Christiancy, J.
This was an action on the case brought by the defendant in error, against the plaintiffs in' error, to recover damages received by her by falling into a scuttle or hole in the sidewalk on Woodward avenue, Detroit, in front of .a store in what is known as Fishers’ Block, of which said Fishers were the owners, and which they had erected some jears before. The scuttle opened into a vault beneath the sidewalk (as usual in such cases), connecting with the cellar, and was constructed and used for putting wood and •coal into the cellar for the use of the store. It was constructed by the owners in the usual manner, by putting in an iron ring or thimble through the stone sidewalk, and fitting into this an iron cover, coming up even with the surface of the walk, and forming part of it. Some time prior to this accident the thimble had been broken by throwing wood against it, which loosened the cap or cover in such a manner that by stepping on the side of it, it would turn down; and in this way the plaintiff received ■the injury, about dusk on the evening of the 28th December, 1868.
The premises were not in the occupation of the Fishers, the owners, and never had been occupied by them, having always been occupied by tenants - under them. And, some time previous to the accident, this store had been leased to [15]*15a Mr. and Mrs. Hill, or one of them (it does not definitely appear whether the lease was to Hill or wife, or both, though the wife seems to have owned the stock), and was occupied by them as a drug store, under the lease, up to about the time of, if not after the' accident, which is one of the questions in the case.
On the 16th day of December, 1868, the defendant, John H. Griffith, entered into a verbal negotiation or arrangement with Hill and wife for the purchase of the stock at cost, and for the purchase of the lease and fixtures. The inventory of the stock was completed on the 26th, having been made by Hill and wife and Griffith, and persons employed by them, one of them, Kier, having been employed by Griffith, but paid out of the drawer from sales made prior to the completion of the sale to Griffith; and during the time of making the inventory all the parties had, of course, access to the store, but the key was kept by Iiill, he opening the store in the morning and locking it at night. After the inventory of the stock was completed, delays occurred, in reference to the fixtures, and in reference to the title of a lot in Detroit which the brother of Griffith was to mortgage to secure a part of the purchase money, a search and abstract of which had to be made, and there were consequent delays in executing the bond and mortgage and the bill of sale of the stock. And on the 26th, Hill, seeming to apprehend that the proper securities might not be given, and the sale not be completed, appointed Kier (who had been aiding in taking the inventory) to take charge of the key and the money in the store, till the matter, of the sale should be finally decided^ It seems some goods had been sold from time to time after being placed on the inventory, and these sales still continued, with the apparent understanding that if the sale to Griffith should be completed, the money would be his [16]*16in place of the goods sold, otherwise it would belong to the Hills.
On the evening of the 28th, about half past five, or between that and six o’clock (which the evidence tends to show was after, — though but a little after the accident), the papers having been examined by Cleaveland Hunt, an attorney in his office, were delivered, and the money and securities handed over, — except the bill of sale of the goods^ to be yet executed by Mrs. Hill, who was not present with her husband at the attorney’s office. The bill of sale was executed afterwards, that evening or the next morning, and received by Griffith in the morning. ' Up to the time of the delivery of the other papers at the attorney’s office, no money or other consideration had been paid by Griffith, and there had been no delivery of the goods or any part of them, nor of the key. And there is no evidence in the record tending to show that Griffith had any possession or control of the premises otherwise than being there by the mere permission of the Hills, as already stated, making the inventory and settling the preliminaries of the purchase.
But after the payment and the delivery of the papers, which took place at the attorney’s office, Griffith, about six o’clock in the evening, and some time after the accident, came to the store and assumed the possession, though he did not receive the bill.of sale of the goods till the next morning
There was no evidence in the -case tending in the least degree to controvert any of the facts above stated, as to the time of the completion of the purchase, or the time when Griffith became entitled to, or took the possession, unless the admission made by him to Wilkins, after the accident, can be construed as such.
