There was no proof of actual negligence on the part of the defendants in receiving the package, or in their failure to ascertain its dangerous character; nor, in view of the condition of their knowledge, of the want of means of knowledge, and the absence of any reasonable ground of suspicion, were they chargeable with negligence in the handling of the package at the time of the explosion. The defendants either repaired or paid for the repairs (to the amount of about $6,000) of the premises occupied by themselves, except a portion of certain repairs made by plaintiff, which were necessarily made in connection with repairs made to those portions of the premises occupied by the other tenants of the plaintiff, and which defendants omitted to pay for by mistake.

Opinion by SAWYER, J. (after stating the facts).

As to the waste upon the premises demised to the defendants, I think that, upon the facts found, the defendants are liable; although, as will hereafter appear, there was, in my judgment, no negligence on their part. There was, doubtless, fault on the part of those who delivered the explosive substance to defendants for carriage over their express route, without informing them of the dangerous character of the article, for which they may be liable to defend

ants.

$215. Liability of tenant for waste.

The rule seems to be established, that, with respect to liability for waste, the tenant is in a position analogous to that of a common carrier, and, without some special agreement to the contrary, responsible for all waste, however or by whomsoever committed, except it be occasioned by act of God, the public enemy, or the act of the reversioner himself. 4 Kent, Com., 77; Attersol v. Stevens, 1 Taunt., 182; Cook v. Champlain Transportation Co., 1 Denio, 91; 2 Eden, Inj., 198, and notes. In White v. Wagner, 4 Harr. & J., this doctrine was carried out in an extreme case. The tenant is held responsible to the landlord, and left to his remedy over against the delinquent party. The liability does not depend on mere negligence, but it is imposed on the same grounds of public policy as those upon which the strict liabilities of common carriers are made to rest.

§ 216. Where the lease exempts the tenant from liability for damages by the elements, he is still liable for waste resulting from accidents; so, where the tenant covenants to occupy for a particular business, he is liable for accidents inci

dent to such business.

in as

It is claimed in this case that the covenant in the lease "at the expiration of the term to quit and surrender the said demised premises good condition as the reasonable use and wear thereof will permit, damages by the elements excepted," is a waiver of the tort; that it only binds the defendants to reasonable care, and protects them from liability for waste resulting from accidents occurring without their fault. Also, that the covenant to "occupy the premises solely for the business of their calling, to wit, banking and express offices, and that they are not to underlet the same to any other person or persons for any other business in part or the whole without the prior consent in writing of the plaintiff," both entitles and requires the defendants to occupy the premises as an express office, and that by authorizing and requiring the defendants so to occupy, the plaintiff took upon himself all the risks incident to such business, not resulting from the wrongful act or negligence of the defendants; and that the accident in question is one of the risks so incident to the business, and for which defendants are not liable. After

.

some hesitation I conclude that neither of these positions is tenable. As to the first, one or two authorities seem to favor that view, but the weight of authority appears to be the other way. The authorities cited to sustain the latter proposition do not appear to me to be applicable to the facts of this case. If the defendants' counsel is correct in his position, I do not perceive why a tenant, who is to occupy the premises for a lawful purpose, in accordance with the terms of his lease, should be liable in any case for waste resulting from the wrongful act or negligence of a stranger, he himself being faultless. This would be totally inconsistent with the rule as stated in the authorities already cited.

§ 217. A tenant is liable for waste where he occupies only a part of a building. It is also insisted that no waste can be found where the land itself is not the subject of the demise, and that, as defendants were only tenants of the basement and first story, there could be no waste. It does not appear to me that the authorities cited go to that extent. There may be a freehold estate in apartments. 1 Greenl. Cruise, 49, § 21. The absolute destruction of the basement and first floor, demised to defendants in the building described in the complaint, falls clearly within the defendants' own definition of waste, viz.: "Waste is a spoil and destruction of the estate, either in houses, woods or lands, by demolishing not the temporary profits only, but the very substance of the thing." Here is the destruction of the substance of a house, and even of land, in the legal sense of the term, which embraces the building. The result is that the defendants are liable for the waste on the premises demised to them.

§ 218. Liability of tenant for damage to property not occupied by him. As to the premises demised to other tenants, the question of liability depends upon entirely different principles. The action is not based upon the covenants in the lease to defendants, and it is, therefore, unnecessary to inquire whether there was a breach of the covenant in that lease, not to introduce into the premises demised to defendants any articles "dangerous from their combustibility." And I do not preceive that the relation of landlord and tenant, between the plaintiff and defendants, as to other premises than those injured, has any bearing unfavorable to the defendants upon the question of their liability. The defendants, in my judgment, stand in this kind of action in no worse position as to the premises occupied by Bell and the Union Club, than they would have been in had the explosion taken place upon premises of which they themselves were seized in fee, and destroyed the adjoining premises leased by plaintiff to said Bell and the Union Club.

