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sufficient to carry the two engines as equivalent to all the water that naturally ran in the stream. For some purposes, no doubt, the recitals in ancient deeds are competent evidence, as, for example, to show the position of a natural boundary (Drury v. Midland R. Co. 127 Mass. 571, 581); or to show pedigree. 1 Greenl. Ev. § 104.

The defendant, as the owner of the upper privilege, and of the dam, flume and gate at the outlet of the pond, acquired by the conveyance the right to control the gate and manage and regulate the flow of the water, except that it must not thereby interfere with the rights of the owners below. To Lapham, the defendant was bound to send the whole natural flow of the stream, subject to such reasonable obstructions and accumulations and prior uses as might properly be made for the defendant's own benefit. To the other plaintiffs, the defendant was bound to send down the quantity of water called for by their several deeds, without ref

This doctrine, however, does not extend so far as to allow the estate granted in a prior deed to be expanded by recitals or statements | of the grantor in a later deed, to the injury of an intervening title. After making the mortgage to Waldo in 1889, the grantor could not impair the rights thereby conveyed by state-erence to the convenience of operating its own ments in a subsequent deed, or otherwise, to the effect that by grants made prior thereto be had intended to convey more than those grants of themselves would include. Moreover, it is at least open to question whether the true meaning of the words in the deed to Goddard and Mills is not that Burbank thereby grants the right to draw water sufficient, to carry the two engines, in any event, or all the water that naturally runs in the stream in case such natural flow should be greater than would be sufficient for that purpose.

We are therefore of the opinion that the water rights granted by the first three deeds in the order of time were the ordinary rights of riparian owners, except that the right of each grantee to draw water was limited to a certain quantity during the specified hours of each working day, and that the grantor had no right to hold back the water so that less than that limited quantity would flow down. And if he did so the grantees might themselves raise the gate of the outlet of the pond and let down water in that quantity; but that the grantees acquired thereby no right to have the water in the pond held back for their benefit.

mills; though this duty would probably be sus-
pended in case a temporary stoppage should
become necessary for repairs, or other emer-
gency, outside of the usual course of the opera-
tion of the mill. Hankey v. Clark, 110 Mars,
262; Gould v. Boston Duck Co. 13 Gray, 442;
Pitts v. Lancaster Mills, 13 Met. 156; Drake v.
Hamilton Woolen Co. 99 Mass. 580.

Having reached these conclusions as to the
rights of the respective parties under their
deeds, it is further to be considered if these
rights have been varied by any adverse user
or prescription, on one side or the other.

The master having found that the grantees in the first three deeds in the order of time, by the true cons ruction of their grants, were entitled to have the flow of water regulated for their benefit, did not find that they had gained any right by prescription, nor is it contended in the argument that either of the plaintiffs has gained in this manner any greater right than his deed conveyed. Nor do we see any evidence to warrant such a claim. But the defendant earnestly contends that it had gained a right by prescription to manage the flow of water from the pond for its own benefit, in the The plaintiff Lapham, the owner of the manner in which it has of late years been ac third privilege, derives his title under a mort-customed to do; that is, by retarding the nat gage which made no special mention of water rights, and therefore the grantee took, as riparian proprietor, a right to the whole natural flow of the stream, subject to such reasonable use of the water by upper owners as the common law allows. Tourtellot v. Phelps, 4 Gray,

870.

This right, as has already been stated, does not include the right to have the water held back for his benefit by means of the reservoir and dam above, which the owner of the upper privilege may have a right of using reasonably and properly for his own benefit; but it does include the right to a larger quantity of water than the owners of the other privileges had, provided the natural flow of the stream would furnish it.

The master finds that the plaintiffs have lost by nonuser and abandonment the right to have the water come down in excess of ten hours for each working day. The defendant, however, concedes in its brief that there is no evidence to support his finding, and we discover none. Moreover, the rights of riparian owners are not lost in this way. Johnson v. Jordan, 2 Met. 234, 239.

Lapham was merely a riparian owner, and the other plaintiffs had the rights of riparian owners, subject to the qualifications contained in their respective deeds.

ural flow at times, and at other times letting
down more than the natural flow, as suited its
own advantage. The master has found to the
contrary, and an examination of the evidence
fails to satisfy us that this claim of right on
the part of the defendant is made out. The
importance of clear evidence to sustain a claim
of this description was remarked upon by Judge
Story, in Tyler v. Wilkinson, 4 Mason, 397,
404.

