Home HERBERT RUBIN vs. BEACH SOAP COMPANY.

346 Mass. 771

November 4, 1963

Exceptions overruled. The plaintiff in this action of contract seeks to recover for an alleged breach of an implied covenant of quiet enjoyment. The case was referred to an auditor under the usual rule and he found for the defendant. After a trial before a judge on the auditor's report and other evidence, there was a finding for the defendant. The alleged breach of covenant, according to the findings of the auditor and other evidence, consisted of the following: The defendant, on November 23, 1956, leased to the plaintiff a portion of premises owned by it in Lawrence. Another portion of the premises was leased by the defendant to Washington Fibres, Inc. (Washington), under a lease dated July 30, 1956. According to the auditor, "The plaintiff's entire case is predicated upon the fact that his insurance carriers cancelled his fire and casualty insurance effective January 15, 1959 . . . and the plaintiff rewrote them through . . . [other] companies at a much higher premium . . .. The reason for this change of insurance . . . was the increased risk because of the operations [manufacturer of fibers] of . . . Washington . . . on the fifth floor," a legal enterprise involving no violation of law. Concluding, the auditor found that the plaintiff continued to occupy the premises and that there had been no breach of duty to the plaintiff on the part of the defendant, and no breach of the implied covenant of quiet enjoyment. The plaintiff relies on Winchester v. O'Brien, 266 Mass. 33 , and Brande v. Grace, 154 Mass. 210 . We are of opinion that these cases are not controlling. It is to be noted that the plaintiff's lease was executed subsequent to the lease to Washington. Thus the defendant committed no act which impaired the character and value of the leased premises. There was no error.

Home DAVID BRAUN & another vs. THE FOXBORO COMPANY.

346 Mass. 771

November 5, 1963

Decree affirmed with costs. The plaintiffs appeal from a final decree dismissing a bill seeking to enjoin the defendant from discharging surface and contaminated water onto the plaintiffs' land. The facts are established by the master's report, confirmed by interlocutory decree, from which no appeal was taken. We summarize. The lands of the parties are separated by two public ways and a wedge shaped tract between the ways owned by a third person. All of the land is swampy. The natural drainage is from the defendant's land to the plaintiffs'. The defendant enclosed a brook which runs through its land within an eighteen inch pipe

Page 772

and connected it to the head wall of a culvert installed under one of the ways which abuts upon the defendant's land. Other pipes on the defendant's property collect surface water and drain into the eighteen inch pipe. The water thus collected passes through another culvert, which is not on the defendant's land, and continues across the plaintiffs' land. For disposal purposes, the defendant has installed, independent of the drainage system, a sewerage system which does not encroach upon or otherwise affect the plaintiffs' land. The defendant does not contaminate the water which reaches the brook on the plaintiffs' land. The slight periodic increase in the average flow of surface water which now occurs also occurred before the defendant built its plant and is not attributable to the defendant. Of the average flow of sixty gallons per minute from the drainage system, seventeen per cent represents uncontaminated water from the defendant's plant operation. The capacity of the culvert is 1,200 gallons per minute. There is no right to injunctive relief. The water from the defendant's draining system is discharged into a natural watercourse. Fitzgerald v. Fortier, 292 Mass. 268 , 274. The case of Fortier v. H. P. Hood & Sons, Inc. 307 Mass. 292 , is not applicable. The use which the defendant makes of the watercourse is reasonable. Amory v. Commonwealth, 321 Mass. 240 , 246. Kuklinska v. Maplewood Homes, Inc. 336 Mass. 489 , 494. This case in principle is governed by Jackman v. Arlington Mills, 137 Mass. 277 , 283.