The opinion of the court was delivered by
Gijmmere, J.
The declaration in the cause alleges that about the year 1874, the Delaware and Bound Brook Railroad Company, a corporation of this state, constructed a railroad embankment and bridge in, over and across the Raritan river, in the county of Somerset; that, in the year 1879, it leased its road, including the said embankment and bridge, to the Philadelphia and Reading Railroad Company, and that the latter company and its receivers, the defendants in this cause, have ever since been in the possession of said embank[98]*98ment and bridge, and have used, rebuilt and maintained the same. The declaration then charges that, by reason of the construction of said embankment and bridge, the waters of said river are penned up and forced back upon the lands of the plaintiff, thereby rendering them boggy and valueless.
The defendants have filed several pleas to this declaration, and to two of them the plaintiff has demurred.
The first of these pleas sets out that the Philadelphia and Eeading Eailroad Company came into the possession of said embankment and bridge by virtue of a certain lease made to it by the Delaware and Bound Brook Eailroad Company, whereby the latter company leased to the former for a term of nine hundred and ninety-nine years its railroad and appurtenances, of which the said embankment and bridge are a part. The defendants then aver that neither the said Philadelphia and Eeading Eailroad Company nor they, its receivers, have ever built up, constructed or maintained said embankment and bridge in such manner as to obstruct the flow of said river in any other or different manner, or to any greater extent, than the same was obstructed by said embankment and bridge when the same came into the possession of said company and its receivers under said lease; and that the only use which said company or its receivers have made of said embankment and bridge has been the running of its and their railroad trains over them.
It will be observed that, by this plea, the defendants do not deny that they and the company of which they are receivers have built up, constructed and maintained said embankment and bridge; they merely deny that they have done so in such a manner as to obstruct the flow of the river in any other manner or to any greater extent than the same was obstructed by the said embankment and bridge when those structures came into their possession. The question, therefore, which is presented for decision is whether a tenant, under a lease for a term of nine hundred and ninety-nine years, becomes responsible for damages caused by the existence of a structure upon the demised premises which is a nuisance, when such structure [99]*99was put there by his lessor prior to the making of the lease, and when the tenant simply maintains it in the condition in which it came to him, and rebuilds it when it falls out of repair.
The answer to this question must depend, it seems to me, upon the estate-which the tenant has by virtue of his lease. The law imposes upon an ordinary tenant for years the duty of keeping the demised premises in repair, .and of returning them to his landlord at the end of his term in approximately the same condition in which he received them. If he fails to do this, and suffers the estate to go to decay for want of necessary repairs the law makes him liable to his landlord as for a permissive waste. So, too, if he does any act which inj ur'es the inheritance his lessor may recover against him as for a voluntary waste. Moore ads. Townshend, 4 Vroom 284; Newbold v. Brown, 15 Id. 266. This being so, it follows as a necessary result that a lessee is under no obligation to a third person either to tear down or to suffer to fall into decay a structure upon the demised premises which, in the state in which it was at the commencement of the term, was a nuisance to such person. The law does not impose upon anyone the duty of performing an act for the benefit of one person which will necessarily subject him to liability at the hands of another.
In those cases in which the nuisance exists at the time of the creation of the estate for years, and the lessee does nothing except to maintain the demised premises in the condition in which he received them, the person who suffers from the nuisance must look to the landlord, and not to the tenant, for redress.
It is urged that this view is opposed to that taken by this court in the case of Morris Canal and Banking Co. v. Ryerson, 3 Dutcher 457; but this contention is based upon a misapprehension of what was really decided by that case. The situation was this : The Morris Canal and Banking Company had purchased a tract of land, upon which there was a dam which caused the waters of the Pompton river to flow back [100]*100upon and submerge the lands of Ryerson, and the latter brought his suit to recover for the damages caused by the back-water. The matter to be determined was whether the owner of lands, upon which there was a structure which had been erected to the nuisance of another, prior to his acquiring title, was liable for the damage caused thereby .unless he had been first requested to remove it; and this court held that if the owner of lands upon which such a structure had been erected continues the nuisance, and uses the structure, the party injured has a remedy against him without first requesting an abatement thereof, but that if such owner simply suffers the structure to remain, without using it, such action on his part is not a continuance of the nuisance unless there be a request to remove it.
Clearly this decision affords no ground for the contention that a tenant for years becomes responsible in damages for maintaining and using a structure upon the demised premises, which has been erected thereon, to the nuisance of a third person, prior to the beginning of his term.
