Lufkin v. Zane

• Decision Date: 08 September 1892
• Citation: 157 Mass. 117,31 N.E. 757
• Parties: LUFKIN v. ZANE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 117

31 N.E. 757

LUFKIN v. ZANE.

Supreme Judicial Court of Massachusetts, Suffolk.

September 8, 1892

COUNSEL

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 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 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, once a week; according to others, twice a week; and one witness testified that they were liable to fill up in a day if the gutters were cleaned out. There was evidence that the tanks were in good condition. A large part of the plaintiff's damages must have come from the overflow of these tanks, and from the basement stalls, from which the urine ran through holes in the basement floor into the earth. The plaintiff bought his estate January 1, 1883, and the defendant bought his of Oliver W. Peabody on January 31, 1884. The defendant's premises, when he bought them, were under a lease from Peabody to one Winship for the term of three years from November 1, 1881, and the lease contained a provision that, in case of a sale of the premises by the lessor during the term, the lessee should quit and deliver up to the lessor the entire premises after having received notice from him to do so within one, two, or three months from the date of said notice. The premises were subject also to another lease by Peabody to Winship, dated October 1, 1883, for the term of three years from November 1, 1884. Both these leases contained covenants on the part of the lessee to make all needful inside repairs, and not to make, or suffer to be made, any alteration therein without consent of the lessor. It does not appear that the last-mentioned lease contained any provision that the lessor might determine it if he sold the premises. Both leases were assigned by Peabody to the defendant when he purchased the property. Winship under these leases remained in possession until Barnard took possession under the lease given him by the defendant. The premises had been used for a stable for many years, and the tanks and the stalls for horses on the first and second floors, and the gutters and their connections with the tanks, were in the stable when the defendant purchased it. It thus appears that the defendant bought the premises subject to two leases to the same tenant for terms which continued to November 1, 1887, and that he could not determine the leases so long as the lessee performed his covenants. If the lessor could have determined them at the time of the sale, this had not been done, and no right was given to the purchaser to determine them. The exceptions recite that "the judge instructed the jury fully in regard to the liability of defendant's grantor as a landowner, in a manner not objected to by the defendant, and continued as follows: 'Now, what was the liability of the defendant before he made the lease to Barnard, and while he held the...