Sec. 116. Miscellaneous notes. The provisions of Iowa Code 1873 prescribing the interest taken by the surviving husband and wife in the estate of the deceased spouse, by the use of the words "estates of dower and curtesy are hereby abolished," merely abolished the use of the words " dower" and "curtesy" as descriptive of the enlarged estate. Purcell

v. Lang, 97 Ia. 610 (66 N. W. Rep. 887). See opinion for history of Iowa dower statutes. In Iowa the rule is, that "the widow may take dower, notwithstanding a devise to her in the will, unless there be an express provision in the will to the contrary, or the claim for dower be inconsistent with," and, if allowed, would defeat, some of the provisions of the will. Watson v. Watson, 98 Ia. 132 (67 N. W. Rep. 83). See opinion for application of this rule to particular facts.

DANGEROUS PREMISES.

EPITOME OF CASES.

Sec. 117. Liability of owner when innocent. It is held that the owner of a building is not liable for injury sustained by a tenant on account of a defective gas pipe placed in the building by the tenant of a former owner, it appearing that the present owner had no knowledge of the defect. Metzger v. Schultz, 16 Ind. App. 454 (43 N. E. Rep. 886; 59 Am. St. Rep. 323). The court say: "A nuisance may result from the negligent acts of commission or omission of another. It is also the general rule that the occupier of lands is prima facie responsible for any nuisance maintained thereon, and not the owner. But to this rule there are several welldefined exceptions. The owner is responsible if he creates the nuisance and maintains it. He is responsible if he creates a nuisance, and then demises the premises with the nuisance thereon, although he is out of possession. He is liable if the nuisance was erected on the land by a prior owner or by a stranger, and he knowingly maintains or continues it. He is liable if he demised the premises and covenanted to keep them

in repair, and omits to repair, and thus a nuisance is created. He is liable if he demise the premises to be used as a nuisance, or to be used in any way so that a nuisance will necessarily be created. But a grantee or devisee of lands upon which there is a nuisance at the time the title passes is not responsible for the nuisance until he has notice of its existence, and, in a certain class of cases, until he has been requested to abate the same."

Sec. 118.

Liability of owner to those rightfully using. An owner of property occupied as business rooms by himself and tenants may be held liable for an injury resulting to one using steps, which the owner knows to be defective, leading up to a platform fronting such rooms, although the use at the time of the accident was in connection with a transaction had with a tenant. Archer v. Blalock, 97 Ga. 719 (25 S. E. Rep. 391). While the owner or occupant of premises is not an insurer of them against accidents from their condition, still, so far as he is able to do so by the exercise of ordinary care and vigilance, he is bound to keep them in such a condition that persons who are rightfully using them will not be injured by any insecurity or insufficiency for the purpose to which they are put. If such owner or occupant fails in his duty in these regards, he becomes a wrongdoer, and as such will be liable for any injury which results as a natural consequence from his misconduct, and which might reasonably have been anticipated as likely to occur as a natural and probable result thereof. Lowe v. Salt Lake City, 13 Utah 91 (44 Pac. Rep. 1050). Citing, 2 Shear & R. Neg., § 702; Ryder v. Kinsey, 62 Minn. 85 (64 N. W. 94; 54 Am. St. Rep. 623; 34 L. R. A. 557); Ransier v. Railway Co., 32 Minn. 331 (20 N. W. Rep. 332); Mullen v. St. John, 57 N. Y. 567 (15 Am. Rep. 530); Bennet v. Railroad Co., 102 U. S. 577; Carleton v. Steel Co., 99 Mass. 367; Beck v. Carter, 68 N. Y. 283 (23 Am. Rep. 175); Nickerson v. Tirrell, 127 Mass. 236; Hayward v. Merrill, 94 Ill. 349. Where the owner of a building which has become dangerous by decay engages an independent contractor to tear it down, he will not be liable to a servant of the contractor because of the latter's incompetency to superintend the work of removing the building,

although such incompetency was known to the owner at the time of making the contract. Schip v. Pabst Brewing Co., 64 Minn. 22 (66 N. W. Rep. 3). A lot owner making an excavation thereon near a sidewalk may be held liable for damages resulting to a traveler on the sidewalk on account of such owner's failure to maintain proper railings to guard against such accidents. Cannon v. Lewis, 18 Mont. 402 (45 Pac. Rep. 572).

Sec. 119. Implied invitations upon.

