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fective spouting. Kastor v. Newhouse (1855) 4 E. D. Smith (N. Y.) 20. But where adjoining land is injured by the erection of a building so close to the boundary line as to cast the water from the building upon the land of the owner of the building, but so near the line that it is gathered at one point and flows upon the adjoining land, to the injury thereof, the owner is liable, notwithstanding that he has leased the premises to another. Bellows v. Sackett (1853) 15 Barb. (N. Y.) 96. The landlord is not liable for a nuisance originating and kept up during the tenant's occupancy of the premises, where it is due to the tenant's failure to keep in repair water pipes, whereby the water escapes onto adjoining premises. Harris v. Cohen (1883) 50 Mich. 324, 15 N. W. 493. Nor is the landlord liable for injury to adjoining premises by flooding thereof from defective plumbing, where there is no evidence from which it can be inferred that the premises were in a defective condition when he leased the same. Strauss v. Hamersley (1891) 37 N. Y. S. R. 749, 13 N. Y. Supp. 816. Deutsch v. Abeles (1884) 15 Mo. App. 398, also, denies the landlord's liability for injury to adjoining premises by water escaping from his premises, due to the failure of his tenant to keep in repair water pipes. But it has been held that where the property of a third person on adjoining premises was injured by water escaping from leased premises, due to the defective condition of a water pipe, the landlord is liable, where the danger became active merely by the tenant's ordinary use of the premises. Beck v. Hanline Bros. (1913) 122 Md. 68, 89 Atl. 377.

d. Damage by fire.

The erection by a tenant of a barn upon the leased premises so close to buildings upon adjoining premises that the latter were destroyed by fire, together with the tenant's barn, the fire starting in the latter barn, did not render the landlord liable. Herrst v. University of Michigan (1925) 231 Mich. 396, 204 N. W. 119.

The lessor of land for development

of oil and gas wells is not liable for injuries to an adjoining property owner by the act of the lessee, after having developed an oil well, in building large tanks for the storage of oil, where he built them so negligently that one of them fell and the oil escaped to adjoining premises, where it came into contact with a fire, which ignited it and caused buildings on the adjoining premises to burn. Langabaugh v. Anderson (1903) 68 Ohio St. 131, 62 L.R.A. 948, 67 N. E. 286, 14 Am. Neg. Rep. 170. The court expressed the view that "the storage of crude oil is not of itself a nuisance to adjacent or adjoining premises; and if the lessor even knew that oil would be produced by drilling, and stored on the leased premises, she would not be contemplating the creation or maintenance of a nuisance."

In Murray v. McCormick (1921) Mo. App. —, 232 S. W. 733, one standing in the position of landlord was held not liable for the action of the tenant in threshing wheat close to buildings upon adjoining property, and having stationed near such buildings a threshing engine which, in operation, set the plaintiff's buildings on fire.

The lessor of a meadow in an adjoining tract from which the wood and timber had been taken off is not liable for injury to the property of an adjoining owner, due to the act of the tenant in setting fire to the cleared tract, which spread to the land of his neighbor, although the consideration of the lease was the agreement of the tenant to clear this tract. Todd v. Collins (1822) 6 N. J. L. 127.

In Helwig v. Jordan (1876) 53 Ind. 21, 21 Am. Rep. 189, the owner of premises upon which there was a dry kiln, who leased the premises knowing that it was the intention of the lessee to use the kiln for the purpose of drying lumber, was held liable to an adjoining owner for damages due to the destruction of a house upon the adjoining land, which was burned by fire communicated from the kiln while it was being used by the lessee for the purpose for which it was intended. The court said that it appeared that

the defendant "knew his lessees intended to continue the said business [of drying lumber], and that such kiln was necessary to the successful operation thereof. He received rent

the entire premises, which included the kiln, and he is to be presumed to have known or to have reason to believe that his lessees would, under his lease, continue to use the same in the same manner in which it had been used, and for the purpose for which it was constructed; and it is to be further presumed that he knew the danger which would result to the property of the [adjoining owner] by such use."

e. Miscellaneous.

Under the statute of Massachusetts relative to houses used for purposes of prostitution, the owner of premises is liable for permitting such a nuisance, although they are leased to another. The responsibility of the owner is not based upon his knowledge of what is going on, but upon the fact that the premises are used for a purpose forbidden by the statute. Chase v. Revere House (1919) 232 Mass. 88, 122 N. E. 162.

It has been held that where the location of a licensed saloon is such that the business cannot be carried on without the creation of a nuisance, to the damage of the community and particularly to adjoining property, the owner is liable for the injury to the adjoining property by depreciation in its selling and rental value due to the operation of the saloon business on the leased premises, where he leases the property for saloon purposes, knowing the facts, and receives the rent therefor. Haggart v. Stehlin (1893) 137 Ind. 43, 22 L.R.A. 577, 35 N. E. 997.

