authorities of law.
The lease, in this case, contained no express covenant or condition, that the building was of any particular capacity or quality, and-none is to be implied. The government took it for what it is ■ called in the lease, a “ five story store,” and the only covenant which is to be implied, is that for quiet enjoyment. There was a while that the English courts acted on the principle that it was an ■implied condition of every lease, that the property was reasonably ■fit for the purpose for which it was let. As that a dwelling-house was in such decent repair as to be fit for habitation, Salisbury v. Marshall, 4 Car. & Payne 65, 19 E. C. L. R. 275; that its ■walls were safe, Edwards v. Etherington, Ryan & Moody 268, 21 E. C. L. R. 435; that the premises should not become untenantable by the bursting of a privy, Cowl v. Goodwin, 9 Car. & Payne 378, 38 E. C. L. R. 162; that the house was not infested with bugs, Smith v. Marrable, 11 M. & W. 5: but they have receded from all this, and hold- now, fhat in a demise of land, there is no implied obligation on the part of the lessor, that it shall be fit for the purpose for which it was taken; Sutton v. Temple, 12 M. & W. 52; nor in the lease of a house, that it was at the time of the demise, or should be at the commencement of the term, in a reasonably fit state and condition for habitation.
In the case of Arden v. Putten, 10 M. & W. 321, the house became uninhabitable and utterly useless to the tenant by reason of original defects in the foundations; and it was held that the tenant could not, in consequence thereof, throw up the house and refuse to pay rent. “ The tenant ought,” said Baron Alderson, “ to examine the house before he takes it.” If the present action rested on the ground of contract, express or implied, it could not be sustained. Counsel argued with great propriety that if an implied warranty of the quality of a house could be deduced from a lease of it for a term, it would arise, likewise, from a conveyance of the fee, and run with the land, which would restrain alienation. Some torts result from contracts; but that for which this action was brought, has no such foundation. Its root is in the malfeasance of the defendant — in the misuse of that which is his own— not in the breach of any condition, express or implied: It is [118]*118apparent, therefore, that the English eases adverted to, all of which proceed on contract, do not touch the ground assumed in Hagerty’s case and the present.
The underlying principle of this case is found in that great .maxim of the common law, sie utere tuo ut alienum non Imdas. This is ,a principle of Universal obligation, and it attended Mr. Godley .when he undertook to cover his lot in Granite street with .storehouses for the use of tenants.
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The opinion of the court was delivered by
Woodward, J.
In the case of Godley v. Hagerty, 8 Harris 387, we held the present defendant responsible for’ an injury occurring at the same time and resulting from the same causes as that of which the plaintiffs in this action complain. It was shown in that case as in this that Mr. Godley had rented his building iff Granite street to the government of the United States for a public-warehouse, and that the agents of the government were engaged-in storing sugar when it fell down, killing two men, breaking the-arm of Hagerty, and damaging the goods of the present plaintiffs. In two particulars only, this case differs from Hagerty’s. The-plaintiffs here were importing merchants, and the injury was to-their goods. Hagerty was a common labourer in the service of the government, and his injury was personal. But these diversities make’ no difference in the principles' of law applicable to the two cases. If, as was urged in the argument, the government’was-[116]*116bound to provide safe storage for the plaintiffs’ goods whilst they were held in bond, it was equally due to Hagerty that he should not he set to work in an unsafe storehouse, to the peril of life and limb. If, therefore, the present plaintiffs, by reason of their relations to the government, were entitled to seek redress in that quarter, so was Hagerty. As the employee of the government, his relations were quite as direct and intimate with the public authorities — his privity quite as close — as any which the plaintiffs sustained, whilst the character of his injury‘gave him a superior right to compensation. Nor did we decide that the government was not liable to Hagerty. We decided only that Godley was. Counsel do not therefore distinguish this case from Hagerty’s ■when they prove that these plaintiffs might have sought redress from the government. Let it be granted that they might, does it follow that Grodley is not liable to them? By no means. An injured party is often entitled to redress against more than one wrongdoer, and it is never an objection to his action that he has passed by the intermediate agents of the mischief, and charged the responsibility home upon the author of the evil.
