ZELOTIE A. COMAN vs. JOHN ALLES.

SHELDON, J. There is no doubt of the general proposition that one who does an unlawful act is liable in damages to any one who sustains personal injuries or other special and peculiar damages therefrom. Moeckel v. Cross & Co. 190 Mass. 280. Kirby v. Boylston Market Association, 14 Gray 249, 251. It is for this reason that one who so constructs or maintains a structure upon his own premises as to cause an artificial discharge or accumulation of water upon a travelled way, so as by its freezing from natural causes to make the use of the way dangerous, may be held to answer to any one who, being rightfully upon the way and in the exercise of proper care, is injured in consequence of such dangerous condition. Of the numerous decisions which have applied the principle in this State, it is sufficient to refer to Hynes v. Brewer, 194 Mass. 435, and Cavanagh v. Block, 192 Mass. 63. For the same reason, one who so constructs the roof of his building as to create a danger that ice and snow will fall therefrom into the highway is liable for injuries caused thereby to any one injured by such a fall while travelling upon the highway. Shipley v. Fifty Associates, 101 Mass. 251. As was said by Chapman, C. J., in the case last cited, "Any act of an individual, though performed on his own soil, if it detracts from the safety of travellers, is a nuisance."

Page 101

The plaintiff contends that the case at bar comes within this principle. It is provided by St. 1892, c. 419, § 66, that "all buildings over forty-five feet high shall have suitable water-tight metallic leaders, and all buildings shall have leaders sufficient to carry all the water to the street, gutter or sewer, in such a manner as not to flow upon the sidewalk, or to cause dampness on any wall, yard or area." The defendant's building was over forty-five feet high. The plaintiff, while walking on the sidewalk in front of the defendant's building, was struck and injured by a mass of snow and ice which fell from under the gutter and from the upper portion of the conductor or "leader," where it had formed because the conductor had frozen up. The plaintiff offered to show that this conductor had been constructed by the defendant in 1896, and was made of corrugated zinc in sections, with joints which could slide over each other to allow for contraction or expansion; that it descended from the gutter to a point near the ground upon the defendant's premises about five feet from the sidewalk, and then turned and ran nearly horizontally out to the line of the street, and emptied upon the sidewalk; that the effect of this construction was to cause water to freeze readily in the horizontal part of it near the ground, thus forcing the water to fill up the conductor, leak out through the joints and back up into the gutter, thereby creating large accumulations of ice upon and under the gutter and along the conductor, which were likely to fall at any time; and that this was the cause of the fall of ice and snow which struck the plaintiff. And the plaintiff offered to show that this conductor or leader was not in these respects a "suitable" one within the meaning of the statute already stated.

We assume that, if these facts were proved, the jury might have found that the defendant had failed to comply with the provisions of the statute, and that the injuries to the plaintiff were the direct and proximate result of his failure; or else that under the circumstances and in view of the proximity of his house to the highway and the liability of injury to travellers from the falling into the highway of accumulations of ice which naturally would be formed upon and about his gutter and conductor if the horizontal part of the latter were allowed to freeze up and thus obstruct the flow of water, due care required him

Page 102

to guard against such freezing and against the accumulation of ice upon and around and above his conductor in such a manner and to such an extent as to be dangerous to travellers upon the street.

But it was agreed that at the time of the accident the defendant's premises were in the occupation of a tenant, under a lease given by the defendant before the accident and still in force at that time. This lease contained covenants on the part of the lessee to keep the leased premises in such repair as the same were in at the commencement of the term, or might be put in by the lessor or his representatives during its continuance, with the usual exceptions of reasonable use and wear and damage by fire or inevitable accident, and to save the lessor and his representatives harmless from any claim or damage arising from neglect in not removing snow and ice from the roof of the building or from the sidewalks bordering on the premises leased. The premises leased were described as "the brick dwelling-house known and numbered thirty-three (33) on Hancock Street in said Boston"; and it is manifest that not only the gutters, but the conductor here in question passed to the tenant as a part of the leased premises. Durant v. Palmer, 5 Dutch. 544. It was more manifestly parcel of the leased premises than the Hyatt light in Boston v. Gray, 144 Mass. 53, or the aperture over the coal cellar in Pretty v. Bickmore, L. R. 8 C. P. 401.

Under these circumstances the decisions in Clifford v. Atlantic Cotton Mills, 146 Mass. 47, and Wixon v. Bruce, 187 Mass. 232, are decisive of the case at bar. The utmost that can be said of this conductor, with reference to the accident which has happened, is that it was capable of being used in such a manner as to create a nuisance. But that is not enough, as was pointed out by Holmes, J., in Clifford v. Atlantic Cotton Mills, ubi supra. The manifest possibility that the tenant might allow the water in the horizontal part of the pipe to freeze, and might neglect to remove the resulting accumulations of ice from the gutter and the upper part of the conductor, does not warrant the inference that this mode of using the premises by the tenant was plainly contemplated by the defendant any more than in the cases just cited. Here, as in those cases, the direct cause of

Page 103

the injury to the plaintiff was the nuisance created by the acts and negligence of the tenant in failing to guard against the improper accumulations of ice upon his premises; and the liability will stop with the tenant, whose wrongdoing was the proximate cause of the plaintiff's injury. It would be strange if the liability upon the landlord for ice or snow accumulated upon the front of his building by reason of the tenant's having failed to keep the conductors clear were greater than for a similar accumulation upon his roof, or upon the sidewalk in front of his building by reason of the tenant's failure to keep them clear and in safe condition. While it is true that the landlord does by the letting authorize the continuance of any nuisance which already exists, and is accordingly responsible for such continuance and for the consequences, yet, if the premises can be used by the tenant in the manner intended by the landlord without becoming a nuisance, then the landlord is not liable for any nuisance created by an act of omission or of commission, done by the tenant without authority after he has entered into possession. Lufkin v. Zane, 157 Mass. 117. And see besides the cases already cited, Neas v. Lowell, 193 Mass. 441: Frischberg v. Hurter, 173 Mass. 22; Glynn v. Central Railroad, 175 Mass. 510, 512; Quinn v. Crimmings, 171 Mass. 255, 256; McLean v. Fiske Wharf & Warehouse Co. 158 Mass. 472; Mellen v. Morrill, 126 Mass. 545; Leonard v. Storer, 115 Mass. 86; Milford v. Holbrook, 9 Allen 17, 21. We have examined the other cases cited by the plaintiff and find nothing in them to alter the conclusion which we have reached.

We have not found it necessary to consider whether the testimony that the defendant after this accident repaired the conductor and placed new guards upon the roof was competent to show that he assumed the obligation to make these repairs under the rule of Readman v. Conway, 126 Mass. 374, and Perkins v. Rice, 187 Mass. 28, 30. There was here a written lease; there was no doubt, as we have said, that the roof and the conductor had passed to the tenant under the demise; there was no question as to the contractual obligation to repair, or the actual occupation and control of the premises; and the language of Braley, J., in Kearines v. Cullen, 183 Mass. 298, 301, seems to be applicable. The proximate cause of this accident was the

Page 104

manner in which the tenant used the premises, rather than any lack of repair or unfit condition of the premises themselves. According to the terms of the report, there must be

Judgment on the verdict.