It appears to us that the acts of the defend-
ant in this direction have been gradual, and
that the right now contended for has never
been openly asserted till it was done by Red-
ding, the defendant's superintendent, within a
few years. The defendant has not suggested any
particular time or manner in which it or its
predecessors in title acquired by purchase,
grant or release any additional right to that
conveyed by the mortgage to Waldo. In 1836,
when the depositions in perpetuam were taken,
there was no intimation of such a claim. In
1861 and 1864, when the owners of lower
privileges assert that they contributed money
towards the expense of repairs, as they were
bound to do under their deeds, we find no in-
timation of any claim by the owner of the up-
per privilege that their rights under their deeds
had been impaired. In short, looking at the
testimony which is reported, all of which has

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been examined with reference to this point, I behalf of the defendant in recent years a larger though it is not necessary to refer to it here in detail, we are satisfied with the finding of the master that the defendant has not acquired the right by prescription to control the reservoir and the flow of the stream therefrom; and therefore the rights of the defendant must depend upon the deeds.

It appears by the evidence that Redding, the defendant's superintendent, while acting within the scope of his authority, has practically denied the plaintiffs' rights, and exercised in

authority than it rightfully possesses to control
the flow of the water. The defendant's
answers contain a similar claim. The plain-
tiffs, therefore, are entitled to maintain their
bills for relief, but the scheme proposed by the
master for regulating and apportioning the flow
of the water of the stream will have to be given
up, and his various findings which are incon-
sistent with the conclusions above expressed
must be disregarded.
Ordered accordingly.

TEXAS SUPREME COURT.

J. H. HILL and Wife, Appts.,

v.

B. B. KIMBELL.

(....Tex.....)

1. A miscarriage and serious impairment of the health of a woman occupying leased premises, caused by fright produced by a boisterous and violent assault upon some negroes on the premises, and in her presence, by the landlord, who knew her pregnant condition, gives a cause of action against him.

ability, the busband may maintain an action for the loss of service and also for any incident al loss or damage (Cooley, Torts, p. 226); or they may have a joint action.

Cooley, Torts, p. 227; Barnes v. Martin, 15 Wis. 240: Matteson v. New York Cent. R. Co. 35 N. Y. 487; Atlantic & P. R. Co. v. Hopkins, 94 U. S. 11 (24 L. ed. 48); Kavanaugh v. Janesville, 24 Wis. 618; Smith v. St. Joseph, 55 Mo. 456; McKinney v. Western Stage Co. 4 Iowa, 420; Mowry v. Chaney, 43 Iowa, 609; Berger v. Jacobs, 21 Mich. 215.

Injury to the wife's feelings is an element of

Western Union Teleg. Co. v. Cooper, 71 Tex.

2. The word "trespass" in the Statute al-actual damage.
lowing an action for trespass to be brought in
the county where it was committed, or where the
defendant has his domicil, includes actions of
trespass on the case.

(February 14, 1890.)

APPEAL by plaintiffs from a judgment of

the District Court for Freestone County sustaining an exception to the petition for the reason that defendant was not sued in the county of his residence, in an action to recover damages for injuries from fright caused by defendant's negligent acts. Reversed.

The case sufliciently appears in the opinion. Mr. J. D. Childs, for appellants: For an injury to the wife, either intentionally or negligently caused, which deprives her of the ability to perform services or lessens that

NOTE.-Trespass upon personal rights. Whenever there is a wrong there is a remedy. Booth v. Starr, 5 Day, 419; Hawley v. Bottsford, 27 Conn. 80; Bacon v. Thorp, 27 Conn. 251; Davis v. Van Sands, 45 Conn. 600.

507.

To maintain an action on the case it is not necessary that it should be supported by instances or precedents; it is sufficient if the case in question be covered by principle.

Wait, Act. and Def. p. 99.

The law implies that the culpable party must have intended natural consequences of that which he did or neglected to do, and it holds him accountable accordingly.

Cooley, Torts, p. 84, citing James v. Campbell, 5 Car. & P. 372.

