I concur in the result reached and in much that is said in the[8-10] foregoing opinion, but I cannot subscribe to the tacit recognition of the doctrine which relieves a landlord of liability in such a case merely because he has leased the building with the appurtenance in good condition, nor can I agree that the fact that the landlord retains control over a portion of the building is sufficient to take a case out of the operation of this doctrine. In my opinion, the reasoning in the CanandaiguaCase, and those following it, is illogical. If an owner can relieve himself of all responsibility by leasing his entire building, why should he be held liable because he retains control over a portion of the building to which the offending improvement is not appurtenant any more than in a case where he leases the entire building but owns an adjoining structure? *Page 384
Wood on Landlord and Tenant (919) declares "the doctrine is conflicting," stating the above and the contrary doctrine. I concede that the above doctrine is sustained by the numerical weight of authority, but am convinced that the contrary doctrine is supported by reason, logic and every consideration of justice and equity.
Many decisions announcing the above doctrine are based on facts showing negligence on the part of the tenant alone, as where the tenant or an employee, without the knowledge of the landlord, left an otherwise sufficient cover off or improperly adjusted, thus disclosing no breach of duty on the part of the landlord; with those decisions I agree, as "actionable negligence arises only from a breach of legal duty" (Jonosky v. NorthernPacific Ry. Co., 57 Mont. 63, 187 P. 1014, 1015), and the controlling question in all personal injury actions is: Did the defendant breach a duty owing to the injured party? Where, however, an injury is suffered by reason of the fact that a coal-hole cover, or other appurtenance to the abutting building, set into the sidewalk, has been permitted to become dangerous to the traveling public by being out of repair, liability depends upon whether or not the party charged was in duty bound to repair it.
The decisions holding the tenant, and not the landlord, liable are built up around the supposed common-law duty of the tenant to make all repairs, but, as shown in the foregoing opinion, the common-law duty of the tenant extends only to repairs necessitated by reason of his negligence, and, even if in some states this test of liability is not recognized, it exists in this state by reason of our own statutes cited in the above opinion.
The common-law duty of the tenant is extended, in the decisions here criticised, by the specious reasoning that the landlord cannot enter upon the premises to make the repair, without committing a trespass; where the repair is to be made within the leased building, this reasoning may be logical, but, when applied to a case involving a mere appurtenance grafted upon a public way to which the landlord, as a member *Page 385 of the general public, has free access at all times, the courts, at best, indulge in a fiction even in those states wherein the abutting owner holds the fee to his side of the street, and where, as here, the fee is in the city, the fiction becomes an absurdity. Under the circumstances here shown, how can it be said that the owner would be a trespasser in going upon the public sidewalk to repair a condition existing upon the surface thereof? "When the reason of a rule ceases, so should the rule itself." (Sec. 8739, Rev. Codes 1921.) The reason for the strained construction of the common-law duty of the tenant having ceased, the doctrine founded upon the fiction should not be applied.
It is said in the foregoing opinion that the test of the landlord's liability in such a case is his power to have remedied the wrong. In this state, under the circumstances of this case, the "power" of the defendant to have remedied the wrong by repairing the coal-hole cover, as he promised to do, is incontrovertible; but still he cannot be held liable in damages for the injury suffered, unless the record shows "actionable negligence" by failure to perform a legal duty, and, as the accident happened on a public sidewalk, ordinarily liability would attach to the municipality rather than the owner of the abutting property, as the duty to keep the sidewalk in reasonable repair is imposed upon the city, and not on the owner of abutting property. (13 R.C.L. 321.) An exception to this rule is recognized in all of the cases on the subject, regardless of which of the conflicting doctrines here discussed is adopted, i.e., that permission by the city to use a portion of the sidewalk for the benefit of abutting property carries with it the reciprocal duty to repair; hence the right to recover from either the landlord or the tenant, as the case may be.
In my opinion, the correct doctrine for application here was early developed in New York, though apparently abandoned in theCanandaigua Case, as follows: As a general rule, the owner of property abutting on a street is not in duty bound to keep the sidewalk in repair, and therefore is not liable to *Page 386 a traveler injured by defects therein, not caused by him (Cityof Rochester v. Campbell, 123 N.Y. 405, 20 Am. St. Rep. 760, 10 L.R.A. 393, 25 N.E. 937), but "where an abutting owner avails himself of a privilege, which may be accorded to him, of placing something in or by the sidewalk which will serve as a convenience or easement to his premises, he becomes also charged with the duty to see that the place thus used is maintained in a safe and proper condition" (Matthews v. De Groff, 13 A.D. 356,43 N Y Supp. 237, 239); not only must he place that portion of the sidewalk used in a reasonably safe condition, but must keep it in repair in consideration of the private advantage secured (Heacock v. Sherman, 14 Wend. (N.Y.) 58; Congreve v.Morgan, 18 N.Y. 84, 72 Am. Dec. 495; Mullins v.Siegel-Cooper Co., 95 A.D. 234, 88 N.Y. Supp. 737). As this is a duty imposed by law upon the owner of the building, as such owner, it is immaterial that, at the time of the accident, the premises were held by a tenant, although circumstances may render the tenant as well as the landlord responsible, in which case they may be joined in an action for damages. (Whalen v.Gloucester, 4 Hun (N.Y.), 24; Irvine v. Wood, 51 N.Y. 224, 10 Am. Rep. 603.)
