Walton v. Broadhead, 54 Utah 320. by her upon the ranch after her marriage with the defendant's intestate, but none of the witnesses attempted to say that the defendant's intestate ever possessed or had use of the property in any way for his benefit. Under the testimony adduced at the trial what property, if any, plaintiff's intestate had when she married defendant's intestate is left very much in doubt, and as to whatever became of it is left wholly a matter of conjecture. "(b) The court further finds that the cause of action, if any stated, in plaintiff's complaint, is barred by the lapse of time and the laches of the persons interested in the estate of plaintiff's intestate." 2 This finding is amply sustained by the record. For a period of 37 years after the property described in the complaint is alleged to have come into the hands of defendant's intestate, no claim or demand whatever was made by the interested parties for its recovery or for an accounting with respect thereto. No excuse is offered for the unreasonable delay, and no matter what the equities of the parties may once have been, long since they have been rendered exceedingly obscure and doubtful if at any time there were such. For a court of equity, under the circumstances, to now recognize them by ordering an accounting would be placing a premium on inexcusable delay, laches, and negligence of the parties now seeking relief. For the reasons pointed out we are of the opinion that the findings of the district court in defendant's favor are sustained, and that the judgment dismissing plaintiff's cause of action should be affirmed. It is so ordered. Respondent to recover costs. FRICK, WEBER, GIDEON, and THURMAN, JJ., concur. Appeal from Third District. LARSON v. CALDER'S PARK CO. No. 3292. Decided April 11, 1919. (180 Pac. 599.) 1. LANDLORD AND TENANT-NEGLIGENCE OF LANDLORD-IMPROPERLY GUARDED SHOOTING GALLERY-CONTEMPLATION AS TO USE AFTER LEASE. Where defendant, a park company, maintained for several years an improperly guarded shooting gallery, with a path or passageway on the park grounds near the same, it must have known that its tenants would probably continue the use of such shooting gallery, and such must have been in the contemplation of the parties to the lease in view of the facts disclosed.1 (Page 332.) 2. 3. 4. 5. LANDLORD AND TENANT-LANDLORD'S LIABILITY FOR NUISANCEIMPROPERLY GUARDED SHOOTING GALLERY IN PARK-LIABILITY FOR PERSONAL INJURIES. Where an owner created a dangerous nulsance on its land it cannot avoid liability to a person injured thereby by leasing to another its land with the nuisance thereon; especially under conditions where it may be reasonably expected that lessee will continue to put the premises to a use that will continue the nuisance. (Page 334.) LANDLORD AND TENANT-LEASING OF PROPERTY FOR PUBLIC USE- LANDLORD AND TENANT-LEASE OF PREMISES WITH EXISTING NUI- 1 Peterson v. Mining Co., 33 Utah, 20, 91 Pac. 1095, 14 Ann. Cas. 1122; Stationery Co. v. Rogers, 41 Utah, 411, 125 Pac. 866. 6. 7. Larson v. Calder's Park Co., 54 Utah 325. nuisance, and plaintiff's eye was destroyed by a glancing bullet passing out through cracks of a wall at the time when the tenant was in possession, the defendant landlord's negligence was the proximate cause, that is the "efficient cause, the one that necessarily set the other causes in operation" (citing Words and Phrases, First and Second Series, Proximate Cause). (Page 336.) LANDLORD AND TENANT-PREMISES WITH DANGEROUS EXISTING NUISANCE-CONTINUANCE OF NUISANCE LANDLORD'S LIABILITY FOR PERSONAL INJURY. In an action for the loss of an eye, caused by a stray bullet from an improperly guarded shooting gallery, against defendant landlord, who leased the premises with such nuisance existing, held such that motions for nonsuit and directed verdict for defendant were properly denied. (Page 336.) LANDLORD AND TENANT-PARKS-DANGEROUS NUISANCE-LIABILITY OF LANDLORD-INSTRUCTION. Where plaintiff sued for personal injuries resulting from being struck by a bullet glancing from an improperly guarded shooting gallery while on a passageway in defendant landlord's park, which gallery and park were being operated by a tenant, it was immaterial whether defendant landlord intended such passageway to be used as a path, where it was shown conclusively that it had been so used for some time, and it was proper to refuse a requested instruction as to defendant's intention. (Page 338.) 