Understanding that Wilkins was concerned on the part of the plaintiff in her claim against him for damages, and that he was acting in her behalf,' Griffith, in the course of [17]*17a conversation with Wilkins (as testified by the latter), said, among other things, that there was a question as to his liability, owing to the fact that neither party had possession of the premises at the time; that they were about transferring the title or lease; that the papers were nearly made out; that they had been executed; and the attorney of the opposite party wished to see them again for the purpose of examining them again, to see if they needed correction, and they had been passed across the table for the attorney of the opposite party to see whether they needed correction, and that about that time the accident must have happened; and for this reason he did not know who was liable. Being further examined Wilkins says, “he said he was in actual possession, but doubted whether he was in the legal possession for the reason stated;” and on cross-examination he further says that Griffith said “there was a question of his liability; that he had not assumed possession.”
Now, we think it clear that all Griffith states here in regard to being in possession, refers to the facts, as stated in all the testimony of witnesses who speak to those facts, and about which there is not the shadow of discrepancy, —and if he did say he was in actual possession, it was accompanied with such qualifications as clearly show that it was, in law, neither an actual nor a legal possession; that in other words he was mistaken in his legal opinion of what constituted possession. About the facts there was no dispute and no discrepancy.
But no kind of possession by him which did not give him the control of the premises, as between him and the Hills, could have rendered him responsible for this accident; as no other could impose upon him, instead of them, the duty of keeping the scuttle in repair. And there was not only no evidence tending to show he had such possession [18]*18at the time of the accident: but the tendency of all the testimony upon this point was to show that he had yet obtained no such possession, and that the Hills still retained the possession and control; that though he was in the store a part of the time, he was there only by the permission of the Hills, and whatever he or his servants did there was only by their permission.
The plaintiff has doubtless suffered an injury for which she ought to be compensated. But Griffith, so far as appears by the evidence, was as guiltless of all wrong, legally and morally, as the plaintiff herself.
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Christiancy, J.
This was an action on the case brought by the defendant in error, against the plaintiffs in' error, to recover damages received by her by falling into a scuttle or hole in the sidewalk on Woodward avenue, Detroit, in front of .a store in what is known as Fishers’ Block, of which said Fishers were the owners, and which they had erected some jears before. The scuttle opened into a vault beneath the sidewalk (as usual in such cases), connecting with the cellar, and was constructed and used for putting wood and •coal into the cellar for the use of the store. It was constructed by the owners in the usual manner, by putting in an iron ring or thimble through the stone sidewalk, and fitting into this an iron cover, coming up even with the surface of the walk, and forming part of it. Some time prior to this accident the thimble had been broken by throwing wood against it, which loosened the cap or cover in such a manner that by stepping on the side of it, it would turn down; and in this way the plaintiff received ■the injury, about dusk on the evening of the 28th December, 1868.
The premises were not in the occupation of the Fishers, the owners, and never had been occupied by them, having always been occupied by tenants - under them. And, some time previous to the accident, this store had been leased to [15]*15a Mr. and Mrs. Hill, or one of them (it does not definitely appear whether the lease was to Hill or wife, or both, though the wife seems to have owned the stock), and was occupied by them as a drug store, under the lease, up to about the time of, if not after the' accident, which is one of the questions in the case.
On the 16th day of December, 1868, the defendant, John H. Griffith, entered into a verbal negotiation or arrangement with Hill and wife for the purchase of the stock at cost, and for the purchase of the lease and fixtures. The inventory of the stock was completed on the 26th, having been made by Hill and wife and Griffith, and persons employed by them, one of them, Kier, having been employed by Griffith, but paid out of the drawer from sales made prior to the completion of the sale to Griffith; and during the time of making the inventory all the parties had, of course, access to the store, but the key was kept by Iiill, he opening the store in the morning and locking it at night. After the inventory of the stock was completed, delays occurred, in reference to the fixtures, and in reference to the title of a lot in Detroit which the brother of Griffith was to mortgage to secure a part of the purchase money, a search and abstract of which had to be made, and there were consequent delays in executing the bond and mortgage and the bill of sale of the stock. And on the 26th, Hill, seeming to apprehend that the proper securities might not be given, and the sale not be completed, appointed Kier (who had been aiding in taking the inventory) to take charge of the key and the money in the store, till the matter, of the sale should be finally decided^ It seems some goods had been sold from time to time after being placed on the inventory, and these sales still continued, with the apparent understanding that if the sale to Griffith should be completed, the money would be his [16]*16in place of the goods sold, otherwise it would belong to the Hills.