It has been held that the owner of property which was used for the purpose of retailing intoxicating liquors at the time he acquired it, and which was located in a commercial section of the city, which was a proper place for such business, is not liable to a third person injured by the act of a tenant in so operating a saloon busi

ness thereon as to amount to a nuisance, it not appearing that the owner let the premises for the purpose of conducting thereon a disorderly saloon. Joseph Schlitz Brewing Co. v. Shiel (1909) 45 Ind. App. 623, 88 N. E. 957. It is pointed out that the nuisance existed, not in the character of the business, but in the manner in which the same was conducted, and the court said that unless the evidence was such as to justify the inference that the landlord knew of, and was consenting to, the wrongful conduct of his tenant, he could not be held liable for his acts.

Where the landlord had covenanted to repair the premises, he is liable to an adjoining owner for injury to his property by the fall of an old shed on the leased premises while they were in the possession of the tenant. Benson v. Suarez (1864) 43 Barb. (N. Y.) 408.

The owner of premises is liable for injuries to adjoining property where he leases the premises to a tenant with the buildings in a ruinous and dangerous condition, and permits them so to remain until by reason of such condition they fall upon and injure a structure upon adjoining land. Todd v. Flight (1860) 9 C. B. N. S. 377, 142 Eng. Reprint, 148, 15 Eng. Rul. Cas. 329.

A steam bathing establishment operated in such a manner as to constitute a nuisance was held to render a grantee of the land with knowledge of the nuisance liable to an adjoining property owner, notwithstanding the premises, at the time he acquired them, were in the possession of a tenant. Pierce v. German Sav. & L. Soc. (1887) 72 Cal. 180, 1 Am. St. Rep. 45, 13 Pac. 478.

The landlord is liable to an adjoining property owner for injuries due to the operation by the tenant of a range set up by the landlord in his house, so close to the partition wall that its operation necessarily caused damage to the adjoining owner. Grady v. Wolsner (1871) 46 Ala. 381, 7 Am. Rep. 593.

The owner of land who leases it for use as a blacksmith shop is not liable

to an adjoining owner for injury to the latter's property by the use of the premises for the purpose for which it was leased, even though the business was so operated as to amount to a nuisance. Morris v. Roberson (1910) 137 Ky. 841, 136 Am. St. Rep. 323, 127 S. W. 481.

Without disclosing the character of the injury, it has been held that a landlord is not liable for injuries due to the defective condition of fences upon the leased premises, which is ascribable to the failure of the tenant to keep the same in repair as he was bound to do. Cheetham v. Hampson (1791) 4 T. R. 318, 100 Eng. Reprint, 1041.

A landlord cannot be held liable for injury to an animal upon adjoining premises, due to the failure of a tenant to keep the line fence in repair, whereby the animal strayed upon a

railroad track and was killed. Blood v. Spaulding (1885) 57 Vt. 422.

The liability of the landlord is assumed in Ackerman v. Ellis (1911) 81 N. J. L. 1, 79 Atl. 883, holding a tenant in possession of land upon which trees grow so close along the boundary line as to overhang adjoining premises and constitute a nuisance not responsible for damages thereby resulting, merely because he maintains the land in the condition in which it came to him.

The owner of land is liable for injury to adjoining property by an erection which interferes with ancient lights on the adjoining premises, although the owner has leased the premises subsequently to the erection. Rosewell v. Prior (1702) 2 Salk. 460, 91 Eng. Reprint, 397. In this case the person treated as owner was in fact a tenant for years. A. G. S.

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(143 Wash. 508, 255 Pac. 664.)

Insurance, § 413- mutual extent of liability.

1. Under the provisions of a mutual fire insurance contract that each subscriber agrees that there is assumed by him a sum which is the same proportion of the aggregate liability under the contract as such subscriber's premium deposit bears to the aggregate of all subscribers' premium deposits under all policies in effect at the time of the loss, a subscriber is liable to aid in the payment of all liabilities incurred while he is an insured member, regardless of when the policies covering such losses may have been issued.

[See annotation on this question beginning on page 343.] Parties, § 19 enforcement of insurance policy action by general agent. 2. The general agent of a mutual insurance company to whom application for membership in the association is made is not the proper party to en

force the liability of a subscriber on his contract, rather than the insurance company, where the application was made to him merely as agent, and the policy was in fact issued by the insurance company and signed by the agent as attorney in fact.

APPEAL by defendant from a judgment of the Superior Court for Spokane County (Witt, J.) in favor of plaintiff in an action brought to recover

(143 Wash. 508, 255 Pac. 664.)

the amount alleged to be due from defendant for his share of fire loss liability incurred in favor of, and paid to, other members of the plaintiff association. Affirmed.

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Parker, J., delivered the opinion of the court:

The plaintiff, Lumbermen's Indemnity Exchange, a domestic mutual fire insurance association, duly incorporated under the laws of this state, seeks recovery of an amount claimed to be due it from the defendant, Herrick, as one of its members, to aid in its reimbursement for fire loss liabilities incurred in favor of and paid to certain of its other members while he was such member of the association. A trial of the action on the merits in the superior court for Spokane county, sitting without a jury, resulted in findings and judgment awarding recovery to the plaintiff, from which the defendant has appealed to this court.

