¶1dissenting.
¶2In my opinion the verdict and judgment in this case was right, and I cannot concur in the judgment of reversal.
¶3The tenants elected to take the second lease for three years, with full knowledge that the kitchen and passway were over the store-room, just as they remained, till the damage was done. And if the tenant, who occupied the rooms over the. store after the date of the second lease, negligently and wrongfully obstructed the gutter so as to prevent the free passage of the water from the roof, and there was no defect in the roof or gutter, but while it was perfect, it was filled up with trash by the negligence of the tenant above, he, and not the landlord, was liable for any damage that ensued by his negligence, or his wrongful act. In that case the obstruction placed in the gutter by the tenant above, was a nuisance, of which the tenant below had a right to complain, and if injured by it, he had a right to recover damages against the tenant above, for maintaining it to his injury.
¶4The Code, section 2949, defines a nuisance to be, "anything that worketh hurt, inconvenience, or damage to another; and *221the fact that the act done may otherwise be lawful does not keep it from being a nuisance.”
¶5If then the filling up of the gutter, which was perfect in itself, was caused by the negligence, or the wrongful act, of the tenant above, and was a nuisance, and it was not so filled when the tenant below took the second leasfy the decision of this Court in the case of Vason vs. the City Council of Augusta, 38th Ca. R., 542, clearly fixes the liability on the tenant who maintained the nuisance, and not upon the landlord. In that case this Court says, “A landlord who has leased premises to a tenant is not liable for a nuisance maintained upon the premises by the tenant during the lease. If the nuisance existed upon the premises when the lease was made, the landlord is liable. But if the tenant continues the nuisance after he obtains exclusive possession and control, he alone is liable for its continuance. As the landlord under our statute is liable for necessary repairs on the premises, if the nuisance grows out of his neglect to make the repairs, the tenant may make them and set off the reasonable value against the rent due the landlord.”
¶6But it is objected that the case just cited was a criminal proceeding against Nason, the landlord. So it was. But what difference does that make ? What reason applies in favor of the exemption of the landlord in the one case, that does not in the other? If he who maintains a nuisance is subject to indictment and punishment for so doing, and is also subject to an action for damages by a person injured by the nuisance, where is the reason for the distinction between the two cases ? With what propriety can it be contended that Davis was not liable to indictment for this nuisance, if it had resulted in general public injury, because he did not maintain it, and that his tenant was alone subject to punishment because he did maintain it, but that Davis was liable in damages to a particular individul injured by it ? Are we to lay down the rule of law, that the tenant is liable, criminally, because he alone maintains the nuisance, but that the landlord is liable civilly to an action for damages in case an individual is *222injured by tbe nuisance, which is maintained by the wrongful act of the tenant alone ?
¶7It is said the contract and the statute of the State make the landlord liable for all necessary repairs. Grant it. But how does this avail the plaintiffs in error ? What repairs were wanted ? There is no evidence that either the roof or gutter was out of repair in the place where the injury occurred. They were perfect, and the damage resulted from the obstruction of the gutter by. the wrongful act of the tenant above. If there had been no obstruction in the gutter, there would have been no damage.
¶8But admit that the cleaning out of the gutter was understood by the parties, to be included in the necessary repairs of the roof and the verdict was still right. The evidence was in conflict; but there was positive testimony before the jury, that the plaintiffs in error called the attention of Davis, the landlord, to the condition of the roof, stating that it needed repairs, and that he told them to have the repairs made and charge to him, and they agreed to do it.
¶9Now if the cleaning out of the gutter was part of the repairs, and the tenants agreed to have them made, at the expense of the landlord, and they neglected it, he is not liable to them for the damage resulting from their negligence. And as the jury, whose province it was to decide on the credibility and weight of the evidence, have found this issue for the landlord, and the Judge who tried the case is satisfied with the finding, we should not, in my opinion, disturb the verdict.
¶10If this damage was the result of a nuisance, the tenant who maintained the nuisance, and not the landlord, was liable. But if it resulted from neglect to make the prqper repairs, the plaintiffs in error, who had agreed to have them made, at the expense of the landlord, and had neglected to do so, have no right to recover from the landlord, damages which resulted from their own neglect. In either view of this question, I think the judgment of the Court below ought to be affirmed.