What then are the rights and responsibilities of the parties upon the facts, considered as strangers to each other, with respect to those premises? If the defendants are liable, it must be upon one of two grounds: either, firstly, that a party who introduces upon his own premises a highly dangerous substance, which, in consequence of such introduction, in some way injures his neighbor, is liable for the damages at all events, and under any and all circumstances, without regard to fault or negligence; or secondly, that the injury has been caused through the negligence and want of proper precaution and care in the party in introducing, or in managing such a substance after its introduction. Plaintiff's counsel insist that defendants are liable upon both grounds.

In support of the first ground, the strongest case cited is Fletcher v. Ryland, Law Rep., 1 Exch., 265, and the same case in the house of lords on appeal, affirming the judgment of the court below. Law Rep., 3 App. Cas., 330. The

defendant in that case constructed a reservoir to supply water for a mill situate upon his own premises, into which he diverted from their natural course. the waters of a stream. In the construction of the reservoir, the engineer and workmen found five old shafts, which had been filled up with marl and clay. The shafts led down to certain passages, which had been excavated in working a coal mine, and which extended to, and connected with, the mine of the plaintiffs on their own premises, adjacent to those of defendant. The defendant was not aware of the existence of either the shafts, or passages on his premises, but his workmen and engineer, in constructing the reservoir, found the shafts, although they did not know with what they connected. The water from the reservoir broke through one of the shafts, ran through the passages into plaintiffs' mine, and produced the injury in question in the action. The court found, as a fact, that there was negligence on the part of the defendant's engineer and workmen in the construction of the reservoir; but the decision was not put on that ground. The defendant was held liable, and it must be admitted that the court stated broadly that when a party brings an article upon his premises known to be dangerous, and liable to escape upon his neighbor's premises and do injury, he is bound to see that it does not escape and do harm.

The other cases cited are cases where parties in blasting with gun or blasting powder upon their own premises have thrown rock upon and injured their neighbors, or their neighbors' premises, and cases of a similar character; as Hay v. Cohoes Co., 2 N. Y., 159.

The observations of the judges in delivering their opinions must be considered with reference to the facts of the cases decided. In all these cases, and in the examples cited by the judges as illustrations of the principle adopted, the liability to escape and do injury, and the dangerous character of the article introduced, were necessarily known to the party introducing it. The properties of water and gunpowder are known to everybody. The liabil ity of water collected in large bodies to escape through pressure, and of gunpowder to violently explode and do injury, are known to all persons of common sense in civilized communities, no matter how ignorant they may be in literary and scientific matters. It is a part of the common and general knowledge of the community, of which everybody is presumed to be possessed, and of which, as such, the courts are bound to take judicial notice. Any party who introduces these things into his premises does so with a full knowledge of their dangerous properties, and of their liability, even with the utmost care and precaution, to elude his vigilance, baffle his control, and escape and injure his neighbor.

It is worthy of attention that in the case of Fletcher v. Ryland, in the court of exchequer, two of the judges were of opinion that defendant was not liable, and judgment was entered in accordance with this view; but the judgment was reversed on appeal in the exchequer chamber, and this last judgment af firmed in the house of lords. Blackburn, J., who delivers the opinion of the court in the exchequer chamber, does not fail to note knowledge on the part of defendant of the liability to escape and do mischief, as an important element to be considered on the question of liability. He says: "It seems but reasonable and just that the neighbor who has brought something on his property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous, if it gets on his neighbor's, should be obliged to make good the damage which ensues, if he does not suc

ceed in confining it to his own property." 1 Law Rep. Exch., 280. And his illustrations clearly show that knowledge is an important element in the liability. For instance, he says that a man is answerable for damage done by the escape of his beasts into his neighbor's field, for the grass they eat and trample on; for this is the natural consequence of their escape; but he is not liable "for any injury to the persons of others, for our ancestors have settled that it is not the general nature of horses to kick or bulls to gore; but if the owner knows that the beast has a vicious propensity to attack man he will be answerable for that. Id. Again, he says, "so in May v. Burdett the court, after an elaborate examination of the old precedents and authorities, comes to the conclusion that a person keeping a mischievous animal, with knowledge of its propensities, is bound to keep it secure at his peril.' And in 1 Hale's Pleas of the Crown, 430, Lord Hale states that when one keeps a beast, knowing his nature or habits are such that the natural consequence of his being loose is that he will harm men, the owner 'must, at his peril, keep him up safe from doing hurt, for though he use his diligence to keep him up safe, if he escape and do harm, the owner is liable for damages.' . . In these latter authorities, the point under consideration was damages to the person, and what was decided was, that when it was known that hurt to the person was the natural consequence of the animal being loose, the owner should be responsible in damages for such hurt, though when it was not known to be so the owner was not responsible for such damages; but where the damage is, like eating grass, or other ordinary ingredients in damage feasant, the natural consequence of the escape, the rule as to keeping in the animal is the same." Id., 281. In affirming the judgment of the exchequer chamber in the house of lords, the lord chancellor quoted the first passage above cited from the opinion of Blackburn, J., together with the context, and said, "In that opinion, I must say, I entirely concur." 3 Law Rep. App. Cas., 340.

