Inhabitants of Town of Rockport v. Rockport Granite Co.

• Decision Date: 01 January 1901
• Citation: 177 Mass. 246,58 N.E. 1017
• Parties: INHABITANTS OF TOWN OF ROCKPORT v. ROCKPORT GRANITE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 246

58 N.E. 1017

INHABITANTS OF TOWN OF ROCKPORT v. ROCKPORT GRANITE CO.

Supreme Judicial Court of Massachusetts, Essex.

January 1, 1901

COUNSEL Frederick H. Tarr, for plaintiff.

John M.M. Churchill and Joseph R. Churchill, for defendant.

OPINION

LORING J.

In this case there was a mistrial, but we think that the plaintiff is entitled to keep his verdict. The jury were told that to charge the defendant they must be satisfied that the defendant kept control of all work done by its "motion" men, or that, when Hill began to work as a "motion" man on the land in question, the use of a derrick, as it was then erected, was contemplated by the defendant and by Hill. The jury were further told that, if they did not find one of these two facts, their verdict must be for the defendant. The jury should have been told that the guy of the derrick was a nuisance, and that the defendant was liable if it allowed the derrick, with the guy as it was set up, to be maintained on its land, even though it had been set up by Littleback before the defendant became the owner of the land; at any rate if the fact that it was streteched across the highway as it was was known to the defendant. A "motion" man is a licensee carrying on work on his own account on the land of the licensor, the quarry owner. He is not a tenant. He has no right of possession in the land worked by him, but merely the privilege of quarrying rock on it, and working up the rock into marketable shape,--in the case at bar into paving blocks. The payments made by him to the quarry owner are by way of "stumpage,"--in this case, $2 for every 1,000 of paving blocks,--and not a payment by way of rent. The quarry owner in such a case is no more liable for injuries caused by the "motion" man and his servants than he would be in case the work of quarrying the rock and working it up into paving blocks had been done by an independent contractor. Indeed, his liability is not so extensive; for, in case of work done by a licensee, the work done is done on the licensee's own account, as his own business, and the profit of it is his. It is not a case therefore, where the thing which caused the accident is a thing contracted for by the owner of the land, and for which he may be liable for that reason, even when done by an independent contractor, because it is a thing dangerous in itself, or because the doing of it involves a duty to others, or because it is itself a nuisance. Wetherbee v. Partridge, 175 Mass. 185, 55 N.E. 894; Robbins v. Chicago, 4 Wall. 679, 18 L.Ed. 427; Black v. Finance Co. [1894] App.Cas. 48; Pickard v. Smith, 10 C.B. (N.S.) 470; Hardaker v. District Council [1896] 1 Q.B.Div. 335; Angus v. Dalton, 4 Q.B.Div. 184, 6 App.Cas. 829; White v. Jameson L.R. 18 Eq. 303. Even more the erection of a derrick is such an act that, if it had been done by an independent contractor, and a traveler on the highway had been injured by the negligence of the contractor's servants in erecting it, the landowner would not have been liable. Such an act is a mere transitory act done in the progress of the work, and is what has been described, for want of a better term, as "a casual act of wrong or negligence," and as "collateral negligence." Pickard v. Smith, 10 C.B. (N.S.) 470; Angus v. Dalton, 4 Q.B.Div. 184 6 App.Cas. 829; Hardaker v. District Council [1896] 1 Q.B.Div. 335; Robbins v. Chicago, 4 Wall. ?? 18 L.Ed. 427. But the result of Littleback's erecting the derrick, with the guy stretched across the highway so low as to be dangerous to persons driving over the way, was the erection of a nuisance on the defendant's land. It was held in Gray v. Gaslight Co., 114 Mass. 149, that an owner was liable where the chimney of a building in his exclusive occupation had been made dangerous to those traveling on the highway by the act of a third person in attaching a telegraph wire to it. We have no doubt that an owner is bound to see to it that his land is so managed by persons brought onto it by him as not to cause injury to others; and that if a structure is erected on his land by a licensee, which is in fact a nuisance, and he suffers it to remain there, he is liable to any one injured thereby, at any rate when he knows of the existence of the thing which constitutes the nuisance. That there might be such a duty on the owner of land was...