NATHAN BRINDIS & others vs. THE HAVERHILL MORRIS PLAN COMPANY.

PIERCE, J. The case is before this court, after a verdict for the plaintiffs, upon the defendant's exceptions to the refusal of the trial judge to direct a verdict in its favor and to a part of his charge.

The plaintiffs and defendant were tenants of a common landlord. The plaintiffs occupied under a lease the second and third floors and a part of the basement at number 2 Washington Street, Haverhill: The defendant occupied under a lease a part of the ground floor of the same building. The lease of the defendant contained the covenant "that it will keep the said premises in such repair as the same are in at the commencement of said term, or may be put in by the said Lessor or his representatives, during the continuance thereof; reasonable use and wear, and damage by accidental fire or other inevitable accidents only excepted; and also that it will save the said Lessor and his representatives harmless from all loss or damage occasioned by the use, misuse or abuse of the city water, or bursting of the pipes"; and "the lessee further promises that it will keep whole and in good condition, all the window and other glass on the premises, and also the pipes, faucets, and water fixtures and that it will leave the same whole and in good condition at the termination of this lease." The action is in tort for damage to certain

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quantities of leather belonging to the plaintiffs and stored in the basement of the building, which resulted from the leakage of water from corroded and defective steam pipes on the premises leased to the defendant.

Both leases were in force at the time of the alleged damage and neither contained any provision for heating. The building was heated by steam supplied by the Prescott Power Company under oral contracts direct with the plaintiffs and with the defendant. When the steam entered the building it was conveyed through various branch pipes to those persons who had contracted with the Prescott Power Company for steam heating. The branch line which heated the defendant's premises did not supply steam to any other premises, and no claim is made that this pipe or the radiators connected with it were in any way defective. The alleged defective pipe came through the west wall of the premises occupied by the defendant, then ran along about a foot from the ceiling making a turn southerly, then continued straight across, finally going upward through the ceiling, where it supplied steam to the second floor of the building on the premises occupied by the plaintiffs, and thence to the third floor, also to premises occupied by the plaintiffs. While passing through the defendant's premises the pipe was reduced in size from two and one half to two inches. At the point of reduction there was a fitting with a tee hanging downward, from which connections could be made for additional piping. The end of this tee was fitted with a cast iron plug, and it is undisputed that it had been so plugged for many years prior to the tenancy of either the plaintiffs or the defendant, and that the piping and plug had been in use without any additional piping for many years.

On December 9, 1925, from the outside, steam was heard escaping in the building. On forced entrance it was found that the cast iron plug was on the floor directly under the tee; that the threads of the plug were worn smooth from long usage; and that steam and water had come from the open pipe onto the floor of the defendant's premises and seeped through the floor onto the leather of the plaintiffs stored in the basement. Although the defendant's lease did not

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expire until December, 1926, the premises had been vacated for about a year when the injury to the leather was sustained. Heat was turned off from the defendant's leased premises during the time of its vacancy, but the pipe in question with the plug end continued to be used to supply live steam to the premises of the plaintiffs on the floors above. There was testimony for the plaintiffs that there would always be some water in the plugged end; and there could not be enough corrosion to blow a plug; that "Freezing of the water in that piece of pipe would be more liable to push the plug out than anything else. Such freezing would be an adequate cause of throwing out the plug." There was no direct evidence of the freezing of any pipes.

The exception of the defendant to the instruction to the jury that "as matter of law . . . the control of that pipe was in the Morris Plan bank" must be overruled. The pipe, which was within the premises leased by the defendant, was at all times a source of danger to owners and occupants of the adjacent premises unless it was kept in repair and protected from freezing. If we assume, in the absence of the covenant above quoted, that the control and care of the particular pipe were in the lessor, that control and duty of care were vested in the defendant lessee by the covenant to repair, and the lessee, by reason of the covenant, became liable for the nuisance to adjacent owners to the same extent the lessor would have been liable had there been no covenant and the control of the pipe had been retained by the lessor. If the defendant lessee had been the owner of the premises it undoubtedly would have been obligated, as between it and the plaintiffs, to have so cared for the pipe and its connections and fixtures that the use of it or parts of it would not become a nuisance to the adjacent owners. "the same principle is applied when the occupancy and control are transferred for a certain time, and when there is no present nuisance, but the danger is relatively contingent and remote." Quinn v. Crimmings, 171 Mass. 255, 257. Wixon v. Bruce, 187 Mass. 232. Cerchione v. Hunnewell, 215 Mass. 588, 590. Donahue v. M. O'Keefe, Inc. 255 Mass. 35. Assuming that the defendant was in control of the

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pipe and bound to keep it in repair, the evidence was ample to warrant a finding that the defendant had failed to keep the pipe and its connection in good condition or had failed to protect it from freezing. Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49. The motion to direct a verdict for the defendant was denied rightly.

Exceptions overruled.