Brewster v. DeFremery

By the Court, Sawyer, J.: The defendants were the owners in fee of a brick house, and the lot on which it stood, in San Francisco, called the “ Sumner Street House.” The deceased was in the occupation of said “ Sumner Street House,” as the tenant of defendants on a letting from month to month, at a monthly rent payable monthly in advance. Ho covenants are [345]averred, on the part of the defendants, to keep the premises in repair, or in a habitable condition, and, for the purposes of the decision, it must be assumed that there were none. While the deceased was thus in the occupancy of the premises, the owners of the adjoining lot excavated it, for the purpose of erecting a building thereon, on a line parallel with the easterly wall of said building, at a distance of three feet ten inches from said wall, to a depth of five feet below the same. The defendants had timely notice of said excavation, and that, in consequence thereof, there was imminent danger that the wall of said “ Sumner Street House ” would fall, unless proper means should be taken to prevent it. Ho means were taken by defendants to sustain said wall, or prevent its falling; and on the night of the 17th of August, 1866, said wall and the whole building fell in, and crushed the deceased, who was then occupying said building, as a tenant as aforesaid, by reason whereof he died. The action is brought under the statute of 1862, against the owners of the building, by the administratrix, for the benefit of the next of kin of the deceased.

A demurrer to the complaint alleging the foregoing facts was sustained, and judgment entered for defendants, from which plaintiff appeals.

The house did not fall in consequence of any act of the owners, but in consequence of the acts of parties owning the adjoining lot, in excavating it for purposes of their own, after the deceased entered into the possession of the demised premises under the lease. There was no covenant on the part of the lessors, the defendants, to uphold, or keep the premises in repair, or in a habitable condition. Without an express covenant to that effect, they were not bound to repair, or to keep the premises in a habitable condition. We think the rule correctly stated in Howard v. Doolittle, 3 Duer, 464. In that case it was held, that a landlord is in no case bound to repair, unless by force of an express covenant or contract, and that, even when a building is let for a special [346]