#### Alexander Irvin, plaintiff and respondent, *vs.*Jonathan O. Fowler, impleaded, &c. defendant and appellant.

1. The permanent maintenance of an aperture in the sidewalk o|. a public street, by the owners and occupants of an adjoining building, with whose interior it communicates by an underground passage; to he used by them occasionally and reasonably for the introduction of articles through the same into such building; does not necessarily become a nuisance, unless left in such a condition as to he dangerous to travelers on the highway, where the right to such maintenance and use has been granted by the owner of the laud used as a highway as an easement therein, in 'such manner as to be paramount to the easement of the public therein to use it as a highway. *Per*Robertson, Ch. J.

2. The dedication or use of land as a highway is not necessarily so inconsistent with-the existence of such an easement therein as to extinguish it; and the owner of such land, whether the state or its representatives or a private individual, may grant such an easement to be enjoyed by a private person to he used by him, .so as not to interfere with the general use of such land as a highway.

3. The ordinary rules of evidence of the -existence of a grant of an incorporeal hereditament are applicable to such an easement, and it may he established by prescription and presumptive evidence, such as an uninterrupted enjoyment for twenty years.

4. The ownership of such an easement takes away from such aperture the character of a nuisance, so far as it makes its author or maintainor an absolute guarantor for the safety of all travelers on the highway, and leaves him simply hound to use proper precaution to protect them from injury by it.

5. In the absence, however, of proof, of the time or author of the construction of such an existing aperture in a sidewalk, or of the persons by whom, the manner in which, and the period during which it had been used, the owners of the adjoining building, if liable at all, *ave prima fade*liable as absolute insurers of travelers from injury by such aperture, and are not exempt from liability by the exercise of any degree of care, where such injury has occurred.

6. Every one who maintains or uses, or receives profits from the use of a dangerous construction on, or excavation in a public highway, whether such main*483tenance and use be legal or not, is bound to use the utmost vigilance and care to protect those traveling on such highway against injury from it.

7. If any one either constructs or uses, or receives profit from the use of such an excavation or construction, he must, at his peril, keep it in such a condition as that the safety of travelers shall not be impaired by its being there. The sidewalk must be just as safe as if no such opening were there.

8. In a joint action against the owner of premises and his tenants, to recover for injuries sustained by the plaintiff by falling into a coal hole underneath the sidewalk in front of the premises, by reason of the cover being left unfastened, proof that the owner received rent for the building, and that the tenants *could*have used such coal hole, without any thing to show that they ever *had*used it, it seems is sufficient to make the landlord, as well as the tenants, liable. *Ter*Robeetsox, Oh. J.

(Before Robeetsox, Oh. J., and Monem. and,MoOuxx, JJ.)

Heard December 10, 1867;

decided March —, 1868.

This was an appeal by the defendant Fowler from a judgment rendered against all the defendants. The action was brought to recover damages sustained by the plaintiff by falling into a coal hole in front of a house on Broadway, in New York, in October, 1863, against the defendants, the Woods, as tenants, and the defendant Fowler as landlord of the premises. On a former trial, the plaintiff’s complaint was dismissed when his evidence was closed. The dismissal was set aside at general term, and a new trial ordered. *(See 4 Bob.*138.) ' The exceptions on the second trial arise upon the evidence given or offered by the defendants, and the rulings of the court at the close of the whole case. The defendant Fowler put in evidence an ordinance of the corporation of the city of New York, authorizing permission to be given to construct openings in the sidewalk; showed that the coal slide in question had been constructed a number of years; and gave evidence, tending to show that it had been constructed under a permit from the proper authorities, before he became landlord; offered to prove that it was properly constructed; and to give evidence that the accident happened by reason of the cover having been left unfastened after being used to put in coal. This defense was overruled, and the defendants excepted. At the close of the testimony, the counsel for the defendant Fowler *484requested, the court to instruct the jury that there was sufficient evidence to justify them in finding that this coal hole and cover were constructed by virtue of a permit from the proper authorities, and if so, that the defendant Fowler, (the landlord,) was not liable without proof of negligence. The court refused so to- instruct the jury, and the counsel for both defendants excepted. The counsel for the defendant Fowler also requested the court to direct the jury to find a verdict for the defendant Fowler. • The court refused so to instruct the jury, and the counsel for said defendant excepted. The counsel for the defendant Fowler also requested that the court allow the jury to find a separate verdict in reference to the amount or proportion of damages for the plaintiff’s injury; which the jury thought the landlord and the tenants oyght severally and respectively to pay. • The court refused such request, and the counsel for both defendants excepted. The counsel for the defendants "Wood moved to dismiss the complaint, on the grounds already stated, and the other additional ground, that it did not appear, that the coal hole was a part of the premises occupied by the Messrs. Wood. The Motion was denied, and the counsel for the defendants Wood excepted. The counsel for the defendants Wood then requested the court to instruct the jury that they were at liberty, if in their judgment the evidence would warrant it, to find a verdict against the landlord and in favor of the tenant. The court refused so to instruct the jury, and the counsel for said defendants excepted. The counsel for the defendant Fowler then asked the court to direct the jury to find a verdict for the defendant Fowler, upon the additional ground that the sidewalk belonged to the mayor, commonalty and aider-men of the city of Eew York, in fee, and that there was no evidence that it was ever let by Mr. Fowl.er as an appurtenant to the premises in question. The counsel for the defendants, the Woods, made the same request on behalf of those defendants. The court refused such request, and the counsel for the defendants excepted.

