Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-12-15
CHINATOWN NUISANCE.
DECISION OF JUDGE ARMSTRONG UPON
THE SUBJECT.
General Principles Concerning the Liaoh-
ties of Landlords and Tenants
Where Nuisances Exist.

from liability, because of the nature Of the
lease and facts, or the failure of the record
to show the full testimony and real facts, if
thew were different. The decision COW
ers the entire field of similar nuisance cases,
of which Chinatown is ever so prolific, and
will be valuable for reference and guidance in
future, as the health and city authorities will
fully understand what action upon given
state of facts will meet with approval in the
Superior Courts if appeal is taken. The de-
csion is here given in full, as follows:
This is an appeal from the Police Court of the
city of Sacramento. Ii is alleged in the complaint
that the defendant did wIlfully and unlawfully ais
charge, have upon, place and keep upon lots and
6, II and l. Third and Fourth Streets in the city of
Sacramento, noxious privies, cesspools, stagnant
water, etc in violation OF ordinance No. II of the
city. When arraigned the defendant pleaded not
guilty He was tried before a jury, and found
guilty he moved for a new trial, which mO'iOn
was denied. The defendant specified, as grounds of
his notion errors of law occurring the trial. and
that the evidence not sufficient to Justify the
verdict. To determine this appeal the evidence, as
well the rulings of the Court at the trial. must
be considered. 1t appears from the testimony OF
Walter b. Ferra the Health Officer, who was called
as a witness for the prosecution, that the lots de-
scribed in the complaint belonged to one Mesick for
whom the defendant was an agent that the prem
Uses were rented to Cinnamon; that he the de-
PENDANT exercise management and control over the
premises, but what the acts of control or man
agement were does not appear. And j. II. Miller
another witness for the prosecution, testified that
he heard the defendant tell two Of the City Trustees
that they ought to prosecute the Cinnamon IN
possession, and not him, as he vas only an agent.
By other testimony it appeared that the premises
were occupied by aud in the possession OF Chinese
tenants. The defendant testified, in his own behalf,
that he was the agent of Mesick, who owned the
premises that the premises were rented /;
that he had no control over them, and that
he had no authority to eXPend any money
on the premises but that his authority
was limited to letting them and collecting the rents
and paying such bills for repairs Mes,k especially
ordered him to pay. There is no evidence in the
record of the terms, duration, character of the
lease from Mesick to his tenants nor is there any
evidence to the condition of the premises at the
time of the letting but from the eviden there
be no doubt that the privies and cesspoos," at
the time stated in tie complaint, were by the uegli-
gence OF the occupants of the premises, in such
condition as to constitute a nuisance. We have
stated all the evidence claimed to connect the de-
PENDANT with the commission OF the nuisance. At
the trial the counsel for the defendant requested the
Court to instruct the jury in substance that they
could not convict the defendant if they found from
the evidence that the Chinese to whom Mesick
rented the premises caused the nuisance complained
Of, and that the defendant had no control
over them or the possession Of them, and
had no authority to make any improve
ments or do any cleansing thereon, and had
only an agency from Mesick to let the premises
and collect the rents from the tenants; and that
the jury should find from the evidence that the de
PENDANT was special agent to let the premises and
collect the rents only ; then in such case, he had
no authority to exceed such agency by laying out
money, and thereby bind his principal, and in that
event ne would be entitled to acquittal The
Court refused to instruct the jury; but instructed
them in substance that il they found from the evi-
dence that there was kept and maintained upon
the premises, with full knowledge of the defend
ant OF the manner in which said premises used
and after notice thereof, a foul and noXious
pryy and c-sspool;' and that " the defendant
either as owner, agent empoye of the owner, did
wfuly and unlawfully discharge leave upon, place
or keep upon the premises noXious privies cess
pools, they should find the defendant guilty. The
Court erred in refusing the instructions OF the de-
PENDANT, and in giving the instructions which he
gave These instructions ignore the fact that
there was evidence that the defendant the
in the possession entitled to the posses
sion OF the premises; but that the evidence did
show, or tended to show, that the premises be-
ionged to MesiCk and were then in the possession Of
his tenants, and that the defendant was only spe-
cial agent Of Mesck to rent the premises and col
lect the rents, without any authority to incur abil
Ity for repairs The law IS well settled that
agent has only such authority his principal dele
gates to him. blum vs. Robertson, a Cal, l40)
When an agent acts beyond the scope OF his dele
gated authority he is liable to his principal in dam
ages even though he intended the act for the ben
eft Of his principal (Storys Agency, 1927 Then
in this case, even if the landlord had a right to
enter upon the premises to abate the nuisance, the
defendant haQ none, ne would nave been a tres
passer upon the possession Of the tenants. He
could not abate the nuisance without entry and he
cannot be held criminay liable for omit
ting to do that which he had no authority
to do, and would have been q trespasser
if he had done it. For the purposes of this
decision we might stop here but as the sanitary
welfare Of the city is to some extent involved,
will consider the liability Of landlords and their
agents for nuisanees committed premises in pos
session of their tenants. When agents have full
discretionary powers repair and keep premises in
good condition 10 ;he absence Of landlords they
might if personally present, they liable TO the
public for nuisanCes committed to the same extent
as their principals and no further.
