The Inhabitants of Oakham vs. Cyrus Holbrook, Administrator, 11 Cush. 299

Merrick, J. The plaintiffs do not allege that the defendant was personally guilty of any negligence, either in the original construction, or in the subsequent care and management of the reservoir dam; but they complain that it was broken down and swept away, either in consequence of its not having been properly built, or not afterwards kept in sufficient and suitable repair.

And they seek to hold the defendant responsible for the damage which was occasioned to them by its destruction and loss, solely upon the ground that he was then the owner of it, and of the mill and mill-dam to which if is said to have been appurtenant. But the only interest he e /cr had in the premises was vested in him as the administrator of the estate of John Estabrook, or was derived from a q uitclaim deed executed and delivered to him as such administrator, on the 29th day of December, 1849, by Jacob W.

Watson, who had become entitled to the right in equity of redeeming the premises from the outstanding mortgages upon if. At that time J. B. and R. Dexter were in possession of the estate, under a verbal agreement with Watson for its purchase ; and they continued to possess and occupy it for their own use under that agreement, and a similar one subsequently made with the guardian of the heirs at law of John Estabrook, until the dam fell down and was destroyed, on the 10th day of February next following.

No contract was ever made with them by the defendant respecting it, and he never promised them, or any one to support, maintain, or repair it. It is a principle of the common law, fully recognized and affirmed by this court, in a case recently determined, that the occupier, and not the landlord, is bound, as between himself and the public, so far to keep buildings and other structures in repair, that they may be safe for the public ; and that such occupier is primd facie liable to third persons for damages arising from any defect. Lowell v. Spaulding, 4 Cush. 277; Regina v. Bucknall, 2 Ld. Raymond, 804.

If, therefore, it be assumed that the Messrs. Dexter were his tenants, as the defendant had not contracted with them, nor in any way stipulated to support the dam, or to keep it in secure and safe condition, or to do any thing whatever to it, he was not liable while it was in their possession and under their sole and exclusive control, for losses which occurred to others in consequence of its not being kept in proper and suitable repair.

Nor was the defendant responsible for such losses, upon the ground that as owner of the estate he is to be considered as having authorized and affirmed the continuance of the reservoir dam while it was in the possession of the Messrs. Dexter. Such a liability attaches only to a party who transfers an estate with the original wrong, or who receives rent or other consideration for its continuance. Rosewell v. Prior, 2 Salk. 460 ; Rex v. Pedly, 1 Ad. & El. 822. But the defendant did nothing of the kind. He was never himself in possession of the estate.

He did not demise it; he received no rent, and never claimed that the Messrs. Dexter were his tenants. He did nothing to vindicate or affirm his own title against them. On the contrary, they took possession of the premises upon an agreement with another party, and always occupied without obtaining the license or consent of the defendant. If the title was in him, he was not obliged to assert it; if he considered the burden attached to the estate greater than its benefits, he was not obliged to assume it.

At any rate, if the dam was a nuisance in consequence of its weakness and insufficiency to retain and safely hold back the waters accumulated by it, the defendant had no connection with it. He did not build nor occupy, nor by any bargain or act of his own, authorize any other person to occupy it; and therefore he cannot be said either to have caused the wrong, or to have made himself in any way responsible for its continuance, or the consequences which resulted from it. Plaintiffs nonsuit.