This case, then, incapable of being distinguished in principle from Hagerty’s, ought to be considered as ruled by it. All the material facts were identical in the two cases. Judge Bell, not more distinguished for his learning than for the care and ability with which he tried causes at Nisi Prius, stated the principles on which the former case rested; and his judgment, after a severe professional criticism, and full consideration in this court, received our deliberate and unanimous sanction. And in the three years that have elapsed since that decision was pronounced, we have seen no occasion to question its principles, but experience and observation have tended rather to confirm them. Such is the eagerness of capitalists for large rewards, that when they undertake to build for the profits of rents, the temptation is strong to cheapen and slight the work. The safety of life and property is lost sight of in the dazzling prospect of a large rent from a small outlay. Foundations are put down and walls run up in such haste and with such materials as to be wholly inadequate for the purposes designed; the defects all the more pernicious and unpardonable, because concealed; and now and then the community are appalled by some shocking catastrophe involving loss of lives and limbs and property. The cupidity which is at the bottom of the mischief, true to nothing but its own instinct, will of course seek to charge the consequences of its folly on the tenant, as if because he was deceived, the original guilt was cancelled. Where the tenant has been guilty of negligent or improper use of the building, he is undoubtedly liable to parties injured by its fall, and even where there has been no negligence on his part, we do not say he is exempt, for that case has not yet occurred; but where, [117]*117as in the case before us, it is found, on abundant proof, there was no negligence either in the tenants or the plaintiff, it is a salutary rule of law that holds the owner answerable for his gross neglect in constructing and renting an insecure building. "We have no thoughts of relaxing or qualifying a rule so obviously just and politic; but if we had, we would-hardly do it in a case involving the very same circumstances to which we so recently applied it.
■ It may be proper, however, on account of the vehemence with ■ which the rule ismssailed,' to examine its foundations a little more minutely than was done in the former case, to see if it be not well grounded in accepted principles and authorities of law.
The lease, in this case, contained no express covenant or condition, that the building was of any particular capacity or quality, and-none is to be implied. The government took it for what it is ■ called in the lease, a “ five story store,” and the only covenant which is to be implied, is that for quiet enjoyment. There was a while that the English courts acted on the principle that it was an ■implied condition of every lease, that the property was reasonably ■fit for the purpose for which it was let. As that a dwelling-house was in such decent repair as to be fit for habitation, Salisbury v. Marshall, 4 Car. & Payne 65, 19 E. C. L. R. 275; that its ■walls were safe, Edwards v. Etherington, Ryan & Moody 268, 21 E. C. L. R. 435; that the premises should not become untenantable by the bursting of a privy, Cowl v. Goodwin, 9 Car. & Payne 378, 38 E. C. L. R. 162; that the house was not infested with bugs, Smith v. Marrable, 11 M. & W. 5: but they have receded from all this, and hold- now, fhat in a demise of land, there is no implied obligation on the part of the lessor, that it shall be fit for the purpose for which it was taken; Sutton v. Temple, 12 M. & W. 52; nor in the lease of a house, that it was at the time of the demise, or should be at the commencement of the term, in a reasonably fit state and condition for habitation.
In the case of Arden v. Putten, 10 M. & W. 321, the house became uninhabitable and utterly useless to the tenant by reason of original defects in the foundations; and it was held that the tenant could not, in consequence thereof, throw up the house and refuse to pay rent. “ The tenant ought,” said Baron Alderson, “ to examine the house before he takes it.” If the present action rested on the ground of contract, express or implied, it could not be sustained. Counsel argued with great propriety that if an implied warranty of the quality of a house could be deduced from a lease of it for a term, it would arise, likewise, from a conveyance of the fee, and run with the land, which would restrain alienation. Some torts result from contracts; but that for which this action was brought, has no such foundation. Its root is in the malfeasance of the defendant — in the misuse of that which is his own— not in the breach of any condition, express or implied: It is [118]*118apparent, therefore, that the English eases adverted to, all of which proceed on contract, do not touch the ground assumed in Hagerty’s case and the present.