But do the defendants in this case, and the company of which they are receivers, occupy the position of tenants for years under their lease ? By its provisions they become the possessors of the railroad and appurtenances of the lessor company (including the embankment and bridge referred to in the pleadings) for a period of nine hundred and ninety-nine years, a term which is, for all practical purposes, perpetual. Such a lease, as was said by Mr. Justice Van Syckel, speaking for the Court of Errors and Appeals, in Black v. Delaware and Raritan Canal Co., 9 C. E. Gr. 455, 465, is substantially a conveyance in fee, and, for this reason, the lessees, in determining the measure of their responsibility in maintaining a nuisance upon the premises conveyed to them by such an instrument, should be considered as owners rather than as tenants for years. Now, as owners, they are responsible to a third person for damages sustained by him, by reason of the existence upon their lands of a structure erected by their predecessor in title, to his nuisance, provided they con[101]*101tinue the same. Morris Canal and Banking Co. v. Ryerson, supra. That these defendants have actively continued the nuisance complained of, they themselves admit in the plea.
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The opinion of the court was delivered by
Gijmmere, J.
The declaration in the cause alleges that about the year 1874, the Delaware and Bound Brook Railroad Company, a corporation of this state, constructed a railroad embankment and bridge in, over and across the Raritan river, in the county of Somerset; that, in the year 1879, it leased its road, including the said embankment and bridge, to the Philadelphia and Reading Railroad Company, and that the latter company and its receivers, the defendants in this cause, have ever since been in the possession of said embank[98]*98ment and bridge, and have used, rebuilt and maintained the same. The declaration then charges that, by reason of the construction of said embankment and bridge, the waters of said river are penned up and forced back upon the lands of the plaintiff, thereby rendering them boggy and valueless.
The defendants have filed several pleas to this declaration, and to two of them the plaintiff has demurred.
The first of these pleas sets out that the Philadelphia and Eeading Eailroad Company came into the possession of said embankment and bridge by virtue of a certain lease made to it by the Delaware and Bound Brook Eailroad Company, whereby the latter company leased to the former for a term of nine hundred and ninety-nine years its railroad and appurtenances, of which the said embankment and bridge are a part. The defendants then aver that neither the said Philadelphia and Eeading Eailroad Company nor they, its receivers, have ever built up, constructed or maintained said embankment and bridge in such manner as to obstruct the flow of said river in any other or different manner, or to any greater extent, than the same was obstructed by said embankment and bridge when the same came into the possession of said company and its receivers under said lease; and that the only use which said company or its receivers have made of said embankment and bridge has been the running of its and their railroad trains over them.
It will be observed that, by this plea, the defendants do not deny that they and the company of which they are receivers have built up, constructed and maintained said embankment and bridge; they merely deny that they have done so in such a manner as to obstruct the flow of the river in any other manner or to any greater extent than the same was obstructed by the said embankment and bridge when those structures came into their possession. The question, therefore, which is presented for decision is whether a tenant, under a lease for a term of nine hundred and ninety-nine years, becomes responsible for damages caused by the existence of a structure upon the demised premises which is a nuisance, when such structure [99]*99was put there by his lessor prior to the making of the lease, and when the tenant simply maintains it in the condition in which it came to him, and rebuilds it when it falls out of repair.
The answer to this question must depend, it seems to me, upon the estate-which the tenant has by virtue of his lease. The law imposes upon an ordinary tenant for years the duty of keeping the demised premises in repair, .and of returning them to his landlord at the end of his term in approximately the same condition in which he received them. If he fails to do this, and suffers the estate to go to decay for want of necessary repairs the law makes him liable to his landlord as for a permissive waste. So, too, if he does any act which inj ur'es the inheritance his lessor may recover against him as for a voluntary waste. Moore ads. Townshend, 4 Vroom 284; Newbold v. Brown, 15 Id. 266. This being so, it follows as a necessary result that a lessee is under no obligation to a third person either to tear down or to suffer to fall into decay a structure upon the demised premises which, in the state in which it was at the commencement of the term, was a nuisance to such person. The law does not impose upon anyone the duty of performing an act for the benefit of one person which will necessarily subject him to liability at the hands of another.
In those cases in which the nuisance exists at the time of the creation of the estate for years, and the lessee does nothing except to maintain the demised premises in the condition in which he received them, the person who suffers from the nuisance must look to the landlord, and not to the tenant, for redress.