An action lies for an injury caused by a fright,

Canning v. Williamstown, 1 Cush. 451. See also Gallagher v. Bowie, 63 Tex. 265; Stutz v. Chicago & N. W. R. Co. 73 Wis. 147, 9 Amn. St. Rep. 7€9.

under the general issue, to have such effect as they merit, in determining the verdict, by mitigation or otherwise. Sutherland v. Ingalls, 63 Mich. 620, 6 West. Rep. 389

So in an action of trespass for forcibly invading a Actions of trespass are transitory, except for in-plantation and carrying off some slaves and frightJury to real property. McKenna v. Fisk, 42 U. S. 1 How. 241 (11 L. ed. 117).

The distinction between trespass and trespass on the case is abolished by Rev. Stat., chap. 82, § 15; and a declaration in either form is good. Holmes v. Corthell, 5 New Eng. Rep. 794, 80 Me. 31.

Where one in violation of the law does an act which, in its consequences, is injurious to another, he is liable, irrespective of negligence. Van Norden v. Robinson, 45 Hun, 567.

An injury can be voluntary only when the party is aware of the danger to which another is subject, and, realizing the inevitable result, performs the act which inflicts the injury. Stone v. Dry Dock, E. B. & B. R. Co. 46 Hun, 184.

In an action of trespass for personal violence, all the circumstances of the transaction may be shown,

ening away others, it was held that evidence of consequential damages to the wood and corn of plaintiff was admissible. McAfee v. Crofford, 54 U. S. 13 How. 447 (14 L. ed. 217),

So where a landlord unlawfully evicted a tenant. Moyer v. Gordon, 12 West. Rep. 145, 113 Ind. 282. A party will be entitled to as much damages for any wrong or injury quietly endured as if he violently resisted. Southern Kansas R. Co. v. Hinsdale, 38 Kan. 507.

So it has been held that in a suit by husband and wife for damages for injuries inflicted upon the wife by an indecent assault, full compensatory damages may be awarded within the amount claimed. Wolf v. Trinkle, 103 Ind. 355, 1 West. Rep. 497. Compare McClelland v. Patterson (Pa.) 5 Cent. Rep. 734.

Where the foundation of the suit is some crime or offense, or trespass, for which a civil action in damages may lie, the suit may be brought in the county where such crime or defense or trespass was committed, or in the county where the defendant bas bis domicil.

|

Rev. Stat. art. 1193, ex. 8; P. & C. arts. 314, 495; Cook v. Ilertman (Tex.) 2 White & W. Civil Cas. 770; Armendiaz v. Stillman, 54 Tex.sult, produced by the same conduct, except 624; Jacobs. Crum, 62 Tex. 415; Illies v. Knight, 3 Tex. 313; Cahn v. Bonnett, 62 Tex. 674; Belo v. Wren, 63 Tex. 720; Cooley, Torts, p. 85; Bl. Com. bk. 4, §§ 5, 120.

Messrs. Gammage & Gammage for appellee.

Gaines, J., delivered the opinion of the

court:

In Texas there is no distinction between | had. Probably an action will not lie when "trespass" and "trespass on the case." there is no injury except the suffering of the Wait, Act. and Def. p. 100; Toner v. Sayre, fright itself, but such is not the present case. 4 Tex. 28; Kellers v. Reppien, 9 Tex. 443; Smith Here, according to the allegations in the peti1. Clopton, 4 Tex. 109. tion, the defendant has produced a bodily injury by means of that emotion, and it is for that injury that the recovery is sought. If, in his assault upon the negroes, he had discharged a missile at one of them, and it had missed its aim, and had struck Mrs. Hill, and produced a miscarriage, there is no doubt that he would be liable to an action; and it seems to us he should be equally held liable for the same rethat in the one case the means of the injury is a material substance, and in the other a mental emotion. Of course, since there is no intent to injure Mrs. Hill alleged, it will be a question for the jury to determine whether his conduct, so far as she was concerned, was negligent or not; that is to say, whether, under the circumstances, and with the lights before him, a reasonably prudent man would have anticipated the danger to her or not. We bave been cited by counsel for appellee to the case of Renner v. Canfield, 33 Minn. 90. In that case the defendant shot a dog near the residence of the plaintiff, and thereby frightened his wife and caused a miscarriage. The court says, in effect, that the charge to the jury was erroneous because the jury could, and would probabiy, infer from it that the defendant was liable in the action if the killing of the dog was unlawful; and for this error the judgment was reversed. In the opinion the court says: "If the acts of defendant amounted to any tort which, in any possible view of the case, could be held to be the prox imate cause of the injuries complained of, the gist of it must be negligence in shooting in such proximity to a human residence as might naturally and reasonably be anticipated to be liable to injure the inmates by fright or otherwise. We are by no means prepared to say that upon the evidence a verdict for plaintiff could be sustained even upon that ground. But it is enough, here, to say that the case was not submitted to the jury upon any such theory."