The underlying principle of this case is found in that great .maxim of the common law, sie utere tuo ut alienum non Imdas. This is ,a principle of Universal obligation, and it attended Mr. Godley .when he undertook to cover his lot in Granite street with .storehouses for the use of tenants. The application of this principle is illustrated by innumerable cases in the books. Setting •aside all.those that relate to mere personal rights and chattel interests, I select a few to showhow it applies to an owner of real , estate. And here again is a large class of cases such as grow out of obstructions of private ways, diversions of watercourses, and common -nuisances, that may be omitted. But there is a class of c.ases in which the owner of real estate has been held liable in damages for that which it was perfectly lawful for him to do on his own premises, but which, done without that skill and prudence which he was bound to employ, has worked injury to another. Thus in Vaughn v. Menlove, 7 Car. & Payne 525, 32 E. C. L. R. 613, the plaintiff brought case to recover damages for the loss of two cottages burnt down by the spontaneous combustion of defendant’s hay-rick defectively erected on his own land. Patteson, J., directed the jury to inquire whether, defendant had acted as a man of ordinary skill and prudence would have acted, or whether, through his negligence and carelessness, the plaintiff’s property had been consumed. It was not enough, he said, that the defendant acted bona fide according to the best of his own individual judgment — a doctrine which the whole court said, in affirming the judgment, would utterly preclude any certain and intelligible rule on the subject.
In exact agreement with this ease, Judge Knox, on the trial of the case under consideration, first directed the attention of the jury to the question whether the defendant caused his building to be constructed in a proper manner, and with good materials, and by competent workmen. These things it was most clearly his duty to do as a man of ordinary prudence, and these things the jury have found he did not do. No matter how sincere the self-confidence that prompted him to superintend the work himself, and ■save the expense of a master builder, and to use imperfect and unfit materials,'the bona fides, even optima fides, could not relieve him from the clear legal duty that was on him to act in a “ proper manner, and with good materials and competent workmen.”
But, to proceed with the authorities: Tubervil v. Stampe, 1 Salkeld 13, S. C. Ld. Raymond 264, was an action on the case for negligently keeping fire by the defendant in elauso suo, whereby a neighbour’s corn was burnt. After verdict for the plaintiff, it was objected that, by the custom of-the realm, liability for fires ex[119]*119tended only to those in the house or curtilage which were under the power of the .owner; but, said the court, the fire in his field is his fire as well as that in his house; he made it, and he must see it does no harm, and answer the damage if it does. To the same effect is the case of Barnard v. Poor, 21 Pick. 378, which was a recovery also for damage from fire kindled on the defendant’s own land.
In Russell v. Prior, 1 Ser. & R. 460, a tenant for years erected a wall which darkened the ancient .windows of a neighbour, and .then made an underlease to J. S. The party injured brought suit for the nuisance and recovered damages, and then .brought .a suit for the continuance. Both actions were against the first -tenant, the lessor in the last le.ase, and the. question was whether after recovery for the erection, an action would lie against him .for the continuance after he had leased to another — et per Our. It lies; for he transferred it with ,the original wrong, and his demise affirming the continuance of it; — he hath also rent as a. consideration for the continuance, and therefore, ought to answer the damage it occasions.”
That a party for whose benefit work has been negligently done, is answerable for consequences, was strikingly illustrated in the case of Bush v. Steinman, 1 Bos. Pul. 403. The defendant . had purchased a dilapidated house by the way-side, which he had never occupied. He contracted with the surveyor of buildings to repair it. The surveyor contracted with a carpenter to do the whole labour, and to furnish all materials. The carpenter employed a bricklayer under him, and he again contracted for a quantity of lime with a lime burner, by whose servant the lime ■was deposited in the road in front of the defendant’s house. The plaintiff and his wife passing in a chaise, were.upset and injured by reason of the lime in the highway. On great consideration the defendant was held liable, not on the ground that the relation of master and servant existed between him and all of the employees, but because he was the owner of the premises for whose . benefit the nuisance was created, and having suffered it to remain . in front of his building, and between it and the middle of the highway to which his premises presumptively extended, he ^vas answerable for it. ' .
So, in Randelson v. Murray, 8 Adol. & Ellis 109, 35 E. C. L. R. 342, a warehouseman at Liverpool, employed a master porter to remove barrels from his warehouse. The master porter employed his own men and tackle, and through the negligence of the men the tackle failed, and a barrel fell, and.injured the plaintiff— held that the warehouseman was liable in case for the injury.
In Stone v. Cartwright, 6 Term R. 411, Lord Kenyon, in ruling that a mere steward of an owner of real estate is not responsible for the acts of the men employed by him for the owner, said, [120]*120'££ in all these cases I have ever understood that the action must : either be brought against the hand committing the injury, or 'against the owner for whom the act was done.”
