dissent from that part of the foregoing opinion which holds the defendants legally responsible for the erection of the chimney by Jordan and Jordan, for these reasons.
In their view the defendants are not shown to have had to do with the changes near the plaintiffs’ premises, except as appears by their written contracts in regard to the property. They arranged with Bradford and Thomas so as to let Jordan and Jordan into possession much sooner than could have been done without the arrangement. They made a lease to Jordan and Jordan for eight years and, seven months, and in the lease they gave permission to make the changes; but they expressly stated in the lease that “ the lessees take subject to the lease to Case, Dudley, and Battelle,” the plaintiffs. Without such permission Jordan and Jordan would have had no right as against the defendants to make the changes. With it they had and have a right as against the defendants. It cannot fairly be construed as authorizing the Jordans to create a nuisance, or to do anything that would interfere with the plaintiffs’ rights as lessees. It amounted to a declaration on the part of the defendants that they gave no right as against the plaintiffs, and that Jordan and Jordan might make the changes after the expiration of the plaintiffs’ lease, which then had less than eight months to run, but not before, unless they did it with the consent of the plaintiffs, or in such a way as not to affect the plaintiffs’ legal rights.
It seems to the dissenting justices that with this construction full effect is given to the language of the contracts, in accordance with the intention of the parties, and that it is unjust to the defendants to charge them as having authorized the work to be done against the rights of the plaintiffs, and to make them pay damages for which, on the plaintiffs’ theory, they can have no recovery against the real wrongdoers.