Staples v. Dickson

88 Me. 362 | Me. | 1896

Haskell, J.

The owner of a fee, adjoining a street, constructed a water box within the limits of the street opposite his land for the purpose of controlling the water from the main pipe in the street, used upon the premises. If rightfully there,the box was not a nuisance per se, but only became so from faulty construction or condition so as to obstruct, endanger or interfere with the public use of the street. That it was illegally placed there does not appear, and, therefore, it may be presumed to have been lawfully there. The aperture was five and one-fourth inches by seven inches in size and covered by a wooden cover. The top of the box was about one and one-half inches above the sidewalk and about the same distance within the outer edge of the same. Whether the form, location and construction of the box was such an obstruction to the public use of the street as to become a common nuisance would depend upon the exigencies of travel in the street. In a crowded street it might be. In a street where there was little passing it might not be. All would depend upon the peculiar circumstances of the case. The court cannot say from the agreed statement, that shows none of the exigencies of the public use of the street, that the box per se became a common nuisance when placed in the street, and only, one and one-half inches within the traveled portion of the same. If, then, it were not a common nuisance when constructed, it did not become so, until after its condition changed ; and before this happened the defendant had purchased the estate to which the box was incident, and shortly afterwards disused the same by shutting off the water and making connections elsewhere. He then abandonded the box in the condition that it had been constructed. It was neither constructed a nuisance, nor became one while in his use. He, therefore, for these reasons, is not liable in this case.

But, in order to save further contention, it may be profitable to consider the matter as if the box had originally been constructed a common nuisance. In that case, liability attached to the person who placed it there in favor of any individual who was injured thereby. Not so with the purchaser of it. He became only liable to an individual after request to remove it. Pillsbury v. Moore, 44 Maine, 154; Holmes v. Corthell, 80 Maine, 31. No request of any kind is shown in this case. It should be noticed that this doctrine applies only while the box remained in its original condition. If the defendant had continued to maintain the box, but changed its elements of danger,— as if he had removed the cover and left the aperture open, — ¡then the particular danger of it would have been of his own creation, and liability would doubtless have attached to him as the creator of it. This, however, he did not do. He abandoned the box as originally constructed, and it became uncoveied, not by him or by any one of his servants or agents. The peculiar danger was not of his creation, and for it be cannot be held responsible.

The pleadings are not reported, but only a statement of facts, upon which it is agreed that the case shall be decided. Both parties have placed the case upon the ground of nuisance in their arguments, and it is therefore considered upon that ground and none other.

Judgment for defendant.