Smith v. Faxon , 156 Mass. 589 ( 1892 )

Lathrop, J.

As to the first request for rulings, the jury were instructed that the defendant had the right to make the excavation upon his own land. They were further instructed, that a person was not generally liable for surface water collecting on his land and flowing on to the land of another; that the defendant was not liable if the injury was caused by surface water pouring over from the street into the cellar ; but that he would be liable if the water came in through a drain pipe which discharged it in greater quantities than would otherwise have accumulated in the cellar, and in a different manner; and that, if that was the proximate and efficient cause of the injury, then, although the water first passed upon the defendant’s land before going to the place where it first injured the plaintiff, the defendant might be liable, if the other elements in the case were proven.

That a private landholder has no right to collect water into a definite artificial channel and discharge it upon his neighbor’s land, is well settled. See Bates v. Westborough, 151 Mass. 174, 181, and cases cited. The artificial channel in the case at bar was a drain pipe connecting with a public sewer into which surface water flowed. The right of the defendant to build the drain was not disputed; but the plaintiff’s contention was, that the defendant was negligent in leaving this drain open, without anything to prevent the flow of water back from the sewer. The jury were fully instructed upon this point; and by their verdict they have found negligence on the part of the defendant. We are of opinion that the first instruction requested, so far as it was not given, was properly refused.

The second, third, fourth, and seventh requests for instructions were given.

The fifth request is disposed of by what we have said as to the first.1

The sixth request was properly refused. So far as it relates to surface water, we have already considered it. So far as it relates to the' building of the wall, it omits the element of negligence, which we will consider later.

The eighth request relates to the facts that the plaintiff was a tenant at will of Potter and Watson, who hired the building where the plaintiff did business of the defendant, and that the defendant’s lease to Potter and Watson contained a clause exempting the defendant from liability for loss or damage by fire, “ water, or otherwise.” A similar clause in a lease was construed in Fera v. Child, 115 Mass. 32; and it was held that under it the lessor was not liable for damage done to the lessee’s goods by the bursting of a water pipe in a part of the building not included in the lease. But in the case at bar the action is not brought against the defendant as the owner of the building, but for a tort committed by him as the owner of an adjoining lot of land; and we are of opinion that the clause in question does not apply.

The ninth instruction requested was, that, upon all the evidence, the plaintiff was not entitled to recover. We need not consider whether the plaintiff could maintain his action, on the doctrine of Rylands v. Fletcher, L. R. 3 H. L. 330, aside from evidence of negligence on the part of the defendant. See Snow v. Whitehead, 27 Ch. D. 588. The plaintiff’s declaration charges negligence, and the case was tried upon this issue; and the jury ■were instructed that, unless the plaintiff proved that the defendant was negligent, the verdict must be for the defendant. To show negligence, the plaintiff relied upon two facts, about which there does not seem to be any dispute. The first was that the pipe leading from the bottom of the cellar to the sewer was so constructed that there was nothing to prevent water from flowing from the sewer into the cellar. The other was, that the defendant, in digging his cellar, took out the foundation of the Potter and Watson building, cut off the old piles three feet, rebuilt the foundation with granite laid in cement, built the new wall adjoining, filled in the walls about the piles, but did not fill in the earth about the foundations until after the flooding. There was also evidence that the walls and earth were negligently left in a dangerous and improper condition; that changes had been made in the wall of the Potter and Watson building ; that that wall had been negligently left in an improper condition ; and that the water had there passed through into the plaintiff’s premises.

We cannot say that there was no evidence for the consideratian of the jury of negligence on the part of the defendant. If such negligence existed, and the jury have found by their verdict that the defendant did not use the same care in the construction and management of his cellar as is usual with men of ordinary care and prudence, under similar circumstances, the fact that an extraordinary storm contributed to the plaintiff’s injury does not exonerate the defendant. Salisbury v. Herchenroder, 106 Mass. 458, and cases cited. . Exceptions overruled.