The case presented by the petition in this suit being novel, we were in doubt whether the facts alleged showed a cause of action, and for that reason set aside the submission at the last term, and requested counsel to submit arguments upon that question. The question has been argued, and the cause again submitted for determination. The defendant below, the appellee here, interposed an exception to the petition on the ground that he was not sued in the county of his residence, and the exception was sustained by the court. The correctness of that ruling depends upon the nature of the suit. The petition alleges, in substance, that plaintiffs were husband and wife, and were in possession under a lease of a dwelling-house and land belonging to defendant; that the wife was well advanced in pregnancy, and that defendant knew the fact, and that he was also aware that any undue excitement to a lady in that condition was likely to produce a serious injury to her health; that, notwithstanding these facts, he came to plaintiff's house, and in the yard, and in the immediate presence of the wife, he assaulted two negroes in a boisterous and violent manner, and that the assault was accompanied with profane language, and resulted in drawing blood. It was also alleged that defendant's conduct frightened Mrs. Hill, and brought on the pains of labor, and eventually produced a miscarriage, and otherwise seriously impaired her health.

After a very careful consideration of the petition, we are of opinion that its allegations show a cause of action. We have found no exact precedent for such an action, but that is no sufficient reason why an action should not be sustained. That a physical personal injury may be produced through a strong emotion of the mind there can be no doubt. The fact that it is more diflicult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient ground for refusing compensation, in an action at law, when the injury is intentionally or negligently inflicted. It may be more difficult to prove the connection between the alleged cause and the injury, but if it be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be

It is evident that the court did not decide that no action would lie even under the peculiar facts of that case. Besides, it appeared in that case that the defendant was not aware of the proximity of the plaintiff's wife at the time he discharged the gun.

We think the petition in this case discloses a cause of action, and this conclusion brings us to the question originally presented in appellant's brief. The petition alleged the residence of defendant to be in Leon County, and that the injury was inflicted in Freestone County, in which the suit was brought. The defendant excepted to the petition because the action was not brought in the county of his residence. The ruling of the court in sustaining the petition is assigned as error.

Our Statute provides that no person who is an inhabitant of the State shall be sued out of the county of his domicil except in certain cases. Rev. Stat. art. 1198.

Among the exceptions is the following: "Where the foundation of the suit is some crime or offense or trespass for which a civil

action in damages may lie, in which case the suit may be brought in the county where such crime or offense or trespass was committed, or in the county where the defendant has his domicil." Rev. Stat. art. 1198 (ex. 8).

It is clear that, unless the action in this case can be classed as a trespass within the meaning of that term in the provision quoted, the suit was improperly brought in Freestone County, and the determination of that point depends upon the further question whether the word is used in that Statute in its most restricted, or in a more enlarged, legal sense. In its widest signification, it means any violation of law. In its most restricted sense, it signifies an injury intentionally inflicted by force either upon the person or property of another. But it still has a signification in law much more parrow than the first, and more enlarged than the second, meaning given, and embraces all cases where injury is done to the person or to property, and is the indirect result of wrong ful force. Abb. Law Dict. Trespass.

In this last sense the word would include inJuries to persons or property which are the result of the negligence of the wrong-doer, and it seems to us more in consonance with the purpose and spirit of the exception to hold that it was in this sense that it intended that the word should be understood. We presume the exception was made in the interest of the injured party, and not of the wrong-doer; and we see no good reason why a distinction should be made between an injury resulting from intentional violence and one resulting from negligence. It occurs to us the consideration which induced the exception was that one who had been injured in his person or his property by the willful or negligent conduct of another should not be driven to a distant forum to get a redress of his wrongs.

In the case of Ten Eyck v. Runk, 31 N. J. L. 428, the Supreme Court of New Jersey construed the word "trespass," as used in a statute of that State, as descriptive of a class of actions, and held that it was not used in its most restricted sense, but applied also to all actions of trespass on the case. See also Cook v. Hertman, 2 White & W. Civil Cas. 770.