"It may be safely assumed, that an individual making an excavation in a street, for his own benefit, with the consent of a municipal corporation, could not claim an immunity which the corporation itself would not possess, if it were doing the same work for the benefit of the public." (Creed v. Hartmann,29 N.Y. 591, 86 Am. Dec. 341.)
In other words, on the granting of the privilege to an individual to use a part of the street or sidewalk for the benefit of his property, the public duty which the city owes to the traveling public to keep the sidewalk in repair attaches to the individual with respect to that which he, for his private benefit and with the consent of the city, substitutes for a portion of the sidewalk, and, this being a public duty, the individual cannot, any more than can the city, claim immunity from liability for failure to perform the duty by showing a private contract of lease of the abutting property. *Page 387
The New York doctrine is approved by Dillon in his work on Municipal Corporations, fifth edition, volume 4, page 3030. He calls attention to the fact that it is "denied to be sound" inFisher v. Thirkell, 21 Mich. 1, 4 Am. Rep. 422, the leading case announcing the contrary doctrine, but declares: "Since these (improvements) are made for the exclusive benefit of the owner of the building, the author sees nothing unreasonable in the doctrine that he is bound to see that they do not become nuisances by becoming dangerous. There may be the additional liability of the tenant and of the municipality in proper cases."
In support of this doctrine, see Moore v. Townsend,76 Minn. 64, 78 N.W. 880, and the California cases cited as "illustrative" in the latter part of the foregoing opinion. In California the public duty doctrine was first applied in a case of injury by the falling of a wooden "awning" over the sidewalk, the court declaring: "Where one has secured a privilege from the public, on condition, he cannot, after availing himself of the privilege, avoid his obligation to perform by leasing the premises," suggesting that the awning was doubtless a great convenience to the premises "and the fact of its being there may have enhanced the rent." (Jessen v. Sweigert.) Thereafter a "coal-hole" case was affirmed on the authority of the JessenCase (Burke v. Schwerdt), and in 1928, without mention of the District Court of Appeals decision in Runyon v. LosAngeles, cited in the foregoing opinion, applied the rule announced in the Jessen Case to a situation wherein a pedestrian was injured because of the disrepair of a plank driveway set into and on the grade of the cement sidewalk, which was in good repair when the building to which it was appurtenant was leased, and the disrepair consisting merely of spikes working loose and projecting above the level of the planks constituting a part of the sidewalk as a result of the tenant's use of the driveway. Under the circumstances, the court held both the landlord and tenant liable, saying: "This driveway having been thus constructed * * * for the * * * convenience of the said defendants * * * the *Page 388 duty was cast by law upon the defendants to exercise reasonable care and diligence in the keeping of said driveway at the point where it was superimposed upon said sidewalk in a proper and safe condition for the passage of pedestrians rightfully using said sidewalk." The duty thus imposed upon the defendant Claasen (the owner) continued during the entire period of the presence and use of said driveway, and she "could not relieve herself of such duty either by leasing the same to her codefendant or by contracting with him * * * for the keeping of said premises and said driveway in a proper state of repair." (Granucci v. Claasen, 204 Cal. 509, 59 A.L.R. 435, 269 P. 437, 438.)
Thus the ancient doctrine in New York becomes the modern doctrine in California, whose laws are more nearly like ours than are those of any of the states in which the contrary doctrine is announced, and, in my opinion, this is the wholesome and proper doctrine for adopting here, when the question is presented for our consideration for the first time in this state.
There can be no logical distinction drawn between a coal-hole, or a grating, or insertion of metal and glass for lighting purposes, occupying but a portion of the width of the sidewalk, and a driveway extending across the sidewalk, but constituting an integral part thereof.
The financially responsible landlord, the owner of the building improved by the construction of any of these appurtenances or easements to his property, who profits by reason of the special privilege accorded him, and not some fly-by-night tenant whose whereabouts may be unknown when action is to be brought, and, if available, may be judgment proof, should respond in damages for an injury suffered because that which enhances the value, the rent, or the rentability, of his building, is suffered to become out of repair. It is to the owner, not the occupant of the building, that the privilege of using a portion of the sidewalk, for the benefit of the building, is accorded, on the implied condition that he will not permit the *Page 389 appurtenance to become a public nuisance by becoming out of repair.
As between themselves, the landlord and tenant may, of course, contract that the latter will make the repairs necessary, but the public cannot be bound by their private contract, and the landlord cannot evade his public duty by private agreement to shift it to another, although such a contract may permit the landlord to recoup his losses from his tenant. Why, then, should the mere fact that the owner has leased the building, in whole or in part, change the rule of liability recognized in all of the decisions in this class of cases? In fact, those decisions which make the statement that it does overlook the public duty of the owner and consider the duty of the landlord and tenant intersese.