' In the case of the Mayor, &c., of the City of New York v. Bailey, 2 Denio 433, we have the principle distinctly asserted and .’indicated very much at large, that the owner of real estate is responsible for the negligence of those appointed by public au- ■ thority to make erections on it, for the owner’s benefit. The city of New York owned the Croton dam, which had been erected to ' supply the city with water. - An unusually high flood in the river ' swept the dam away to the injury of the plaintiff, a riparian owner below. He sued the city, and showed that the dam had been defectively constructed. The answer was that the dam had been 'erected under the supervision of and by the Water Commissioners, -who were public officers, appointed by the Governor and Senate, ■' and over whom the city had no control; but on the ground that - they acted at the instance and for the benefit of the corporation, '-the city was held liable. In Spencer v. Campbell, 9 W. & Ser. 32, this court held the owners of' a . steam grist-mill liable for -a -customer’s horse killed by the bursting of a boiler.
Authorities and analogies might be multiplied, but these are ; sufficient to show that when we apply the principle sic utere tuo, &c., ■ to this defendant in the circumstances of his case, we inaugurate no novelty.
• He knew, for he had been expressly told, that 'if he leased his • storehouse to the government, it would be used for heavy storage. ■'He leased it to the government without any stipulations against heavy storage. The learned judge -was in no error, then, in say'ing, not by way of construing the lease, but as a matter of fact, ■ that if the' evidence was believed, the building was leased for heavy storage, and the conclusion of law was a necessary one, that it -might legally be used as such., But before it was heavily stored, ■it fell down through inherent defects. Had it fallen before it ' was used at all — had the superstructure been so defective as to be ■ unable to sustain itself — it would have been indictable as a com- • mon nuisance, and nobody doubts that the owner at whose instance •it was erected would have been-answerable to individuals for the damage occasioned; but the wrong consisted not in erecting walls ■ incapable of standing alone, but in building and renting the store ' for a specific purpose for which it was unfit and unsafe. In itself • it may not have been a common, nuisance, but the maxim sic utere ■ is not limited to common nuisances. The cases cited, and many • more that might be cited, show that it has a much more extensive application, for in all civil acts the law does not so much regard ■ the intent of the actor as the loss and damage of the party suffer- ■ ing. ' In trespass quare clausum fregit, the defendant pleaded that •.he had land adjoining the plaintiff’s close, and upon it a hedge of [121]*121thorns; that he cut the-thorns, and that they, ipso invito, fell upon the plaintiff’s land and the defendant took them off as soon as he could. On demurrer, judgment was given for the plaintiff, on the ground that though a man do a lawful thing, yet, if any damage thereby befalls another, he shall be answerable if he could have •avoided it — Broom’s Legal Maxims 161. Be it then that the . store was a lawful structure, the defendant so used it as to hurt ■the plaintiff in his property, and this was to violate a fundamental maxim of the law. With his eyes wide open to the fact ' that government would use his storehouse for heavy storage, he .let them have it, knowing that it was unfit for such use, and he inserted no word of caution or restraint in the lease. As was said in Hagerty’s case, “ if after the building was finished’, he knew there were defects in it which unfitted it for the designated pur- ■ pose, he should have stipulated in the lease against its being used • for heavy storage. He omitted his duty in both respects — he did ■not build a strong storehouse, and. he did not forbid heavy storage.” Tempted by a large rent, he permitted his building to be subjected to burthens too heavy for it to bear, though lighter than the tenant had the right to impose, and herein is the ground of his liability. We go not one inch beyond the case before us. We say not that he would be liable if he had sold the building, and parted with all control over it; or if he had employed master builders, and the best of materials, or if he had stipulated for a use proportioned to its strength, but we pronounce him liable in the precise circumstances of the case. It is not our office to decide •possible and hypothetical, but actual, cases — such as are made to hand. And taking this case just as it is presented in the record, we conceive there is a clear, legal liability, which considerations ■of public policy and private right demand should .be enforced against the defendant.
The answers of the court to the several points submitted on the part of the defendant, were quite as favourable as, in view of the general principles we have discussed, he had any right to expect.
If the evidence of the fall of other stores built by the defendant in the same row had been offered to establish his reputation, or that of his mechanics as builders, it would have been incompetent on the principle of Waugh v. Shunk, 8 Harris 130; but offered, as it was, to bring homfe notice to him of the insufficiency and unsafety of the kind of building he was about to erect, it was competent proof. It took away all pretence of mistake, and showed a reckless perseverance in wrong doing, which, if the law cannot present, it will punish.
There is nothing in the other bills of exception to evidence that merits discussion.
The judgment is affirmed.
• Buack, J., dissented.