*485
      *S. P. Nash,*for the appellants, defendants.

I. Long existence of such a privilege in a public highway is of itself evidence of license by the proper authorities. This slide had existed over twenty years. This, with the further evidence that a department of the city government is expressly authorized to grant licenses for such privileges; that they exist in all the streets and in front of nearly every house in the city, was sufficient, with the proof of the probable loss of the record of the license in question, to justify the jury in finding that it had been originally constructed by authority of law. *(Chicago City*v. *Robbins,*2 *Black,*418, 423. *Creed*v. *Hartmann,*29 *N Y. Rep.*591, 597.) If so, it was not a nuisance, unless negligently built or maintained. *(Leigh*v. *Westervelt,*2 Duer,. 618, 621. *Bellinger*v. *N. Y. Central R. R. Co.,*23 *N. Y. Rep.*42. *Selden v. Del. and Hud. Canal Co.,*29 *id.*634, 642.)

II. If,"in addition to this, the accident happened from the negligence of some third person in leaving the hole uncovered, and without any negligence on the part of the defendant Fowler, it is difficult to see how the-judgment against him can be sustained.,

TTT. The other points involved, not being open for discussion in this, court, are not particularly stated; they appear in the exceptions.

*Gf-eo. C. Barrett,*for the respondent, plaintiff.

I. The defendants insisted that the damages might be severed, and that the jury might mulct the respective defendants, in different amounts, according to the degree of culpability attaching to each. The learned justice held otherwise, and the defendants excepted. The ruling was clearly right, and it has been so settled by the court of last resort. *(Beal*v. *Finch,*1 *Kern.*128.)

1. The rule is, that where several persons are jointly charged in an action of tort, and they either plead jointly or sever in their pleas, or one suffer judgment to go by default, if the jury assess several damages, the verdict is *486Wrong, and the judgment will he erroneous. *(Sedgwick on (Damages, p.*623, *3d rev. ed. marg. p.*584. *Salmon*v. *Smith,*1 *Saund.*207, *n.*2. *Hill*v. *Goodchild, 5 Burr,*2790. *Mitchell*v. *Milbank,*6 *T. R.*199. *Brown*v. *Allen,*4 Esp. 158. *Bohun*v. *Taylor,*6 *Cowen,*313. *Wakely*v. Hart, 6 Bin. 316, 319. *Bostwick*v. *Lewis,*1 Day, 34. *Crawford*v. *Morris,*5 *Grattan,*90. *Halsey*v. *Woodruff,*9 *Peck,*555.) The verdict should be for the amount which the most culpable ought to pay. (Aame cases.)

2. In some cases of joint trespass where the jury have improperly severed the damages, the plaintiff has been permitted to enter a joint judgment against all, assuming the largest sum assessed against any one as the damages against all.) *Fuller*v. *Chamberlain,*11 *Metc.*503. *Bell*v. *Morrison, 27 Misc.*68. *Hair*v. *Little,*28 *Ala. Rep.*236.) The doctrine that the damages are indivisibles was recognized in *Bulkley*v. *Smith,*(2 *Duer,*261.) It was only doubted whether, in case the jury should perversely sever, the court would permit a judgment against all for the largest sum assessed. *(And see*1 *Duer,*643.)

2. These rulings were in cases of torts, where exemplary damages were allowable. *A fortiori,*in a case like the present, where only *compensatory*damages are sought. The plaintiff here did not seek to punish the defendants. He merely sought to be compensated for his loss and sufferings, and he -could recover neither more nor less than *compensation.*

II. The only other new exception was that respecting the permit claimed to have been obtained from the proper authorities to construct the coal hole; the ruling upon which was perfectly correct, for several reasons:

1. It made no difference, so far as the defendants’ liability was concerned, whether the coal hole was originally constructed under a permit or not.

2. The liability under the decision of the general term was put upon the broad ground that the coal hole was a *487nuisance; quite irrespective of the question of the authority for its original construction.

3,. But were it otherwise, there was not a particle of evidence that any such permit had ever been granted.

*(a.)*The original permit was not produced, nor was any evidence given respecting it. The only evidence on the subject at all was that of Fowler, who went to the street commissioner’s office, and was there told by *some one*(who, for ought that appears, was not even connected with the office,) that the books had been taken away by Mr. Devlin or Mr. Conover and had not been returned. This was mere hearsay, and would have- been wholly insufficient, even if that *some one*had been produced and testified to the same facts.

(5.) Certainly, even if it were established that the books had been lost, or could not be found or produced, that does not establish the fact that the license was given. It rather tends to show the difficulty of proving the alleged fact.