8. TRIAL INSTRUCTIONS-ABSENCE OF EVIDENCE TO SUPPORT. In an action for injuries to plaintiff while upon a passageway in defendant's park, refusal to instruct upon defendant's intention as to the use of such passageway by the public was not error where such issue was not raised by the pleadings.2 (Page 338.) Appeal from District Court, Third District, Salt Lake County; J. Louis Brown, Judge. Action by David Larson, by Laura Richardson, his guardian ad litem, against the Calder's Park Company. Judgment for plaintiff, and defendant appeals. AFFIRMED. J, H. Hurd and L. L. Bagley, both of Salt Lake City, for appellant. 2 Anderson v. Nielson, 43 Utah 564, 137 Pac. 152. Appeal from Third District. D. H. Thomas and W. R. Hutchinson, both of Salt Lake City, for respondent. APPELLANT'S POINTS. The general rule is that there is no implied warranty on the part of a landlord that leased premises are in a safe condition, or that he will keep the premises repaired or in a safe condition. Jones, Landlord and Tenant, section 574. Unless the injury or damage complained of is in law the proximate and direct result of the alleged wrongful act of the owner of premises he is not responsible to the one injured thereon while the same are in the exclusive possession and under the control of the tenant. Anderson v. Baltimore & O. R. R. Co., 81 S. E. 579. RESPONDENT'S POINTS. Where the owner of a public pleasure resort leases the whole resort, and, at the time of the demise, there exists in the resort a building to be used for a shooting gallery, which, by reason of its defective condition at the time of the demise, is dangerous when operated as a shooting gallery, and that condition was known, or by the exercise of reasonable care and diligence could and would have been known to the owner at the time of the demise, and the lessee is permitted to and does, under the lease, operate such shooting gallery in the building while in such dangerous condition, and by reason thereof a patron of the resort is injured, the owner is liable for the injury. Jones on Landlord and Tenant, section 599. 24 Cyc. 1125. WEBER, J. Laura Richardson, as guardian ad litem of her son, David Larson, eleven years of age, instituted this action in the district court of Salt Lake county against the defendant for the recovery of damages for the loss of the boy's right eye as a Larson v. Calder's Park Co., 54 Utah 325. result of defendant's alleged negligence. The case was tried before the court with a jury, and a verdict was rendered in favor of plaintiff, and from the judgment entered thereon defendant appeals. In his complaint the respondent alleges that he is an infant eleven years of age, and that he sues by his guardian ad litem; that defendant is a Utah's corporation; that on June 2, 1916, the date of plaintiff's alleged injury, and for many years prior, appellant was the owner of a pleasure resort or park known as "Wandamere" in Salt Lake City, and that Wandamere was widely known as a suitable and safe place for the entertainment of the public and of children; that long before the alleged injury appellant erected a number of buildings at said resort for the use of itself, and its lessees, and concessioners for the purpose of there conducting attractions and amusements for gain and profit and for the entertainment of the public; that appellant had constructed one of the buildings for the purpose of being used as a shooting gallery, where patrons of the resort were permitted for pay to shoot with rifles loaded with gunpowder and leaden bullets at certain targets; that said shooting gallery was constructed by appellant many years prior to June 2, 1916, and during all the time since its construction had been used as a shooting gallery; that the targets used in the shooting gallery were constructed of iron, and that when bullets would strike against them they would glance from the targets and, unless prevented by some suitable and proper protection, would fly from the targets and from the building out to where patrons of the resort were passing by or standing near the shooting gallery, and were liable to strike and injure such patrons; that during all of the time and continuously up to and including June 2, 1916, there existed immediately east of the building in which the shooting gallery was so operated a well-defined and beaten path which had been continuously, frequently, and regularly used, and at the time of the alleged injury was used, by patrons of the park in passing by the shooting gallery building; that appellant carelessly and negligently so constructed the east wall of said building of boards and lum |