397 Mass. 1007

June 12, 1986

Linda J. Thompson for the defendant.

William T. Walsh, Jr., Assistant District Attorney, for the Commonwealth.

The defendant died following the argument of this appeal. The assistant district attorney filed a Suggestion of Mootness, stating the Commonwealth's position that there were no issues "so novel or unique" as to warrant the court to issue an opinion. The defendant's counsel requests that we issue an opinion. When a criminal defendant dies pending his appeal, the general practice is to dismiss the indictment. Commonwealth v. Eisen, 368 Mass. 813 (1975). There is nothing about the issues raised in this appeal that leads us to vary this general rule.

Judgment on complaint No. JR 84-718A is vacated. The case is remanded to the Springfield District Court, where the complaint shall be dismissed.

So ordered.


397 Mass. 1007

June 16, 1986

Michael J. Stone for the plaintiff.

Francis G. Chase, Assistant Attorney General, for the defendant.

The plaintiff's amended complaint sought recovery for damage to its personal property by virtue of an alleged private nuisance. A judge of the

Page 1008

Superior Court in Middlesex County allowed a motion by the defendant, Metropolitan District Commission (MDC), for summary judgment under Mass. R. Civ. P. 56 (b), 365 Mass. 824 (1974). [Note 1] In doing so, the judge relied on Green v. Commonwealth, 13 Mass. App. Ct. 524 (1982), for the proposition (as he thought) that, while the Commonwealth and its agencies might by liable for maintenance of a private nuisance, such liability was limited to damage to real estate only. See Morash & Sons v. Commonwealth, 363 Mass. 612, 614 (1973) ("just as in the case of its political subdivisions, the Commonwealth is not immune from liability if it creates or maintains a private nuisance which causes injury to the real property of another" [emphasis supplied]).

In this case, the plaintiff was a tenant of the MDC and suffered damage to its personalty when water contained by an MDC dam was allowed to overflow and flood the plaintiff's place of business. On appeal by the plaintiff, the Appeals Court concluded that neither the decision in Morash, supra, nor that in Green, supra, warranted the trial judge's granting of summary judgment for the MDC. H. Sacks & Sons v. Metropolitan Dist. Comm'n, 20 Mass. App. Ct. 45 (1985). We granted the MDC's application for further appellate review. Mass. R. A. P. 27.1, as amended, 367 Mass. 922 (1975). We agree with the decision of the Appeals Court, and reverse.

It is not necessary to restate the law, as it is set forth correctly in the opinion of the Appeals Court. We need state only three points. First, Green is inapposite, as it is a negligence case and not a private nuisance case. Second, Morash expressed the law of private nuisance in terms of damage to real estate because that question was the issue before the court. Third, the common law doctrine of private nuisance, as it developed with regard to municipalities and extended to the Commonwealth in Morash, recognized the claim of tenants and others for damage to personal property. Sacks, supra at 47 (and cases cited).

Judgment for the MDC is vacated, and the case is remanded to the Superior Court for further proceedings.

So ordered.


[Note 1] The incident occurred before the enactment of G. L. c. 258 (Massachusetts Tort Claims Act).