(<?.) The license was not, therefore, proved, nor would it have been in the least material, even if fully established.

By the Court, Robertson, Ch. J.

The principles, on which the learned justice before whom the issues of fact in this action were tried, held all the defendants to be liable, are best given in his own words, as used in his charge to the jury, which were as follows :

> “ The court places the ground of the liability in this case upon the duty which devolves upon any one, who uses.or receives profits from a dangerous construction or excavation placed in a public highway, (over which every one has aright to travel,) to protect the public from accident; and it says, that if any one either constructs or uses, or receives profit from the use of, such an excavation or construction (which is called in law a nuisance) he must, at his peril, keep it in such a position as that the safety of the traveler shall not be impaired by the fact of its being there. The sidewalk must be just as safe as if the thing had not been there. It is at *488their peril to keep it so, and it is upon that ground that this court has held these defendants are liable; the tenants as using it in putting in coal; the landlord, as having received rent for the use of it; and it is because the action is based and sustained on that ground, that all evidence of carelessness on the one side, or of good or bad construction, so far as the landlord is concerned, on the other, has been excluded, their liability resting on the above broad ground.”

I am as unable now, as I was when this case was formerly before this court, at general term* (4 *Rob.*138,) to-perceive how the defendant Fowler could be charged with receiving rent for the use of the aperture in the street, which communicated with the building, of the lease of which he was assignee, when there was neither evidence to show that it was an appurtenance of such building, nor did such lease which was under seal, demise it as a separate easement or right. There was, it is true, an attempt on the part of the *defendant*Fowler to prove that it was such an appurtenance, by showing that it was constructed under a permit from the city corporation, but the evidence was excluded on the objection of the *plaintiff.*So that the evidence against both the landlord and tenant consisted simply of proof that the former received rent for the building, in front of which such aperture was situated, and that the tenants of such building could have-used it, without any proof they ever had used it. The defendant Fowler himself, never demised any thing to such tenants ; he acquired the relation of landlord solely by being the assignee of a longer term, from those under whom such tenants held. But such proof having been held sufficient to make the landlord (Fowler) as well as the tenants liable, when this case was formerly before the general term, I am bound by that decision to-hold the same proof sufficient on the present occasion.

Evidence sufficient to have established that such an aperture was *an appurtenance*to the adjoining land, and the use of the buildings on it, would have also established a legal 3’ight to the use of it. The legal right to the .occasional *489and reasonable use of such an aperture on the highway is not a legal impossibility. The state or other owner of the soil of the highway could grant it, or it might have existed before the land was appropriated for a highway and have been reserved by such appropriation. It is not necessarily a nuisance because it exists in the soil over which the highway passes; otherwise excavations spanned by bridges, or the cavities of culverts or drains, would be equally nuisances. It becomes a technical *nuisance*only when it is so insufficiently covered and guarded, that a traveler in the exercise of the public easement of passing over the highway is injured by it by falling into it or otherwise. *(Leigh*v. *Westervelt,*2 Duer, 618, 622. *Bellinger*v. *N. Y. Central R. R. Co.,*23 *N. Y. Rep.*42. *Selden*v. *Del. and Hudson, Canal Co.,*29 *id.*634, 642.) While it has a sufficient covering and protection over it to prevent such accidents, its creation and existence becomes and remains simply a trespass on the soil, over which the highway passes, for which its maker or sustainer is liable to the owner. There is therefore no restriction on the right of the state or those who represent it, or its grantee, to grant such an easement to be, enjoyed by a private individual, provided the enjoyment by the public of the use of the highway is also so reasonably protected as to take away the character of a nuisance from such easement. Being a subject of grant, it is entitled to the application of the ordinary rules of evidence to establish the fact of such grant. And uninterrupted enjoyment for twenty years is presumptive evidence of it. (2 *Starkie on Ev.*911, *3d ed. Greenl. Ev.*20, *art.*17. *Best on Presump. Ev.*103-111, *and eases cited.)*The ownership of such an ' easement, would take away from the maker of such an aperture the character of a trespasser, rendering him liable absolutely for the safety of all travelers, and render him the proprietor of a right, which would merely impose upon him the duty of using due diligence to protect them. In this case, however, there was *no evidence when or by whom such aperture ivas constructed, or by whom, in what manner or*
      *490
      *how long it had leen used,*before the year 1859. In other words, there was nothing to establish the duration of the grant, or its extent. If liable at all, therefore, the defendants were liable as insurers against injury, and not merely as. being bound to use ordinary care in the covering, construction and use of such aperture.

There was no proof of the existence of the grant of any permit by the city authorities. Proof of its loss was therefore inadmissible. All the exceptions to the exclusion of evidence, or refusals to charge, depended upon the same principle in regard to the defendants’ liability as absolute insurers, and were therefore, under the former decision of this court, properly excluded.

There could not be a severance of the defendants in regard to damages; they were sued and made liable as joint wrongdoers, and the amount of contribution to the injury, or malice by any one, was immaterial. *(Sedgw. on Dam.*584, *3d rev. ed. p.*623.)

There being no error, the judgment should be affirmed, with- costs.