If, as we think, the word "trespass," in our Statute, was intended to embrace, not only actions of trespass proper, as known to the common law, but also actions of trespass on the case, it is clear that the action in this case was properly brought in Freestone County, and that the court had jurisdiction over the person of the defendant.

We conclude that the court erred in sustaining the exception to the petition; and for this error the judgment is reversed, and the cause remanded.

PEREZ, Plf. in Err.,

V.

RAYBAUD.

(......Tex.......)

A landlord is not liable to a servant of his tenant for injuries occasioned by a dan

NOTE.-Negligence; dangerous premises. Whether a building has been made unsafe by the agency of time or the acts of trespassers is imma

gerous condition of the premises existing at the time of the lease, although he subsequently promised, without any new consideration, to repair the premises, if there was no covenant to repair in the lease.

DR

(February 4, 1890.) ́

RROR to the District Court for Galveston defendant in an action to recover damages from County to review a judgment in favor of a landlord for personal injuries alleged to have resulted from the defective condition of the leased premises. Affirmed.

Commissioner's opinion.

The facts sufficiently appear in the opinion.
Mr. L. E. Trezevant for plaintiff in error.
No appearance for defendant in error.

Collard, J., delivered the following opinion:

Suit by plaintiff in error, servant of a tenant, against defendant in error, the owner of the rented premises, for damages resulting from the falling of a cistern. The petition alleged that defendant, the owner of the premises, leased them to A. Watts to use as a restaurant; that he was employed by Watts; that there was a cistern upon the premises of the capacity of 8,000 gallons, which, because of its defective suppor s (the same being decayed and insufficient) and because of the weight of water it contained, fell upon plaintiff while he was in the discharge of his duties, without his fault, causing serious and permanent phys ical injuries; that the defect in the cistern existed at and before the lease to Watts; that defendant knew of the defect in the cistern and its supports before the injury, and, at the request of Watts, had promised to have the same repaired before it fell, but had failed and neglected so to do; that plaintiff was at the time of the injury ignorant of the unsafe condition of the cistern; that its bad condition was not the result of temporary and unusual use and wear, but of age and natural decay. The court below sustained a general demurrer to the petition, and the case is here on writ of error, with a general assignment by plaintiff that the court erred in sustaining the demurrer. There is no brief on file for defendant.

It is well settled that the owner of leased premises is liable to the public or to third perstructure on the premises, when the defect exsons for injuries resulting from a defective isted at the time the lease was made, or when be had covenanted to repair and keep in repair. 267; Owings v. Jones, 9 Md. 108; Grady v. Thomp. Neg. 317; Marshall v. Heard, 59 Tex. Wolsner, 46 Ala. 381; Helwig v. Jordan, 53 Ind. 21.

The case at bar is not an action by a stranger, but by the servant of a tenant against the owner; and in such case the rule seems to be that the landlord is liable only when he had contracted or is under obligation to keep the tenement in repair, or has been guilty of fraud or deceit which would release the tenant from Lis implied obligation to repair.

"It is a general rule," says Mr. Thompson

terial as affecting the owner's liability, where it was within his power to prevent such condition, as, in either event, it is the owner's duty to keep his

in his work on Negligence (vol. 1, p. 323,
3) "that, in the absence of fraud or deceit,
there is no implied covenant that the demised
premises are fit for occupation, or for the par-
ticular use which the tenant intends to make of
them.
Therefore the tenant has no
remedy against the landlord for suffering the
premises to get out of repair,
and
this rule extends to servants and others enter-
ing under the tenant's title."

fraud, because he does not owe the tenant the duty of repairing, as he does the public and strangers.

