and H. P. Sweetser, for defendant.

PEABODY, J. This was an action of trespass with a count also in trover; the writ being the same as in Young v. Chandler, 102 Me. 251, 66 Atl. 539.

Upon trial of the cause before a jury the

verdict was for the defendant.

The case is before the court on motion by the plaintiff for a new trial, and on exceptions to the charge of the presiding justice. The motion for a new trial would seem to have no sufficient basis, since the issues were peculiarly within the province of the jury.

In the decision of the court above referred to it was held that the greenhouse has become a part of the mortgage security, and by foreclosure the defendant became the owner by accession, as there was no evidence of his consent that the greenhouse should remain personal property after annexation. There being nothing in the evidence at the second trial to change the legal aspect of this title, the presiding justice properly charged the jury that, in view of this decision, they were to leave the greenhouse entirely out of consideration. The plaintiff's first exception was to that portion of the charge, and cannot be sustained.

It only remains to ascertain whether the plaintiff presents by his other exceptions any error in the charge of the presiding justice which may have prejudicially influenced the jury in their verdict.

The second exception is to that part of the charge which relates to the abandonment of certain of the property described in the writ. The evidence tended to show that, while the plaintiff was removing portions of the greenhouse from the defendant's premises, the defendant ordered him to desist, making some reference to an official badge which he wore at the time, but with no attempt to use actual force. There is some doubt whether the act of the defendant had particular reference to the day, which was Sunday, or to the particular property which the plaintiff was removing at the time, or whether it was a general prohibition against removing any of the property to which the plaintiff claimed title, but it appears that the plaintiff actually made no further attempt to remove either the remaining portions of the greenhouse or any of the compost, plants, etc., specified in the writ.

The presiding justice instructed the jury that "the law requires men to use a reasonable amount of diligence and firmness in asserting rights to their property. They cannot on the simple say-so of some one else relinquish their personal property and allow that property to go to waste and ruin.

abandon his property under those circumstances and the property be allowed to go to decay and then recover the value of it." The presiding justice further said:

"Of course, if the circumstances were such that he foresaw that a personal collision, a personal encounter, would result, he would then be justified in abandoning the property because no man is required to break the law in order to enforce the law."

It is apparent, therefore, that the jury were not misled by these instructions in reaching the conclusion that the compost and a few of the plants and other chattels which clearly belonged to the plaintiff were intentionally abandoned by him, and that the defendant was not chargeable with any violent act of dominion over them. This applies to a very small part of the property upon which the plaintiff founds his action, since it has been already determined that the greenhouse belonged to the defendant, and uncontradicted evidence in the case tended to show that the greater part of the plants remaining on the premises had been given to the defendant's wife by the prior owner, and so were not included in the property sold by him to the plaintiff.

In an action of trespass as well as an action of trover, the wrongful act of the defendant constitutes the gist of the action. A verdict for the defendant, therefore, determines that he did not commit the acts complained of, and it must be assumed that the jury were not influenced by any instruction relating to the measure of damages.

The third, fourth, fifth, and sixth exceptions relate to damages, and need not, therefore, be considered, since the jury did not reach that question. Motion overruled. Exceptions overruled.

(104 Me. 156)

SMITH v. PRESTON. (Supreme Judicial Court of Maine. April 22, 1908.)

1.

NUISANCE (§ 72*) COMMON NUISANCE SPECIAL DAMAGES.

One who suffers special injury from a common nuisance may recover damages in an action at law from the person creating it.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 164; Dec. Dig. § 72.*] 2. MUNICIPAL CORPORATIONS (8 776*) — ОвSTRUCTION IN PUBLIC WAY "NUISANCE."

An obstruction placed within the limits of a public way is a nuisance at common law as well as by statute.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1630; Dec. Dig. §

776.*

For other definitions, see Words and Phrases, vol. 5, pp. 4855-4864; vol. 8, p. 7734.]

ant.

