duty to use it in such manner as will not entail injury to or upon a citizen rightfully entering upon same, and using reasonable and ordinary care in so doing; and this duty the person or private corporation using such property cannot, as a matter of public policy, escape by leasing the same for compensation to a tenant."

This instruction is erroneous in at least two respects: First-Municipal authorities hold the streets of a city in trust for the use of the public, and cannot divert a street, or any portion thereof, to any purpose inconsistent with the full and free right of the public to use the same. But the city of Chicago had ample power to authorize the construction of the vault in question under the sidewalk, and the coal-hole in the walk to connect with the vault thereunder, provided the paramount right of the public to the full, free and safe use of the street, in all of its parts, was not thereby infringed. (Gridley v. City of Bloomington, 68 Ill. 47; Gregsten v. City of Chicago, 145 id. 451.) The declaration averred the city authorized the construction of the vault and coal-hole here in question. When an abutting owner or other person makes an excavation in or under the sidewalk of a street without license from the municipal authorities he is a trespasser and the excavation a nuisance, and he becomes liable to any one who may be injured thereby without contributory negligence on the part of such injured person. If, however, such abutting property owner, or other person so making the excavation in or under the sidewalk of a public street, has authority or license from the proper city authorities so to do, and the work is not inherently, in nature and character, a nuisance, the licensee is liable only in the event he fails to use ordinary care and diligence in constructing the excavation and keeping it in such repair that it shall be as safe for the use of the public as any other part of the sidewalk. (Elliott on Roads and Streets, p. 772, and authorities cited in note 3; Congreve v. Morgan, 18 N. Y. 84; McGuire v. Spencer, 91 id. 303;

Shearman & Redfield on Negligence,-5th ed.-sec. 703; Trustees v. Foster, 156 N. Y. 354; 50 N. E. Rep. 971.) Counsel for the appellee concede the appellant company was a licensee, and not a trespasser, and that the duty devolving upon it was no greater than to exercise ordinary care. In their brief counsel say: "We do not charge it, as trespasser, as maintaining a nuisance; we merely charge it with the obligation of exercising due care and diligence in the maintenance of the sidewalk." The instruction charged it upon the appellant company as an absolute duty to keep the sidewalk safe, and excluded from consideration as defense every circumstance of care, prudence or diligence on its part to make and keep it safe, in determining as to its liability for the injury to the appellee. Having license from the city to construct the vault and coal-hole, only reasonable and ordinary care and precaution for the public safety was, in any event, required by law of the appellant.

Second-It was error to advise the jury, as was done by the instruction, that out of considerations of public policy the appellant company, being the owner of the premises, must be held to the duty of keeping the coalhole in question in such condition that it would not entail injury upon any one who should attempt, while exercising ordinary care, to use the sidewalk, and that this duty was in nowise affected by the fact the basement, including the vault and coal-hole, had been leased for compensation to and was in the possession of a tenant. There was no evidence tending to show the injury was occasioned by reason of any defect or fault in the original construction of the vault, the coal-hole or the cover to the hole. The negligence on which the right to recover rested was, that the cover of the coal-hole had become insufficient and defective through a failure to keep it in repair. There was evidence tending to show the vault and coal-hole were appurtenant to the basement, only, of the building, and that the basement, including the

