157 Mass. 117 | Mass. | 1892
So far as the injury to the plaintiff’s estate was caused by keeping horses in the stalls in the basement of the stable, the exceptions recite “ that the basement stalls were built and the holes bored by a tenant, Richardson, about March, 1889, without his [the defendant’s] knowledge or consent.” The defendant let the stable to Barnard on October 18,1886, to hold for a term from November 1,1887, to January 1,1897. Barnard, with the consent of the defendant, let it to Richardson on February 1, 1888, to hold for a term of eight years and eleven
So far as the injury to the plaintiff’s estate was caused by the overflow of the two tanks under the floor in the rear of the basement, the principal facts appear to be as follows. The stalls on the first and second floors in the front of the stable were connected with a cesspool in the front of the basement, and this connected with the sewer in Chardon Street. No complaint was made by the plaintiff of this part of the premises. In the rear of the stable there were stalls on the first and second floors, and “ gutters ran along behind the stalls in the rear half of the stable into iron pipes at the rear, which emptied directly into two vats or closed tanks under the floor in the rear of the basement.” These tanks had no outlet, and it was necessary to bail them out and empty the contents into the cesspool in front. The tanks were about two and a half to three feet wide, and about three feet deep, and held about two barrels, possibly a little more, and as they were used, it was necessary to bail them, according to one witness once a week, according to others twice a week, and one witness testified that they were liable to fill up in a day if the gutters were cleaned out. There was evidence that the tanks were in good condition. A large part of the plaintiff’s damages must have come from the overflow of these tanks, and from the basement stalls, from which the urine ran through holes in the basement floor into the earth.
The plaintiff bought his estate on January 1, 1883, and the defendant bought his of Oliver W. Peabody on January 31,1884. The defendant’s premises when he bought them were under a lease from Peabody to one Winship for the term of three years from November 1, 1881, and the lease contained a provision
It thus appears that the defendant bought the premises subject to two leases to the same tenant, for terms, which continued to November 1, 1887, and that he could not determine the leases so long as the lessee performed his covenants. If the lessor could have determined them at the time of the sale, this had not been done, and no right was given to the purchaser to determine them, if the lessee did not make or suffer any strip or waste. ,
The exceptions recite that “the judge instructed the jury fully in regard to the liability of defendant’s grantor as a landowner in a manner not objected to by the defendant, and continued as follows: ‘ Now, what was the liability of the defendant before he made the lease to Barnard, and while he held the land subject to the Peabody leases ? I instruct you, as matter of law, that when he succeeded to the rights of Peabody, he became liable and assumed the responsibilities of Peabody; that is to say, if at the time Peabody let those premises to Winship the
In this case the stable was not a nuisance in itself. It was the use made of it which constituted the nuisance, if there were one. The rule that any person injured by a continuing nuisance can maintain an action against the landowner who created it, or against a grantee who continues it, is subject to the provision that the grantee, if he merely suffers it to remain, must first be asked to abate it, and this implies that he must have the power to abate it. Prentiss v. Wood, 132 Mass. 486. A lessee is a grantee within the meaning of this rule. McDonough v. Gilman, 3 Allen, 264. It was said in Rex v. Pedly, 1 Ad. & El. 822, 827: “ If a nuisance be created, and a man purchase the premises with the nuisance upon them, though there be a demise for a term at the time of the purchase, so that the purchaser has no opportunity of removing the nuisance, yet by purchasing the reversion he makes himself liable for the nuisance.’’ But this seems inconsistent with the opinion written by the Court of the Exchequer Chamber in Gandy v. Jubber, 9 B. & S. 15, and the statement has been often doubted or denied. The subject has been elaborately considered in Ahern v. Steele, 115 N. Y. 203. See also Saltonstall v. Banker, 8 Gray, 195; Dalay v. Savage, 145 Mass. 38; Clifford v. Atlantic Cotton Mills, 146 Mass. 47; McCarthy v. York County Savings Bank, 74 Maine, 315.
We do not see how the defendant can be held liable for the use made of the premises by Winship under the leases from Peabody, as the defendant, so far as appears, had no control over Winship, or over the use made of the premises by him, unless he made or suffered strip or waste, and even if the defendant had the power to enter and expel the lessee, the defendant was
After Winship ceased to occupy the premises and the defendant let them to Barnard, the question is whether the defendant let them with a nuisance upon them, or let them to be used in such a manner as would create a nuisance. As we read the evidence, the nuisance resulted largely, if not wholly, from the negligence or the unauthorized acts of the tenant. If it was reasonably practicable to use the premises for a stable in the manner in which the landlord intended they should be used without creating a nuisance, then it cannot be said that by letting them the landlord authorized the creation or the continuance of a nuisance. On the conflicting evidence in the case as to the sufficiency of the size of the tanks to hold the urine which would drain into them from the number of horses which could properly be kept in the stable as it was constructed when it was let, it may possibly have been a question for the jury whether,
Exceptions sustained.