KING, J. On the 1st day of February, 1907, between 9 and 12 o'clock in the forenoon, the plaintiff, a lady past 80 years of age, while walking on the sidewalk on the southerly side of Washington avenue in Portland, fell and received bodily injuries. She claims that the cause of her fall was a spot of ice which had formed there by the freezing of water wrongfully conducted by the defendant from his building upon the sidewalk, and which rendered the walk dangerous. In this action for damages she has obtained a verdict, and the case is here on defendant's motion to have the verdict set aside as being against the law and evidence and upon exceptions.

care on her part. She was found, with her hip fractured, at the place where the ice was. She says she slipped and fell on the ice. There is nothing in the case suggesting that she had any infirmity on account of which she should have refrained from using the public streets. On the other hand, it appears affirmatively that she was accustomed to travel upon the streets, and was active and spry for one of her age.

Her statement as to her conduct at the

time was: "I was walking along the sidewalk as I usually do, paying attention to my business." The jury had a right to understand from that statement that she was "paying attention" to where and how she was walking. That is evidence of due care. Whether or not she did, in fact, exercise due care, was an issue for the jury. That issue they must have decided for the plaintiff, and their decision should control.

It will serve no useful purpose to incorporate here any extended review of the evidence, which is somewhat conflicting. From an examination of the whole case, we are of

Attached to the east side of this building, on Washington avenue, is a one-story building of the defendant, adjoining the line of the sidewalk, with its roof sloping back from the street. Both buildings were occupied by tenants, and all repairs were to be made by the defendant.

The plaintiff claimed, and introduced evidence tending to show, that the gutter on the easterly side of the two-story building was defective and leaky, and that at its northerly end over the sidewalk, there was an opening in the joint through which the water it accumulated was wrongfully discharged upon the walk where it froze, forming a dangerous accumulation of ice, that was an obstruction of the walk, and caused her injuries without fault on her part.

The defendant denied this claim, and testified that the gutter was not defective, that water was not discharged from it upon the walk, and that on the morning of the day of the accident he passed over this sidewalk, and saw there no accumulation of ice as the plaintiff alleged.

There can be little or no doubt, however, from all the evidence that there was at the time of the plaintiff's accident, and had been for some time prior thereto, a defect in the gutter through which water was unnatural

finding that the sidewalk was obstructed by an accumulation of ice resulting from water artificially collected and aischarged upon it by a defective gutter of the defendant's building, over which he had control as to its physical condition and repair, and that while rightfully using the sidewalk as a traveler. and in the exercise of due care, the plaintiff was injured by that obstruction.

If upon these facts and conditions the action is maintainable, then the defendant's motion for a new trial must be denied.

But, notwithstanding those facts, the defendant contends that he did not create the obstruction by any wrongful act, or cause its existence by the neglect of any duty owing by him to the plaintiff; and, furthermore, that he was a mere landlord, and not the occupant of the building, and that those in occupation as tenants are liable, if any one is liable, for the alleged obstruction.

We have already observed that the jury were warranted in finding as a fact that the building, at least that part of it fncluding the defective gutter, was under the general care of the defendant, and that he had such control of the premises as was necessary to keep them in proper and safe condition. His own testimony established that fact. In answer to the question: "What arrangement, if any, had you made for the repairs of the twostory building?" he said: "Well, I made all repairs. When I was informed anything was needed, or if I discovered anything was out of repair, I had it fixed." He not only retained the right to make repairs, but the lia

Whenever an owner is bound to repair his building, and has control of it sufficient for that purpose, he, and not the tenants, is liable to a third person for damages arising from a neglect to repair. Such liability rests upon the elementary principle that the party whose neglect of duty causes the damages is responsible therefor. Kirby v. Boylston Market Association, 14 Gray (Mass.) 249, 74 Am. Dec. 682; Shipley v. Fifty Associates, 101 Mass. 251, 254, 3 Am. Rep. 346; Id., 106 Mass. 194, 200, 8 Am. Rep. 318; Larue v. Farren Hotel Co., 116 Mass. 67.

The same principle governs in actions between tenant and landlord for damages arising from defects and want of repair of the premises. See Toole v. Beckett, 67 Me. 544, 24 Am. Rep. 54; Simonton v. Loring, 68 Me. 164, 28 Am. Rep. 29; McCarthy v. York County Savings Bank, 74 Me. 315, 43 Am. Rep. 591; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 15 N. E. 84, 4 Am. St. Rep. 279. In all the cases the criterion of liability is the obligation to maintain and repair with the right of control for that purpose.