On the evening of the 28th, about half past five, or between that and six o’clock (which the evidence tends to show was after, — though but a little after the accident), the papers having been examined by Cleaveland Hunt, an attorney in his office, were delivered, and the money and securities handed over, — except the bill of sale of the goods^ to be yet executed by Mrs. Hill, who was not present with her husband at the attorney’s office. The bill of sale was executed afterwards, that evening or the next morning, and received by Griffith in the morning. ' Up to the time of the delivery of the other papers at the attorney’s office, no money or other consideration had been paid by Griffith, and there had been no delivery of the goods or any part of them, nor of the key. And there is no evidence in the record tending to show that Griffith had any possession or control of the premises otherwise than being there by the mere permission of the Hills, as already stated, making the inventory and settling the preliminaries of the purchase.
But after the payment and the delivery of the papers, which took place at the attorney’s office, Griffith, about six o’clock in the evening, and some time after the accident, came to the store and assumed the possession, though he did not receive the bill.of sale of the goods till the next morning
There was no evidence in the -case tending in the least degree to controvert any of the facts above stated, as to the time of the completion of the purchase, or the time when Griffith became entitled to, or took the possession, unless the admission made by him to Wilkins, after the accident, can be construed as such.
Understanding that Wilkins was concerned on the part of the plaintiff in her claim against him for damages, and that he was acting in her behalf,' Griffith, in the course of [17]*17a conversation with Wilkins (as testified by the latter), said, among other things, that there was a question as to his liability, owing to the fact that neither party had possession of the premises at the time; that they were about transferring the title or lease; that the papers were nearly made out; that they had been executed; and the attorney of the opposite party wished to see them again for the purpose of examining them again, to see if they needed correction, and they had been passed across the table for the attorney of the opposite party to see whether they needed correction, and that about that time the accident must have happened; and for this reason he did not know who was liable. Being further examined Wilkins says, “he said he was in actual possession, but doubted whether he was in the legal possession for the reason stated;” and on cross-examination he further says that Griffith said “there was a question of his liability; that he had not assumed possession.”
Now, we think it clear that all Griffith states here in regard to being in possession, refers to the facts, as stated in all the testimony of witnesses who speak to those facts, and about which there is not the shadow of discrepancy, —and if he did say he was in actual possession, it was accompanied with such qualifications as clearly show that it was, in law, neither an actual nor a legal possession; that in other words he was mistaken in his legal opinion of what constituted possession. About the facts there was no dispute and no discrepancy.
But no kind of possession by him which did not give him the control of the premises, as between him and the Hills, could have rendered him responsible for this accident; as no other could impose upon him, instead of them, the duty of keeping the scuttle in repair. And there was not only no evidence tending to show he had such possession [18]*18at the time of the accident: but the tendency of all the testimony upon this point was to show that he had yet obtained no such possession, and that the Hills still retained the possession and control; that though he was in the store a part of the time, he was there only by the permission of the Hills, and whatever he or his servants did there was only by their permission.
The plaintiff has doubtless suffered an injury for which she ought to be compensated. But Griffith, so far as appears by the evidence, was as guiltless of all wrong, legally and morally, as the plaintiff herself. And it would be no less a violation of morals or of law to compel him to make good the damages than to leave her to bear them herself. She has no more right, upon any legal or equitable principle, to call upon him than she would have to call upon any customer who might have stepped into the store to purchase a box of pills. The Court, therefore, erred in submitting the question of Griffith’s possession, or his liability, to the jury. There was no evidence tending to establish either.
We will next enquire whether there'was any evidence tending to establish the liability of the Fishers, as owners, who made the excavation and put in the scuttle.
The evidence tended to show that it was in good and safe condition when made, and continued so when leased to the Hills, and there was no evidence of an opposite tendency. It does not appear that there was any provision in the lease, or any agreement of the lessor, to keep the premises in repair.
The Court, at the plaintiff’s request, charged, substantially, that if the jury should find from the evidence that the Fishers constructed the building, scuttle, and improvements, and that from their construction, several years ago, down to the time when the injury occurred, they continued to be [19]*19and were the owners, they are liable in .this action, though they had leased the same to other parties, — that they were bound to keep the scuttle in good and safe condition while they owned the building and improvements, and it makes no difference that they may not have known that the scuttle was unsafe.
