Ainsworth v. Lakin

• Decision Date: 25 February 1902
• Citation: 180 Mass. 397,62 N.E. 746
• Parties: AINSWORTH v. LAKIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 397

62 N.E. 746

AINSWORTH v. LAKIN.

Supreme Judicial Court of Massachusetts, Hampden.

February 25, 1902

COUNSEL

J. B. Carroll and W. H. McClintock, for plaintiff.

R. A Allyn, S. S. Taft, and A. S. Kneil, for defendant.

OPINION

KNOWLTON J.

The defendant's intestate was the owner of the land and of the first two stories of the building which stood upon it before the fire. The third story had been conveyed by the former owners to Lewis, Noble, and Laflin, trustees, to hold during the life of the building. By the fire the life of the building was destroyed, and the ownership of Lewis and others in the third story was terminated. Ainsworth v. Mt Moriah Lodge, 172 Mass. 257, 52 N.E. 81. The defendant's intestate was left with his land and the walls and some other parts of the first and second stories standing upon it, and with the walls of the third story which had previously belonged to the trustees, resting on the structure below, and connected with it as a part of the realty. All rights of other persons in the walls of the third story had come to an end. As owner of the land and of the first and second stories of the building, he was owner of everything upon it which was a part of the real estate. Stockwell v. Hunter, 11 Metc. 448, 45 Am. Dec. 420; Shawmut Nat. Bank v. City of Boston, 118 Mass. 125. His position in reference to the walls of the third story was like that of a landlord whose tenant leaves the leased land at the end of the term with structures that he has erected upon it, which have become a part of the realty. These structures which are abandoned by the tenant immediately become the property of the landlord to whose land they are affixed. Burk v. Hollis, 98 Mass. 55; Madigan v. McCarthy, 108 Mass. 376, 11 Am. Rep. 371; Watriss v. Bank, 124 Mass. 571, 26 Am. Rep. 694; McIver v. Estabrook, 134 Mass. 550. As owner of the land and the structures upon it, which were subject to the power of gravitation, and likely to do injury to others if they fell, the defendant's intestate owed certain duties to adjacent landowners. His duty immediately after the fire was affected by the fact that until then he had had no ownership or control of the upper part of the wall, and that the condition of the whole had been greatly changed by the effect of the fire and the destruction of the connected parts. For dangers growing out of changes which he could not prevent he was not immediately liable. Gray v. Gaslight Co., 114 Mass. 149, 19 Am. Rep. 324; Mahoney v. Libbey, 123 Mass. 20, 25 Am. Rep. 6. The jury were therefore rightly instructed that, before a liability could grow up against the defendant's intestate after the fire, he was entitled to a reasonable time to make necessary investigation and to take such precautions as were required to prevent the wall from doing harm.

We come next to the question, 'What was his duty and what was his liability after the lapse of such a reasonable time?' There is a class of cases in which it is held that one who, for his own purposes, brings upon his land noxious substances or other things which have a tendency to escape and do great damage, is bound at his peril to confine them and keep them on his own premises. This rule is rightly applicable only to such unusual and extraordinary uses of property in reference to the benefits to be derived from the use and the dangers or losses to which others are exposed as should not be permitted except at the sole risk of the user. The standard of duty established by the courts in these cases is that every owner shall refrain from these unwarrantable and extremely dangerous uses of property unless he provides safeguards whose perfection he guaranties. The case of Rylands v. Fletcher, L. R. 3 H. L. 330; Id., L. R. 1 Exch. 267,--rests upon this principle. In this commonwealth the rule has been applied to the keeping of manure in a vault very near the well and the cellar of a dwelling house of an adjacent owner. Ball v. Nye, 99 Mass. 582, 97 Am Dec. 56. See, also, Fitzpatrick v. Welch, 174 Mass. 486, 55 N.E. 178, 48 L. R. A. 278. That there are uses of property not forbidden by law to which this doctrine properly may be applied is almost universally acknowledged. This rule is not applicable to the construction and maintenance of the walls of an ordinary building near the land of an adjacent owner. In Quinn v. Cummings, 171 Mass. 255-258, 50 N.E. 624, 626, 42 L. R. A. 101, 68 Am. St. Rep. 420, Mr. Justice Holmes shows that in reference to the danger from the falling of a structure erected on land 'the decision as to what precautions are proper naturally may vary with the nature of the particular structure.' He says: 'As it is desirable that buildings and fences should be put up, the law of this commonwealth does not throw the risk of that act, any more than of other necessary conduct, upon the actor, or make every owner of a structure insure against all that may happen, however little to be foreseen.' The principle applicable to the erection of common buildings whose fall might do damage to persons or property on the adjacent premises holds owners to a less strict duty. This principle is that, where a certain lawful use of property will bring to pass wrongful consequences from the condition in which the property is put, if these are not guarded against, an owner who makes such a use is bound at his peril to see that proper care is taken in every particular to prevent the wrong. Woodman v. Railroad Co., 149 Mass. 335, 21 N.E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427, and cases cited; Curtis v. Kiley, 153 Mass. 123, 26 N.E. 421; Pye v. Faxon, 156 Mass. 471, 31 N.E. 640; Harding v. City of Boston, 163 Mass. 14-19, 39 N.E. 411, and cases cited; Cabot v. Kingman, 166 Mass. 403-406, 44 N.E. 344, 33 L. R. A. 45; Robbins v. Atkins, 168 Mass. 45, 46 N.E. 425; Thompson v. Railway Co., 170 Mass. 577, 49 N.E. 913, 40 L. R. A. 345, 64 Am. St. Rep. 323; Quinn v. Cummings, 171 Mass. 255, 256, 50 N.E. 624, 42 L. R. A. 101, 68 Am. St. Rep. 420; Boomer v. Wilbur, 176 Mass. 482, 57 N.E. 1004, 53 L. R. A. 172; Sessengut v. Posey, 67 Ind. 408, 33 Am. Rep. 98; City of Anderson v. East, 117 Ind. 126, 19 N.E. 726, 2 L. R. A. 712, 10 Am. St. Rep. 35; City of Chicago v. Robbins, 2 Black, 418-428, 17 L.Ed. 298; Homan v. Stanley, 66 Pa. 464, 5 Am. Rep. 389; Mayor, etc., v. Bailey, 2 Denio, 433; Bower v. Peate, 1 Q. B. Div. 321; Tarry v. Ashton, Id. 314; Gray v. Pullen, 5 Best & S. 970-981; Dalton v. Angus, 6 App. Cas. 740, 829. The duty which the law imposes upon an owner of real estate in such a case is to make the conditions safe so far as it can be done by the exercise of ordinary care on the part of all those engaged in the work. He is responsible for the negligence of independent contractors as well as for that of his servants. This rule is applicable to every one who builds an ordinary wall which is liable to do serious injury by falling outside of his own premises. It is the rule on which the decision in Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 234, rests, and the case is not an authority for any liability of a landowner that goes beyond this. See, also, Gray v. Harris, 107 Mass. 492, 9 Am. Rep. 61; Inhabitants of Shrewsbury v. Smith, 12 Cush. 177. The uses of property governed by this rule are those that bring new conditions which involve risks to the persons or property of others, but which are ordinary and usual, and, in a sense, natural, as incident to the ownership...