As bearing upon the defendant's liability, it is also to be noticed that the duty here neglected was to repair the gutter and maintain it in a reasonably suitable condition to keep the water it collected from the sidewalk, and not merely to keep the gutter free from such obstructions of ice or snow as would be likely to occur from storms and sudden climatic changes in the winter season. The latter duty may rest upon the occupant, although the owner is bound to maintain and repair. But that is not this case. Here the neglect to repair allowed the water to fall upon the walk unnaturally. It was the defendant's neglect, because the duty to repair rested on him.

Was the defendant's failure to repair the gutter, so that the water it collected should not be discharged unnaturally upon the public way, the neglect of a duty he owed to the plaintiff?

The proprietor of land may maintain a structure thereon up to the line of a public way, but he cannot thereby unreasonably obstruct such way with impunity.

The defendant by his building intercepted and artificially collected the snow and rain which would have been harmless if allowed to reach the ground as it fell from the clouds. It was his duty to control the water so collected, and not discharge it or allow it to escape to the injury of others.

would not have naturally fallen, if in so doing he obstructs such way. No one would contend that an abutter upon a public way would have the right to obstruct such way by discharging water thereon from his cistern. Wherein is the distinction between such case and the one before us? The same duty to refrain from obstructing the public way arises in the one case as in the other. In either case the water would be discharged upon the way unnaturally in consequence of the use made of adjoining property.

The reason why the defendant owed a duty to the plaintiff not to cause her injury by turning the water from his building upon the public way is very aptly stated in Shipley v. Fifty Associates, 106 Mass. 197, 8 Am. Rep. 318, in these words: "The plaintiff at the time of the accident was where she had a right to be, and was not guilty of any want of due and reasonable care. For the purpose for which she was using the sidewalk, her rights were exactly the same as if she owned the soil in fee simple. The case in our judgment depends upon the same rules, and is to be decided on the same principles, as if it raised a question between adjoining proprietors, in which the lands or buildings of one were injured by the manner in which the other had seen fit to occupy or use his own land and buildings. In contemplation of law the person is at least as much entitled to protection as the estate."

If one may not use his property to the injury of his neighbor's land, he certainly may not use it to the injury of his neighbor's person while rightfully traveling upon the public way.

The right of travelers to use the public way may be temporarily interrupted, and the traveler must submit to some inconveniences occasioned by the use of adjoining property for business purposes. Such necessary interruptions and unavoidable inconveniences are not unlawful obstructions. But in this case the jury have found that the sidewalk was unlawfully obstructed as the result of the defendant's neglect to keep his building in safe condition.

From both reason and authority the defendant must be held liable for the obstruction which caused the plaintiff's injury.

An obstruction placed within the limits of a public way is a nuisance at common law as well as by statute. Rev. St. c. 22, § 5; Corthell v. Holmes, 88 Me. 376, 34 Atl. 173. One who suffers special injury from a common nuisance may recover damages in an action at law from the person creating it. Rev. St. c. 22, § 13; Holmes v. Corthell, 80 Me. 31, 12 Atl. 730; Brown v. Watson, 47 Me. 161, 74 Am. Dec. 482; Dudley v. Kennedy, 63 Me. 465; Staples v. Dickson, 88 Me. 362, 34 Atl. 168.

the occupants of the building to remove the snow and ice from the sidewalk adjoining the building. Assuming that such duty did devolve upon the occupants, we think the neglect of that duty did not discharge the defendant from his liability in this action. He who creates an obstruction in the public way is not relieved from liability for damages to travelers resulting therefrom, notwithstanding that some other person has neglected his duty to remove the obstruction. The defendant's liability here arises from the fact that he caused the obstruction, and not because an obstruction, which he did not cause, was suffered to exist on the walk adjoining his property. The motion must be denied. The Exceptions. At the conclusion of the charge, counsel for the defendant requested the court to instruct the jury:

"That if there was an understanding that the landlord should make repairs for the tenant, if there were any defects, he would not be liable until, he got notice from the tenant." To which the court replied: "I shall decline to give that, except as I have already explained."