And the Court refused to charge as requested by the defendants,—
“1. That it was not the duty of the Messrs. Fisher, as owners of the building in question, to keep the same in repair while it was occupied by tenants, unless there was an agreement made with the tenants that they (the Fishers) should make the repairs; and that, in the absence of such agreement, they are not liable for the injury complained of, caused by a want of repair, while in the possession of their tenants.
“2. That there is no evidence tending to show that the scuttle was out of repair when the premises were leased; and,'
“ 3. That the Fishers had a perfect right, in erecting their store, to excavate under the sidewalk, if they put the same in a perfectly secure and unobstructed condition; and if the accident to the plaintiff occurred by reason of the negligence of their tenants in permitting the scuttle to get out of repair, and not by reason of any original defect in the manner of making the same, then the Fishers are not liable in this action.”
We think the Court erred both in charging as requested by the plaintiff below, and in refusing to charge as requested by the defendants.
There are some cases in the State of New York which apparently sanction this ruling of the Court, and would hold the owners, who made the excavation, and the scuttle responsible for all injuries resulting from the want of its [20]*20entire safety, though the owner was guilty of no negligence in the manner of its construction; thus making the owner an absolute insurer against all injuries which may arise from it, without reference to his negligence or vigilance.—Congreve v. Morgan el al., 5 Duer, 495, and same case on appeal, 18 N. Y., 79; and this though the work was well and safely constructed, and was afterwards destroyed or injured by the act of a wrong-doer.—Congreve v. Morgan et al., 18 N. Y., 84; and see Davenport v. Ruckman, 10 Bosw., 20; and Irvin v. Fowler, 5 Robertson R., 482.
But these cases go upon the avowed principle that such excavations in the public street are unlawful in themselves, ab initio; and that no person is authorized to make them without affirmative legislative authority (which however I infer might be by resolution or ordinance of the common council.— Milhau v. Sharp, 17 Barb., 435.) And, if it be conceded that the construction itself was a wrongful acty and in violation of law, then the consequences which the New York courts have drawn from this fact would seem naturally enough to follow upon common-law principles.. This .is well illustrated by the case of Ellis v. Sheffield Gas Co., 2 Ellis & Blackburn, 767, which turns upon this distinction. And if there had been an ordinance of the city of Detroit against making such constructions without special permission of the council, which had not been obtained, ox-forbidding their construction except ixx a certain manner, and such ordinance had beeix violated in constructing this, excavation or the scuttle, perhaps the rule of responsibility adopted by the courts of New York might be applicable to the present case. But it is conceded there was no such ordinance of the city of Detroit, applicable to the construction of this wpx-k (and that no license or permission was obtained from the common council fox- its construction), aixd we are satisfied that, at common law, the making of [21]*21such excavations under sidewalks in cities, and the scuttles therein, for such purposes as this was made and used for, were not treated as nuisances in themselves, or in any respect illegal, unless the walk was allowed to remain broken up for an unreasonable length of time, or the work was improperly or unsafely constructed; though it would afterwards become a nuisance if not kept in repair.
Judging from the reported cases, the usage or custom of constructing such works in cities seems to have been, in England for a long period, . as general as we know it has been in this country. And, though we find many decided cases in the English books, for private injuries caused by these structures being out of repair, and indictments for obstructing highways and streets in a great variety of ways, we have been cited to no English cases, and have discovered none, in which such works have been held illegal, in themselves, when properly and safely made, without any legislative permission, or that of the municipal authorities-Their legality seems, in all the cases, to have been assumed by the courts without any showing of such special authority or any authority. They have been treated as nuisances when allowed to be out of repair, and private actions have frequently been sustained for injuries received in consequence ; but we find no intimation of their original illegality, when safely and properly constructed. This will appeal- from- the cases cited below upon the question, whether the tenant or the landlord is bound to keep them in repair. And the same view seems to have been quite generally taken in this country, outside of the State of New York.
