157 Mass. 117 (1892), Lufkin v. Zane

Citation:157 Mass. 117, 31 N.E. 757
Opinion Judge:FIELD, J.
Party Name:LUFKIN v. ZANE.
Attorney:[31 N.E. 757] S.J. Elder and W.C. Waitt, for plaintiff. C.W. Bartlett, E.R. Anderson, and C.W. Clark, for defendant.
Case Date:September 08, 1892
Court:Supreme Judicial Court of Massachusetts
 
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Page 117

157 Mass. 117 (1892)

31 N.E. 757

LUFKIN

v.

ZANE.

Supreme Judicial Court of Massachusetts, Suffolk.

September 8, 1892

COUNSEL

Page 118

[31 N.E. 757] S.J. Elder and W.C. Waitt, for plaintiff.

C.W. Bartlett, E.R. Anderson, and C.W. Clark, for defendant.

OPINION

FIELD, J.

So far as the injury to the plaintiff's estate was caused by keeping horses in the stalls in the basement of the stable, the exceptions recite "that the basement stalls were built and the holes bored by a tenant, Richardson, about March, 1889, without his [the defendant's] knowledge or consent." The defendant let the stable to Barnard on October 18, 1886, to hold for a term from November 1, 1887, to January 1, 1897. Barnard, with the consent of the defendant, let it to Richardson on February 1, 1888, to hold for a term of 8 years and 11

Page 119

months from February 1, 1888. Barnard assigned this lease to the defendant on June 18, 1889. This lease contained covenants that the lessee should do all needful inside repairs, and should not make any unlawful, improper, or offensive use of the premises, nor any alterations or additions, during the term, without the consent of the lessor, and that he should be "responsible, and will pay all damages and charges to the city government or others, for any nuisance made or suffered on the premises during said term." There were no stalls in the basement when this lease was executed, and the basement had not previously been used for keeping horses. So far as the injury to the plaintiff's estate was caused by the overflow of the two tanks under the floor in the rear of the basement, the principal facts appear to be as follows. The stalls on the first and second floors in the front of the stable were connected with a cesspool in the front of the basement, and this connected with the sewer in Chardon street. No complaint was made by the plaintiff of this part of the premises. In the rear of the stable there were stalls on the first and second floors, and "gutters ran along behind the stalls in the rear half of the stable, into iron pipes at the rear, which emptied directly into two vats or closed tanks under the floor in the rear of the basement." These tanks had no outlet, and it was necessary to bail them out, and empty the [31 N.E. 758] contents into the cesspool in front. The tanks were about two and a half to three feet wide and about three feet deep, and held about two barrels, possibly a little more, and, as they were used, it was necessary to bail them, according to one witness...

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