As TO the liability Of landlords for nusances on
premises owned by them, these principles may be
considered as settled law
l. II landlord lets premises, not in themselves
nuisance at the time Of the letting, but which may
or may not become q nuisance and 1t is entirely at
the option Of the tenant so TO use them not, and
the landlord receives the same benefit whether they
are or not, he cannot be made responsible for the
acts OF his tenant. This is the rule laid down in
Rich vs. Basterield Com. Bench, sO4, which is
leading case, and has been followed in
many other cases (SlltOustal vs. Banker and
Fisher vs.. Thirkell p Mich, Nas0n vs. Augusta,
IS Ca, 547 Ditchett vs.. 5 d. aad p. NJ K. 4. Co,
o. n. Y, 425; Lonard Slower, 1l5 Mass, Sc
Oakam Holbr5Ok, Il Cush., 299 Rastor vs.
Neyhouse, Z ID. Smith, 21) The reason Of the
rule is this A landlord after he has leased premises
has no more right to enter TO abatc a nuisance
caused by his tenant than stranger and if he did
enter for such purpose he would be liable to his
tenant for damages in action for trespass and it
contrary to tie policy OF the law to require any
one To commit trespass IN order TO prevent Grim
iual effect attaching 10 his failure to do act
Ii a landlord was bound, simply because he owned
the reyersiJu in the estate, 10 abatC nuisance ere
sted by his tenant. Notwithstanding he committed
tresplss IN doing it, or in default Of batting it be
liable 70 q criminal prosecution, he would find his
fate 70 be "a unfortunate between his tenant and
the sovereign people, did the ancient mariner
who escaped from Scyla only to be wrecked upon
Charybdis.
2 But where the nuisance exists at the time OF
leasing, where the premises let 70 be used for
a purpose which in itself would constitute Hui-
sance, and the tenant continues maintains it,
both the landlord and tenant are liable for the Of
Tense Where : nuisance exists on premises the
owner cannot protect bins II against a criminal
prosecution by subsequently leasing them TO a ten
ant 20 whom he surreuders the exclusive possession
and control Of the premises. To permit hin. 10 do
50 would be t. permit offender by his act 70
create a defense for himself This the law does not
tolerate In Roswell vs.. Prior, y Mod K. $50, the
Court said The putting il out OF ones power 10
abate nuisance is rs great tort not to abate IL,
when IL is in his power to do il and it is funda-
mental principle In law nd reason that he who does
the first wrong shall answer for it, There many
authorities 70 the same effect lStephani vs. Brown,
30 Ill. 1873 ; Fish vs.. Dodge, DEMO 81 J Ana in
the case Of Sworlls ". Edgar 50 \. Y 81
the Court said "Where there has been a
nuisance Of continued existence upon demised
premises, the lessor and the lessee may both
be liable for damages resulting thereirom, and We
will add that such must be the law, for the plain
reason that the lessor created and the lessee main
tAiaei or continued the nuisance. (Plummer vs.
Harper, IA Am. Dec. 1888 The Court in the case
Of Cobb Smith, s. Wis. 30, upon this point said
" There can be no doubt under the authorities an
Cient and modern, that an action lies against him
who erccts and against him who continues a NUS.
ance erected by another. The continuance and
every Of that which is, in It's erection and use
nuisance, Is new nuisance, for which the party in
iured has a remedy for damages When the in
iured party is the public, the remedy is by a crmi-
nal prosecution against the one liable for the mus
aucs or against both, where both are liable.
3. Though the tenant during his term crects OF
creates a nuisance for which tine landlord is not LA
bic, yet, II the landlord, with knowledge Of the
nuisance, renew5 the lease, or after the expiration
Of the term, grants another lease TO the same
OF another tenant while the nuisance con
tiuues, he becomes liable for its continuance.
Estate vs.. Williams 80 \. J. L. Reports, 1927 The
landlord had right az the end Of the term 20 enter
and abate the nuisance, and he failed to do it he
must be deemed 10 have adopted and made it his
own. The ground upon which the landlord is exon
Grated IS that he did not create the nuisance, and