The question whether the liability to repair was upon the defendant or his tenants under the letting was clearly presented to the jury as an issue of fact, and, as to the defendant's knowledge of the particular defect, the court said: "He would not be liable for anything which he was absolutely ignorant of, either as understanding how this gutter was originally made, or having his attention by observation called to its condition, if it seemed to be absolutely perfect as he observed it from day to day. But if he did, by his constant observation of his building, being a practical man, observe what the condition of this gutter was, having an opportunity as he passed by to see whether it was leaking or not, or whether there was ice being formed underneath it, the jury would determine whether as a matter of fact he knew of its condition, or would, by reasonable diligence, have been bound to know. So if you find that he had the control of the roof and was bound to make the repairs upon it, and that the tenants were not, then he would be liable, provided there was such a public nuisance caused by him as obstructed the sidewalk and made it dangerous at the time."

The case does not show that there was any understanding that the tenants were to have any care over the exterior of the building or even to report to the defendant any defect which they might observe therein. We think the requested instruction was properly refused. The instructions given upon the matter of notice to the defendant were as favorable as he could claim. The exceptions must be overruled. The entry is to be:

Motion and exceptions overruled.
Judgment on the verdict.

(104 Me. 126)

LITTLEFIELD et al. v. MAINE CENT. R. CO.

(Supreme Judicial Court of Maine. April 1, 1908.)

1. PLEADING (§ 189*)-MOTION TO DISMISSDEMURRER. At common law a motion to dismiss and a demurrer are not interchangeable.

[Ed. Note. For other cases, see Pleading, Dec. Dig. §. 189.*]

2. DISMISSAL AND NONSUIT ( 55*)-MOTION TO DISMISS-Grounds.

At common law a motion to dismiss can be used to abate the action only when it is apparent from the record that the court has no jurisdiction; and, when an order of dismissal is made, the action ends.

[Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. § 116; Dec. Dig. § 55.*]

3. PLEADING (§ 225*)-DEMURRER-OPERATION AND EFFECT.

risdiction, but attacks the pleadings; and, if At common law a demurrer admits the juthe demurrer be sustained, the action is not thereby dismissed, but there may still be opportunity for amendment, and, until further steps are taken, the action remains on the docket.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 575; Dec. Dig. § 225.*] 4. DISMISSAL AND NONSUIT (§ 58*)—MOTIONS TO DISMISS-DEFECTS IN PLEADING.

dismissed for mere defects in pleading that are amendable, or which may be cured by verdict, if it appears that the court has jurisdiction and the plaintiff has stated a good cause of action. The defendant should demur, if he wishes to raise objections to such defects.

An action at common law is not to be

[Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 134, 136, 137; Dec. Dig. § 58.*]

5. DISMISSAL AND NONSUIT (§ 55*)-MOTION

TO DISMISS-STATUTORY PROCEEDINGS.

In statutory proceedings, where the jurisdiction of the court rests upon allegation and proof of statutory requirements, a motion to and the motion will lie where it appears, asdismiss may serve the purpose of a demurrer, suming the allegations to be true, that the court has no jurisdiction.

[Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. § 115; Dec. Dig. §

55.*]

6. DISMISSAL AND NONSUIT (§ 53*)-MOTIONS TO DISMISS-PROOF DEHORS THE WRIT.

A motion to dismiss does not lie when to support it or resist it proof is necessary dehors the writ.

Nonsuit, Cent. Dig. § 107; Dec. Dig. § 53.*] [Ed. Note.-For other cases, see Dismissal and 7. REPLEVIN (§ 85*)-DECLARATION-MOTION TO DISMISS-GROUNDS.

In a common-law action of replevin, a motion to dismiss does not lie when the alleged reasons for dismissal are: (1) Insufficient description of the property taken; (2) want of allegation of ownership or right of possession in the plaintiff; (3) want of allegation of demand before suit; (4) want of allegation of value, but such objections should be raised by demurrer, if raised at all, as they are mere defects in pleading which can be cured by amendment or verdict, and do not go to the jurisdiction of the court.

[Ed. Note. For other cases, see Replevin, Dec. Dig. 85.*]