The court held

The cases cited by plaintiff, holding the landlord liable, are cases where the injury was to third persons lawfully upon the rented premises, or where the landlord owed a duty to the public to repair. The cases cited are Albert v. State, 66 Md. 325, 6 Cent. Rep. 447; Rankin v. Ingwersen, 49 N. J. L. 481, 8 Cent. Rep. 371; In Jaffe v. Harteau, 56 N. Y. 401, the court Joyce v. Martin, 15 R. I. 558, 4 New Eng. Rep. states the doctrine as announced in the fore- 796; Dalay v. Savage, 145 Mass. 3, 4 New going quotation, and says: "The question Eng. Rep. 863. The first case was a suit by a must be regarded as settled by authority." The minor for damages for death of parents who action in that case was against the landlord for were drowned in consequence of the negligence an injury of the wife of the sub-lessee, and, re- of the owner of a wharf leased. The next case ferring to the case of Godley v. Hagerty, 20 Pa. was a suit by a tenant of one part of a build387, which held a contrary doctrine, says that, ing for damages resulting from the bursting of in that case, "some importance was attached, water pipes in another part of the building, octo the fact that the building was erected by the pied by another tenant, who bad covenanted defendant. This may have been regarded as to repair, where it was held that the landlord proper in that case, as tending to show him of the tenant on whose premises the pipes were guilty of fraud;" and the court proceeds to defective was liable. The next case was where show that cases where one erects a nuisance on the owner of a defective wharf leased it in a his premises, and afterwards parts with the defective condition. It was held that he was possession, have no application to the case un-liable to one lawfully using it for the purposes der consideration; and then concludes, that "there is no reason for holding the lessor, in the absence of any agreement or fraud, liable to the tenant for the present or future condition of the premises, that would not be equally applicable to a similar liability sought to be imposed by a grantee in fee upon his grantor." In none of these cases was the suit by the The following cases, besides those cited in the tenant, or the servant of the tenant, of the foregoing case, assert the same doctrine, that premises, having the defective structure upon there must be an express covenant or agree them, and none of them is authority for the ment by the lessor to keep in repair, in order proposition that the landlord would be liable to make him liable to the tenant. Scott v. to such tenant or servant, where he was under Simons, 54 N. H. 431; Brewster v. De Fremery, no obligation or contract to repair. The mere 33 Cal. 341; O'Brien v. Capwell, 59 Barb. 497. fact that there was a nuisance on the premises The last case cited is, in principle, like the at the time the property was rented would or one before us. The action was by a washer-dinarily render the lessor accountable for damwoman in the employ of the tenant, against the landlord, and the court held that where there is no fraud, false representations or deceit, and, in the absence of an express warranty or covenant to repair, there is no implied covenant in favor of the tenant; and, as the plaintiff stood in his place, there was no liability on the part of the landlord to her.

for which it was intended.
both lessor and lessee liable.

Dalay v. Savage, the next case cited, was an action for damages by a person who, while lawfully using a way abutting leased premises, fell into a coal hole upon the way.

ages to a stranger lawfully passing thereon, whether he contracted to repair or not; and, in case he had not so contracted, both the lessor and lessee would be liable.

It is alleged, however, in plaintiff's petition, that he did not know of the defects in the sup ports of the cistern, but that defendant did know the fact at and before the injury, and The authorities are abundant sustaining the that at the request of her tenant, Waits, she doctrine that the owner cannot create a nui- had promised to make the necessary repairs, sance on his premises, and relieve himself of but had failed and refused to do so. This alliability to a third person injured thereby, by legation may have been set up to show that leasing. It is also the law that he would be defendant was liable, because she had so promliable to a stranger where the defective struc-ised and contracted. The promise was merely ture causing the injury is on the premises gratuitous, not made at the time of the lease, when they are leased; but such liability would and was no part of the original contract. It not exist in favor of the tenant, where there is was without consideration, and could not be no contract by the landlord to repair, and no enforced.

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One who enters the private apartments of another at the mere license of the latter does so subject to all the attendant risks. Schmidt v. Bauer, 5 L. R. A. 580, and note, 80 Cal. 565.

Placing an iron railing with pointed top around an area in front of a house is not negligence such as to create a liability for injuries by one of such points to the hand of a traveler, which he puts out to save himself from falling when he slips on an icy pavement. Kelly v. Bennett (Pa.) 7 L.R. A. 120, and note, 25 W. N. C. 368.

Where a tenant who has long lived in the building, and knows that the cellar stairs are rickety and dangerous, goes down them for a mere trifle, and is injured, she is guilty of contributory negligence; and the fact that her landlord has had notice to repair the stairs and has failed to do so is immaterial. Town v. Armstrong, 75 Mich. 580.

Owner of private premises not liable for neglect to keep them in repair. See note to Schmidt v. Bauer (Cal.) 5 L. R. A. 580.

If nuisance is created by owner, damages are recoverable. See note to Wasson v. Pettit (N. Y.) 5 L. R. A. 794.

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