Leahan v. Cochran
| Decision Date | 21 May 1901 |
| Citation | 60 N.E. 382,178 Mass. 566 |
| Parties | LEAHAN v. COCHRAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles W. Bond, for plaintiff.
G. C Abbott, for defendant.
The evidence tended to show that affixed to the house of the defendant was a conductor, constructed and used for the purpose of carrying water from the roof to the public sidewalk adjoining; that there was a groove in the sidewalk extending from the end of the conductor to the outer edge of the sidewalk; that the water from the conductor had frozen in and about the groove upon the sidewalk; and that the plaintiff, while traveling, in the exercise of due care, over the ice, was injured. The evidence warranted a finding that in the winter the natural and probable result of the situation would be the formation of ice upon the sidewalk which would be dangerous to public travel, and therefore a public nuisance. At the time of the accident the defendant had been the owner of the house for several years, and there was no evidence that the defendant constructed the building the conductor, the groove, or the sidewalk; and it appeared that the condition of the conductor at the time of the purchase was, and ever since had been, the same as at the time of the accident. There was no evidence that the defendant ever had been requested by the plaintiff, or by any other person, to reform the nuisance, or that the plaintiff ever complained of it to the defendant. The action is at common law, and the question whether the notice requisite to the maintenance of an action, under Pub. St. c. 52, § 19, was given, is immaterial. It is not argued that the evidence did not warrant a finding that this conductor in its natural operation did create a nuisance in the highway. The only question presented is whether the court erred in declining to give the second and third rulings requested by the defendant. These requests raise the question whether, the situation being the same as at the time of the purchase by the defendant, she can be held answerable to the plaintiff, in the absence of any request made to her to reform the nuisance. There can be no doubt that in the case of a private nuisance the general doctrine in this country, following Penruddock's Case, 5 Coke, 100, is that the grantee of land upon which, at the time of the grant, there exists a nuisance created by his predecessors in title, is not responsible merely because he has become the owner of the land. His liability arises from his knowingly continuing the nuisance; and, generally, it may be stated that he is not answerable for continuing the nuisance in its original state unless he has had notice to abate, or, at least, until he has had knowledge that it is a nuisance, and injurious to the rights of others; and, while there is some dissent from this doctrine (see opinion of Denio, J., in Brown v. Railroad Co., 12 N.Y. 486; of Strong, J., in Hubbard v. Russell, 24 Barb. 404; and of...
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