Where one goes

on premises by implied permission, he does so at his own risk, assuming the responsibilities of all risks incident to the place. Where there are two avenues of travel, and the more dangerous one is selected, the party injured cannot recover, if the injury inflicted was due to the risk incident to the route selected. The traveler assumes all risks in such cases. Settoon v. Texas & P. R. Co., 48 La. 807 (19 So. Rep. 759). In a recent case the authorities are collated and it is held that where an owner of premises has reason to apprehend danger from the peculiar situation and condition of certain of their appurtenances and their openness to accident, the question whether he has exercised due care or not, as well as that of the contributory negligence of a. person injured thereon, becomes one for the jury, to be determined upon all the facts and circumstances of the case. Kinchlow v. Midland Elev. Co., 57 Kan. 374 (46 Pac. Rep. 703). It is held that in the absence of any express or implied invitation the owner of dangerous premises is not liable for the injury of a minor trespassing thereon, simply on the ground that there were on the premises those things which attract children, it appearing that such owner used reasonable diligence to prevent children being on the premises. Missouri, K. & T. Ry. Co. v. Edwards, 90 Tex. 65 (36 S. W. Rep. 430).

Sec. 120. Liability of owner to his tenant. It is the duty of the landlord, when he leases the property, to disclose to the tenant the true condition of the same, and to point out and make known to the tenant such defects as he knows to exist in the premises, or which he could know by reasonable diligence; and if he fails to do so, and the tenant or

person relying upon his representations is injured, the landlord is responsible therefor. Sternberg v. Wilcox, 96 Tenn. 163 (33 S. W. Rep. 917; 34 L. R. A. 615). Citing, Coke v. Gutkese, 80 Ky. 598. See also Hines v. Wilcon, 96 Tenn. 148 (33 S. W. Rep. 914; 54 Am. St. Rep. 823; 34 L. R. A. 824); Hines v. Wilcox, 96 Tenn. 328 (34 S. W. Rep. 420). One who lets a building to be occupied by a show to which the public is to be invited, is liable to a patron of the show for injuries occasioned by its defective and unsafe condition. Oxford v. Leathe, 165 Mass. 254 (43 N. E. Rep. 92). Where there is no agreement to repair the demised premises by the landlord, and he is not guilty of any fraud or concealment as to their safe condition, and the defects in the premises are not secret, but obvious, the tenant takes the risk of their safe occupancy; and the landlord is not liable to him or to any person entering under his title or upon the premises by his invitation for injuries sustained by reason of their unsafe condition. Harpel v. Fall, 63 Minn. 520 (65 N. W. Rep. 913). It is held that, in the absence of an express agreement, the owner of a tenement let to a tenant, is not bound to make repairs upon it during the term, and the tenant alone is liable to third persons for damages caused by suffering the premises to become dangerous for want of proper repairs. Szathmary v. Adams, 166 Mass. 145 (44 N. E. Rep. 124). The duty which a landlord owes to his tenants of apartments, access to which is by a common passage, he also owes to visitors of such tenants on lawful occasions. He is thereby required to take reasonable care to have the common halls and stairways reasonably fit for use for the passage of the tenants, but he is under no obligation to furnish means for their safe use. He is therefore under no duty (unless assumed by contract) to furnish light at night, although such light may be necessary for safe use. Gleason v. Boehm, 58 N. J. L. 475 (34 Atl. Rep. 886; 32 L. R. A. 645). In a recent case, the authorities are collated and it is held that under the common law a landlord is not liable for injury to a tenant or to one upon the premises by his invitation for injuries occasioned by the unsafe condition of the premises. The common law does not impose any obligation on the owner of a building to furnish fire escapes. Quaere, As to whether

the violation of an ordinance will render the landlord liable for injuries occasioned by such neglect. Schmalzreid v. White, 97 Tenn. 36 (36 S. W. Rep. 393; 32 L. R. A. 782).

Sec. 121. Fall of buildings-Liability therefor. The owner of real property, in exercising his own tastes and inclinations as to the character of the building he will erect thereon, has no right to build and maintain a structure which, by reason of defects or inherent weakness either in material or construction, is liable to fall and do injury to an adjoining owner or the public. If a building falls by reason of defects in material and workmanship reasonably within the knowledge of the owner thereof, and thereby inflicts injury upon adjoining owners or their property or any person lawfully in its vicinity, the owner is liable for the damages ensuing therefrom. Kitchen v. Carter, 37 Neb. 776 (66 N. W. Rep. 855). A contractor who negligently remodels a building, under a contract with the owner to respond in damages if the work be not properly done, is not liable to a third party who is injured by the fall of the building, on the ground that such third party was a stranger to the contract and the contractor was not, at the time of the injury, under duty to the injured party. Daugherty v. Herzog, 145 Ind. 255 (44 N. E. Rep. 457; 57 Am. St. Rep. 204). The mere fact that a building collapses is not proof of negligent overloading unless there be notice of some defect in the building. McKenna v. Martin & William H. Nixon Paper Co., 176 Pa. St. 306 (35 Atl. Rep. 131). Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers, under penalty of all losses and damages which may result from the neglect of the owner in that respect. The owner of the building cannot free himself from this primary obligation by leaving to an insurance company, which, carrying a policy on the building, had elected, after a fire, to make repairs upon it, to determine the necessity of and extent of repairs. He cannot, as between himself and the public, shift responsibility from himself to the insurance company. The insurance contract may fix and determine the rights and obligations of the parties thereto, but it is not a measure for the rights of the public, nor a criterion