Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
On a motion for summary judgment, the plaintiffs' complaint against the Hackensack Brick Co. was dismissed for the reason that it failed to set forth a cause of action upon which relief could be granted. The plaintiffs appeal.
The defendant Hackensack Brick Co. had leased two tracts of land under written agreements made in December 1949 and October 1951 to the defendant M. Iommetti & Sons, for use as a garbage dump. On February 27, 1953 the building, lumber and other materials of the plaintiff which occupied premises adjoining the dump area were destroyed by a fire which spread from the dump. The plaintiffs seek damages. The Hackensack Brick Co. denies that the damage was the result of any act attributable to it, but rather of the negligence of its tenant.
The Hackensack Brick Co. moved for summary judgment on the ground that there was no genuine issue as to any material fact. The trial court held "the use for which the premises were leased does not necessarily create or result in the creation of a nuisance. The complaint does not allege that the Hackensack Brick Co. itself is guilty of any negligence in the operation of the dump. It, therefore, follows that, under the allegations of the complaint, the Hackensack Brick Co. is not responsible for the injury to the property of the plaintiffs."
The plaintiffs were granted leave to file an amended complaint, which recites that on February 27, 1953, the day of the damage, the Hackensack Brick Co. was the owner and lessor of premises "to be used and occupied by M. Iommetti & Sons for the purpose of disposal and dumping of garbage, ashes and refuse, having full knowledge at the time that said usage was likely to become a nuisance to the surrounding residential and business community." Further, that the lessor had the right of re-entry should the tenant by failure
to supervise the condition of the premises create and maintain a nuisance. The amended complaint further alleges that the tenant operated the dump in a dangerous and negligent manner, thereby creating and maintaining a nuisance, and that the lessor, Hackensack Brick Co., having full knowledge of such nuisance, failed in its duty to re-enter the premises or "to take any action to abate, correct, remedy or prohibit the existing dangerous and negligent operation of" the dump.
On the basis of the amended complaint, the trial court reconsidered and granted the defendant's motion for summary judgment.
The appellants now argue that under certain conditions a landlord may be liable for a nuisance created on leased premises, and that summary judgment should not be granted where there is a single material factual issue. They further argue that since the premises were leased "for the purpose of disposal and dumping of garbage, ashes and refuse, having full knowledge at that time that said usage was likely to become a nuisance to the surrounding residential and business community," the landlord is liable for the result, notwithstanding that no nuisance existed at the commencement of the lease.
Mr. Justice Heher stated the general rule in Wasilewski v. McGuire Art Shop , 117 N.J.L. 264 (Sup. Ct. 1936):
"* * * the landlord's liability to strangers is confined to the injurious consequences of that which in its very essence and nature is a nuisance at the time of the letting, and does not extend to that which is merely capable of being thereafter rendered a nuisance by the tenant. * * * where, under ordinary circumstances, a nuisance necessarily ensues from the plainly contemplated manner of use of the thing demised, and is not to be avoided by the tenant's exercise of reasonable care, the landlord is liable for the resulting injury; * * *. As was said in Fish v. Dodge, supra [4 Denio 311] when the letting is for a lawful purpose which may result in a nuisance only under special circumstances, the landowner 'cannot be justly charged with the wrong which was actually committed by others, * * * unless he knew, or had reason to believe, that he was letting the property for a use which must prove injurious to the plaintiff.'"
Cf. Ingwersen v. Rankin , 47 N.J.L. 18 (Sup. Ct. 1885); Annotation 53 A.L.R. 327; 2 Stevenson, Law of Negligence in the Atlantic States , §§ 499, ...