§ 219. To render a party liable for damages to adjoining premises from a dangerous article introduced upon his own premises, he must be charged with knowledge of the dangerous character of such article, or there must be proof of negligence.

Thus, it is apparent from the language used and the illustrations cited, that knowledge of the dangerous character or mischievous propensities of the thing or animal introduced, on the part of the party introducing it, is an essential element in the cause of action. The "natural consequences" of the escape must be known, but the ordinary natural consequences of the escape of a tame beast, as the eating and trampling down of grain, grass, herbage, etc., the damage from flooding with water, filth, etc., are matters of universal knowledge, of which everybody is presumed to be cognizant, and of which everybody is bound to take notice. Since a party is bound to know those things, the law presumes that he does know them, and holds him responsible without special allegation or proof of knowledge. But all tame animals are not vicious the goring of a man is not the ordinary consequence of an escape of a tame beast. When such a beast is vicious and liable to attack and gore people, or do other like kinds of mischief, it is an exception to the general rule, and all mankind are not presumed to know his vicious propensities; hence, in order to render the owner liable for such mischiefs done upon an escape, it is necessary to specially bring home to him knowledge of his vicious tendency. When this knowledge is brought home to him, he is presumed to know the ordinary consequences of the escape of such animal, and is liable for his vicious

acts as in other cases of knowledge. I know of no case of which this doctrine has been held, unless knowledge of the propensities or character of the thing working the injury must be presumed by the law from its general known character, or knowledge was specially brought home to the party dealing with it.

Knowledge, therefore, in some form, must be an essential element in the cause of action. There is some reason for holding that a party who introduces into his premises a substance known to him, or which he is bound to know from the present universal knowledge of mankind, to be dangerous to his neighbor, shall do so at his own peril, and be responsible for the consequences. He deals with the article with full knowledge of his peril, and knowingly assumes the risk. Should he suffer, it would be in consequence of his own folly, if not his fault. But why should a person innocently ignorant of the qualities of a dangerous thing unconsciously brought upon his premises in the pursuit of a lawful calling, not only be compelled to sustain the damage suffered himself, but, also, that suffered by his neighbor from an accident resulting therefrom without his fault. Upon what sound reason can such a doctrine be sustained? To carry the rule to that extent would be to make every man an insurer of his neighbor against the consequences of all his acts, however faultless they may be. In my judgment, the law is not so rigorous and unrea

sonable.

But it is not clear, that, even as to things universally known to be dangerous, the doctrine laid down can be sustained in the broad language sometimes used in discussing a given state of facts. Fire, for instance, is an element known to all men to be dangerous, yet there are numerous cases where fires purposely set in a party's own grounds have spread to and damaged his neighbor's premises, as, for example, in clearing lands, in which the party setting the fire has been held not to be liable, unless there was negligence. So in the case of water, it was held that when one builds on his own land a milldam, on a proper model, and the work is faithfully done, he is not liable to an action, though it breaks, and his neighbor's dam and mill are thereby destroyed. Livingston v. Adams, 8 Cow., 175. To the same effect are Hoffman r. Tuolumne Water Co., 10 Cal., 413, and Campbell v. B. R. & A. W. & M. Co., 35 id., 683. These were not cases that could be referred to vis major. I can perceive no good ground for distinction as to the question of liability, between thus accumulating upon one's own land water in a natural stream largely beyond the natural quantity, and introducing it from abroad. See, also, as to bursting of water pipes, Blyth v. Birm. Water Co., 11 Exch., 781. These are but examples of a very large number of cases of like character. Why were not the defendants in these instances responsible for all damages resulting to their neighbors, if a party introducing or dealing with a dangerous article, thing or element upon his own premises is liable at all events, and under all circumstances, without reference to any negligence or any fault on his part? And in these cases the parties had knowledge of the dangerous character of the matters with which they were dealing. If I am right in the views thus far suggested, the first proposition upon which the liability of defendants for the injuries to the premises occupied by Bell and the Union Club is rested is untenable.

There must then have been knowledge on the part of defendants of the dangerous character of the explosive substance introduced upon the premises oc