vault and the coal-hole, was, and for some years prior thereto had been, in the exclusive possession of a tenant of the appellant company, who held the same under a lease, wherein he had covenanted that he had received the premises "in good order and condition" and would keep the same in "good repair during the period of the lease." The tendency of this testimony was to establish that the negligence (if any) which caused the injury to appellee was not that of the appellant company. The general rule is, that the occupant of premises is responsible for injuries inflicted upon another by reason of the neglect or failure to keep the premises in repair. (City of Chicago v. O'Brennan, 65 Ill. 160; Gridley v. City of Bloomington, supra; City of Boston v. Gray, 10 N. E. Rep. 509.) This court has recognized exceptions to this general rule, as follows: The owner of leased premises may be made liable for such injuries (a) if the covenants of the lease require that he shall keep the premises in repair; (b) if the dangerous or defective condition by which the injury was occasioned existed when the premises were leased; (c) if that which occasioned the injury was a nuisance and was upon the premises when the lease was executed. (Gridley v. City of Bloomington, supra; City of Chicago v. O'Brennan, supra; City of Peoria v. Simpson, 110 Ill. 294.) In the case at bar the coal-hole was placed in the sidewalk and the vault underneath it constructed with the consent of the city authorities. There is no proof or claim the work of construction was improperly or unskillfully done, or of other grounds upon which to base an insistence the premises were let with a nuisance upon them, or that the coal-hole, or the cover thereto, was in a dangerous or defective condition when the appellant company parted with the possession and control thereof. The tenant expressly covenanted he would keep the same in good repair, and was in full and exclusive possession of the basement and of the vault under the sidewalk, and, so far as the appellant company is concerned, of the "hole"

in the sidewalk leading to the vault. Hence the liability of the appellant company cannot be predicated upon any of the exceptions to the general rule which this court has heretofore recognized.

It is contended, however, that another exception should be declared in cases such as this, where the owner of a building is granted the privilege of excavating a vault under the sidewalk of a public street and opening a coal-hole in such side walk for the benefit of his premises; that in such instance the owner of the premises assumes, by implication, the duty of keeping the sidewalk where he has opened it in as good condition and as safe for the public use as if the opening had not been made; that such duty is imposed by law for the public safety; and while it is conceded this duty runs with the land, and the alienation of the entire premises, either permanently, by deed, or temporarily, as by a lease, would transfer the duty to the grantee or tenant, still it is urged the conveyance of an undivided interest, or demise of a part, only, of the premises, should not be held to relieve the owner of the duty he owes to the public, and to cast the same upon the tenant of a part, only, of the premises, though the opening in the sidewalk has no relation to any other portion of the building other than that in possession of the tenant. Public safety and sound public policy, it is urged, demand that nothing less than the alienation or parting with the possession of the entire premises should operate to relieve the owner of such premises from the duty which was originally imposed upon and impliedly accepted by him. The view seems to have obtained the sanction of the court of appeals of the State of New York in the case of Trustees v. Foster, 156 N. Y. 354; 50 N. E. Rep. 971. We do not regard the case of Irvin v. Fowler, 5 Robertson, 482, as also authority for the view. In that case, Fowler, the landlord, and his tenant, were held liable to a stranger for injuries received by falling through a coal-hole in the sidewalk. Fowler,

the owner and landlord, was not in possession, but the coal-hole had been constructed without the consent of the city and constituted a nuisance, and Fowler let the premises with the nuisance upon them. His case fell within one of the exceptions to the general rule hereinbefore mentioned as recognized in this jurisdiction.

It will be observed the argument and contention of appellee on this point do not go far enough to uphold and sustain the instruction. The instruction, in substance, declares, as a proposition of law, that the owner of property who has obtained a license from the city to excavate a vault under the sidewalk and a scuttle-hole in the sidewalk has the duty imposed upon him to answer for all injuries which may be occasioned thereby to any one who is injured while attempting, with due care, to pass along the sidewalk, and this liability remains in full force though the owner has leased the property for compensation to a tenant and delivered over the possession thereof to such tenant. The view of the instruction is, the duty is a continuing duty, and remains in full force as long as the owner of the property is deriving benefits, by way of rent or compensation, from a tenant for the use thereof. This view is clearly erroneous. In the case so much relied upon by counsel for appellee, viz., Trustees v. Foster, supra, where an injury had been occasioned by a fall into a grate over a coal-hole in the sidewalk of a public street, it was said: "Upon the transfer of the entire interest and possession to another, as the duty runs with the land, it would be cast upon the grantee. So a lease of the entire premises, and possession thereof to the tenant, would doubtless throw the burden upon the latter. (Shearman & Redfield on Negligence,-5th ed.secs. 710, 713.) The conveyance of an undivided interest, however, would not have that effect and the demise of a part of the premises should not. The obligation goes with the land and cannot be discharged by a partial alienation of the land,-at least unless the alienation, if