The principles of the common law applicable' to this question are, we think, clearly stated in Clark v. Fry, 8 Ohio State R., 358, which was an action for damages caused by the plaintiff's falling into an excavation made [22]*22in the sidewalk (or part of the street) in front of the defendant’s lot, in the city of Toledo, communicating with the cellar; and the Supreme Court of Ohio held that the right of transit in the use of the public highways is subject to such incidental, temporary, or partial obstructions, as manifest necessity requires; and that, among these, are the temporary impediments necessarily occasioned in the building and repairing of houses and lots fronting on the streets of a city, and in the construction of sewers and cellars, etc.; that these are not invasions, but qualifications of the right of transit on the public highway; and the limitation on them is, that they must not be unnecessarily interposed or prolonged; that such temporary obstructions upon the highway, when guarded with due care to prevent danger to the public, and not unnecessarily extended or continued, are not nuisances, and do not require a license from the municipal authority to legalize them, although suitable regulations by city authorities requiring such obstructions to be properly guarded and to prevent them from being made in an improper manner or continued unnecessarily, arc usual and highly proper.
The original erection having been- legal and in a proper and safe condition when the Fishers leased the premises to the Hills, and the injury being received in consequence of the scuttle getting out of repair during the tenancy, were the Fishers liable as owners or otherwise for having failed to keep it in safe condition and repair? The lease, so far as appears, being silent as to who should make repairs, it ■was the duty of the lessees to keep the premises in repair. Gott v. Gandy, 22 Eng. L. & Eq., 173; Leavitt v. Fletcher, 10 Allen, 121; Elliott v. Aiken, 45 N. H., 36; Estep v. Estep, 23 Ind., 114; City of Lowell v. Spaulding, 4 Cush., 277.
And the owners, being out- of possession and not bound [23]*23to repair, are not liable in this action for injuries received in consequence of the neglect to repair. — See Payne v. Rogers, 2 H. Bl., 350 — a case much like the present, except that it appeared the landlord was to make the repairs, and on this ground alone he was held liable to the plaintiff, to avoid circuity of action. And see, as to the last point, City of Lowell v. Spaulding, above cited, Chauntler v. Robinson, 4. Excheq., 163—that owner, as such, out of possession, not bound to repair; Rich v. Basterfield, 4. M. G. & S., 783; Russell v. Shenton, 3 Ad. & E. (N. S.), 449; Bishop v. Bedford Charity, 1 Ellis & Ellis, 697,—injury from falling through grating, — all the judges agree as to this point, though divided as to the evidence.—Cheetham v. Sampson, 4 T. R., 318. Owner not bound to repair fences when premises leased to tenant.—See also Regina v. Watts, 1 Salk., 357.
The same rule seems clearly settled in Pennsylvania.—Offerman v. Starr, 2 Penn. (State) R., 394; and Bears v. Ambler, 9 Penn. (State), 193. The latter is a case like the present in all its material circumstances. Suit against owner, held not liable, premises having been leased in good order. And in Massachusetts, City of Lowell v. Spaulding, cited above, and in Maryland, Owings v. Jones. 9 Md., 108, a very instructive and well considered case for an injury caused by falling through a vault under sidewalk.
But if the scuttle had been out of repair and unsafe when leased to the Hills, the Fishers might, perhaps, have been held liable. Rich v. Basterfield, above cited, and Todd v. Flight, 9 C. B. (N. S.), 377.
There may be good sense and sound policy in the rule adopted in New York, making owners, constructing such works, liable as insurers against all injuries which may arise from them, irrespective of the question of negligence. [24]*24But we do not think it is the sense or the policy of the common law.
The assignment of errors is objected to by the counsel for the defendant in error, because it appears to be joint in behalf of both the plaintiffs in error; and yet some of the assignments are upon errors which could only affect Griffith, and others are upon grounds which could only affect the Fishers; and it is urged that the parties should have severed in their assignments of error.
We think there is no ground for this objection, and we are aware of no rule or authority requiring such severance in such'a case. The plaintiffs in error were jointly sued and a joint judgment recovered against them, and all join in bringing the writ of error. The assignment should be considered as joint and several, or joint or several, according to the nature of the error assigned, and as affecting the respective plaintiffs in error.
The judgment must be reversed with costs and a new trial awarded.
The other Justices concurred.