The association is incorporated and exercises its corporate powers under chapter 97 of the Laws of 1903, which, in so far as we need here notice its language, reads as follows:

"Section 1. Any ten or more persons, residents of this state, who may desire to form a company or association for the purpose of mutual protection of the members thereof against loss by fire, shall make and subscribe written articles of incorporation in triplicate, and acknowledge the same before any officer authorized to take the acknowledgments of deeds.

Upon filing of said articles with the insurance commissioner of this state, together with a statement certified under the oath of its president and secretary showing the amount of insurance and the number of risks pledged upon its books, and that it has otherwise complied with the provisions of this statute, then the insurance commissioner shall

of the court.


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grant such company or association a certificate of authority to do busiThe trustees of any such company shall adopt such bylaws as they may deem proper for the government of its officers and the conduct of its affairs, and said by-laws shall also provide for the liability of its members for the payment of losses and expenses: Provided, that such liability shall not be less than a sum equal to one annual premium nor more than a sum equal to five times the amount of one annual premium, and such liability when so determined by the bylaws shall be the entire liability of each member."

"Sec. 5. Any member of such company or association may withdraw and be released from all liability as a member, by surrendering his policy of insurance in such company or association, and by giving five days' notice in writing of his intention to withdraw, and paying all dues and assessments due or pending at the time of his withdrawal; but the liability of members for their pro rata share of the losses of such company or association shall not cease until the foregoing conditions have been complied with."

"Sec. 10. All assessments levied shall be at the rate of fifteen per cent. of the amount of the annual premium charged by stock insurance companies, as set forth in rate. book No. 4 of the issue of 1900, or the special rate books used by said stock companies: Provided, any association or company operating under the provisions of this act may, in the discretion of its trustees, accept cash premiums, for the term of the policy in lieu of assessments levied upon its members."

The De Veuve-Burns Underwrit

ing Company, a corporation, was at all times in question the general agent of the association with power to receive members into the associa

tion and to issue its policies, being so authorized by power of attorney. On January 28, 1924, Herrick, seeking to become a member of the association, made application therefor to the De Veuve-Burns Underwriting Company, in that behalf, signing a paper in form as signed by all other applicants for membership. That paper is lengthy, and in its recitals contains much which we regard of no consequence in our present inquiry. It is a somewhat involved document. However, its purpose is plainly evidenced by its heading and opening paragraph, reading as follows:

"Lumbermen's Indemnity


"Subscriber's Appointment. "The undersigned, as a subscriber at Lumbermen's Indemnity Exchange, of Seattle, Wash., with a view of escaping the burden of excessive insurance rates and of ef

fecting adequate protection against loss by fire or other casualty, desires, with other subscribers, to ob

tain such indemnity by the exchange of private contracts."

This is followed by language authorizing the De Veuve-Burns Underwriting Company to effect insurance in the association for Herrick; it being treated and referred to as a power of attorney given by Herrick to the De Veuve-Burns Underwriting Company in that behalf. Accordingly, on February 18, 1924, the De Veuve-Burns Underwriting Company, as attorney in fact for the association, issued to Herrick three insurance policies, insuring him against loss by fire damage to his sawmill plant and lumber, for the period of one year expiring February 18, 1925. One of these policies was for $40,000, reciting "the deposit of $956 premium;" another was for $20,000, reciting "the deposit of $350 premium;" and another was for $10,000, reciting "the deposit of $175 premium." These recitals manifestly mean that these deposits were to be treated as a

credit to Herrick as an insurer, he being an insurer as well as an insured, as were all other members. These policies issued to Herrick, as all other policies of the association, contain the following stipulation: "Each subscriber and underwriter, including the assured hereunder, agrees that there is assumed by such subscriber or underwriter, as if a separate policy was issued therefor, a sum which is the same proportion of the aggregate liability hereunder as each subscriber's premium deposit bears to the aggregate of all the subscribers' premium deposits under all policies in effect at the time of any loss."

On October 9, 1924, in compliance with 5 of the law above quoted, Herrick gave to the association due notice of his intention to withdraw as a member, and requested cancellation of his three policies as of that date. Thereupon the three policies were surrendered and accordthereafter commenced by the assoingly canceled. This action was ciation seeking recovery from Herrick, claiming him to be liable to the

association, in a sum in excess of his premium deposits above noticed, for fire loss liabilities incurred and paid by the association to other members while he was a member; that is, while his policies were in force. The association was by the judgment awarded recovery against Herrick substantially as prayed for.

The principal contention here made in behalf of Herrick, as we understand his counsel, is, in substance, that he is not liable as one of the mutual insurers for losses incurred under policies of insurance which were issued prior to his becoming a member of the association. This contention seems to be rested upon certain claimed enumerated powers and restrictions in the socalled power of attorney, by which Herrick applied to the De VeuveBurns Underwriting Company for membership and insurance in the association. Counsel for Herrick did not point out at all to our satisfaction any language in this so

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