It is urged that this view is opposed to that taken by this court in the case of Morris Canal and Banking Co. v. Ryerson, 3 Dutcher 457; but this contention is based upon a misapprehension of what was really decided by that case. The situation was this : The Morris Canal and Banking Company had purchased a tract of land, upon which there was a dam which caused the waters of the Pompton river to flow back [100]*100upon and submerge the lands of Ryerson, and the latter brought his suit to recover for the damages caused by the back-water. The matter to be determined was whether the owner of lands, upon which there was a structure which had been erected to the nuisance of another, prior to his acquiring title, was liable for the damage caused thereby .unless he had been first requested to remove it; and this court held that if the owner of lands upon which such a structure had been erected continues the nuisance, and uses the structure, the party injured has a remedy against him without first requesting an abatement thereof, but that if such owner simply suffers the structure to remain, without using it, such action on his part is not a continuance of the nuisance unless there be a request to remove it.
Clearly this decision affords no ground for the contention that a tenant for years becomes responsible in damages for maintaining and using a structure upon the demised premises, which has been erected thereon, to the nuisance of a third person, prior to the beginning of his term.
But do the defendants in this case, and the company of which they are receivers, occupy the position of tenants for years under their lease ? By its provisions they become the possessors of the railroad and appurtenances of the lessor company (including the embankment and bridge referred to in the pleadings) for a period of nine hundred and ninety-nine years, a term which is, for all practical purposes, perpetual. Such a lease, as was said by Mr. Justice Van Syckel, speaking for the Court of Errors and Appeals, in Black v. Delaware and Raritan Canal Co., 9 C. E. Gr. 455, 465, is substantially a conveyance in fee, and, for this reason, the lessees, in determining the measure of their responsibility in maintaining a nuisance upon the premises conveyed to them by such an instrument, should be considered as owners rather than as tenants for years. Now, as owners, they are responsible to a third person for damages sustained by him, by reason of the existence upon their lands of a structure erected by their predecessor in title, to his nuisance, provided they con[101]*101tinue the same. Morris Canal and Banking Co. v. Ryerson, supra. That these defendants have actively continued the nuisance complained of, they themselves admit in the plea. The declaration charges them with having done so by building up, constructing and maintaining the embankment and bridge which constitute the nuisance, and they, in their plea, merely deny that they have done so in such manner as to obstruct the flow of water in any different manner, or to any greater extent, than the same was obstructed by the said embankment and bridge when the same came into their possession.
The result is that the matters set up in this plea constitute no defence to the plaintiff’s action.
The second plea demurred to sets up as a defence that the defendants were appointed receivers of the Philadelphia and Reading Railroad Company by the United States Circuit Court for the district of New Jersey, and that the plaintiff brought his suit against them as receivers without first obtaining leave of said court for that purpose.
It was held by the United States Supreme Court, in Barton v. Barbour, Receiver, 104 U. S. 126, that no suit can be maintained against the receiver of a railroad company who is, by order of court, conducting the business of a common carrier, without leave of the court by which he was appointed, and that the failure to acquire such leave might be set up by plea as a bar to the maintaining of an action so brought. Mr. Justice Miller, however, dissented from the view of the majority of the court, being of opinion that the failure to obtain leave to bring a'suit could not be pleaded as a bar to its maintenancej and that the remedy of the defendant receiver was to apply to the court which appointed him for an injunction to restrain its prosecution.
But in passing upon the validity of this plea it is not necessary for us either to approve or disapprove the doctrine established by Barton v. Barbour, that failure to obtain leave to sue can be pleaded as a defence, for since the decision of that case congress, by an act passed March 3d, 1887 (24 U. S. Stat., ch. 373, p. 552, § 3), has provided that “ every receiver [102]*102or manager of any property, appointed by any court of the United States, may be sued in respect of any act or transan tion of his in’carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed.” This statute has been construed by the Supreme Court of the United States’ in McNulta v. Lochridge, 141 U. S. 327, and it is there held that it was not intended by the words “ any act or transaction of his” to limit the right to sue to cases where the cause of action arose from the conduct of the receiver himself or his agents, but that with respect to the question of liability he stands in the place of the corporation.
It is manifest, therefore, that by virtue of the provision of the statute referred to, as construed in McNulta v. Lochridge, a party may sue a receiver without permission first obtained not only for an injury caused by his own act, but for those which result from acts of the corporation done before his appointment.
In addition to this, the declaration in this case alleges that the nuisance which the plaintiff complains of has been continued by the defendants since their appointment as receivers by the rebuilding, maintaining and using of the embankment mentioned therein, and the plaintiff was therefore, by the very words of the act of congress, entitled to institute this suit without first obtaining leave of the United States Circuit Court.
The plaintiff is entitled to judgment on his demurrer, and the Circuit Court is so advised.