74 Mass. 195 | Mass. | 1857
This is a process under the landlord and tenant acts, prosecuted by the plaintiff to obtain possession of two stores situate in State Street in the City of Boston, which are owned by him, but are now held and occupied by the defendants. It is conceded by the plaintiff—and the argument in his behalf in support of the present proceeding, is placed wholly upon that ground—that unless it shall be adjudged by the court, that the steam engine erected by the defendants on the premises is, under the circumstances recited in the statement of facts, a public or private nuisance, this action cannot be maintained. We think it is perfectly clear that no such adjudication can be made. The law does not anywhere peremptorily declare that such a machine erected in a locality like that where this is placed, and to be used for the purposes for which this is said to be intended, is in fact, or is to be deemed and therefore treated as a nuisance. Stationary steam engines designed for use in any mill for planing or sawing of boards, or turning wood in any form, or where any other fuel than coal is used to create steam, are declared by statute to be nuisances, if erected or put up in any town or city of this commonwealth without a license therefor duly granted, or if they shall be used in any way contrary to the orders, rules and restrictions which may have been lawfully made concerning the building in which they are placed, the construction and height of the several smoke flues, and other particulars deemed material and requisite to the safety of the neighborhood. St. 1845, c. 197, §§ 1-3. And by another statute, any steam engine is to be deemed and taken to be a common nuisance, if it is used after the mayor and aldermen of any city or the selectmen of any town shall have issued a temporary order to suspend its use, because it appears to them to be unsafe; or if it is used after those officers, having first adjudged such engine unsafe or defective, shall have passed a
It is not pretended that the steam engine erected by the defendants on the premises has ever been put in operation contrary to the spirit, or in violation of any of the provisions of these statutes; nor is there anything disclosed in the statement of facts, from which it can legitimately be inferred that it has a any time been an annoyance to the public at large, or rendered the enjoyment by any individual of his life or property either unsafe or uncomfortable. It is not shown therefore to be an illegal structure, subject to be abated, or making its proprietors responsible for its continued existence, either as a public or a private nuisance. Rose. Crim. Ev. (3d ed.) 659. Bac. Ab. Nuisance, A. We do not mean to say that a steam engine may not, in consequence of its construction, location or employment, become a public or private nuisance, even if its proprietor violates none of the special and positive provisions of the statutes of this commonwealth, by which the use of such powerful machinery is intended to be regulated and controlled. But in this case the fact is not established. The defendants deny that their engine is on any account or for any reason obnoxious to any legal objection. And as the circumstances shown in the statement of facts agreed to by the parties do not prove it to be a nuisance, it follows as a necessary consequence of the plaintiff’s own concession that his action cannot be maintained.
. Without regard to that concession, it may be laid down in broader terms, that a landlord is not responsible to other parties for the misconduct or injurious acts of the tenants to whom his estate, when no nuisance or illegal structure existed upon it, has been leased for a lawful and proper purpose. In the case of Rich v. Butterfield, 4 C. B. 183, the law is accurately stated by Creswell, J., in these words : “ If a landlord lets premises not in themselves a nuisance, but which may or may not become a nuisance, and it is entirely at the option of the tenant so to use them or not, and the landlord receives the same benefit whether they are or not, he cannot be made responsible for the acts of his tenant.” S. P. Lowell v. Spaulding, 4 Cush. 277. It would be
If this objection to the maintenance of the action could be obviated, there are others which might perhaps be successfully urged; but as the plaintiff concedes that the defendants must, prevail, unless the court first adjudge that their engine is a nuisance, it is unnecessary to take them into consideration.
Plaintiff nonsuit.