City of Lowell v. Spaulding

Massachusetts Supreme Judicial Court

City of Lowell v. Spaulding

58 Mass. 277

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1849

StatusPublished

Cited by5 cases

This text of 58 Mass. 277 (City of Lowell v. Spaulding) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Lowell v. Spaulding, 58 Mass. 277 (Mass. 1849).

Pincite

Opinion

Shaw, C. J.

The city of Lowell, having been obliged to pay damages to a party injured through a defect in one of the' highways therein, arising from the want of repair of a sidewalk, now seek their remedy to recover single damages of the defendant, as the owner of the estate, the sidewalk of which was defective. This case would be similar in principle to the case of Lowell v. Short, next preceding, if the defendant was bound to repair. But it appears from the facts stated, that the defendant had only a reversion in the estate, azid that the tenements were in the actual occupation of his tenants.

By the common law, the occupier azid not the landlord is [279]*279bound, as between himself and the public, so far to keep buildings in repair, that they may be safe for the public; and such occupier is prima facie liable to third persons for damages arising from any defect. Regina v. Watts, 1 Salk. 357; S. C. 2 Ld. Raym. 856; S. C. 3 Ld. Raym. 18; Cheetham v. Hampson, 4 T. R. 318. If, indeed, there be an express agreement between landlord and tenant, that the former shall keep the premises in repair, so that in case of a recovery against the tenant, he would have his remedy over, then to avoid circuity of action, the party injured by the defect and want of repair, may have his action in the first instance against the landlord. Payne v. Rogers, 2 H. Bl. 350. But such express agreement must be distinctly proved. Judgment for the defendant.

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Shaw, C. J.

The city of Lowell, having been obliged to pay damages to a party injured through a defect in one of the' highways therein, arising from the want of repair of a sidewalk, now seek their remedy to recover single damages of the defendant, as the owner of the estate, the sidewalk of which was defective. This case would be similar in principle to the case of Lowell v. Short, next preceding, if the defendant was bound to repair. But it appears from the facts stated, that the defendant had only a reversion in the estate, azid that the tenements were in the actual occupation of his tenants.

By the common law, the occupier azid not the landlord is [279]*279bound, as between himself and the public, so far to keep buildings in repair, that they may be safe for the public; and such occupier is prima facie liable to third persons for damages arising from any defect. Regina v. Watts, 1 Salk. 357; S. C. 2 Ld. Raym. 856; S. C. 3 Ld. Raym. 18; Cheetham v. Hampson, 4 T. R. 318. If, indeed, there be an express agreement between landlord and tenant, that the former shall keep the premises in repair, so that in case of a recovery against the tenant, he would have his remedy over, then to avoid circuity of action, the party injured by the defect and want of repair, may have his action in the first instance against the landlord. Payne v. Rogers, 2 H. Bl. 350. But such express agreement must be distinctly proved. Judgment for the defendant.

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58 Mass. 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-lowell-v-spaulding-mass-1849.

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