Nuisance. Ice and Snow. Easement, By prescription. In an action by a woman for injuries from falling on ridges of ice on a highway caused by the freezing of water accumulated by a retaining wall and grading on land of the defendant alleged to be a nuisance, if it appears that the plaintiff was walking on a cross walk of a public highway at a reasonably slow pace, that she was looking ahead as she walked, that she had no reason to expect one side of the street to be more dangerous than the other and that she wore rubbers, and she testifies that on account of her physical condition at the time she was taking greater care than she otherwise would have done, the fact that she could see ice at the place where she fell as well as on other sidewalks in that vicinity is not conclusive against her, and she is entitled to go to the jury on the question of her due care.
A landowner has no right to maintain a retaining wall and a grading of his land which cause surface water to collect and to overflow upon a highway so as to create a nuisance by a dangerous accumulation of ice, and if he does so he is liable to a traveller on the highway who in the exercise of due care is injured by a fall caused by such accumulation.
If a landowner maintains a retaining wall and a grading of his land which cause surface water to collect and to overflow upon a sidewalk and a cross walk of a highway creating a dangerous accumulation of ice there, he is none the less liable for an injury caused by such nuisance because when he acquired the land the retaining wall and the grading already were upon it and both the wall and the surface of the ground have remained without change for fifty years.
A landowner cannot acquire by prescription a right to maintain a public nuisance.
SHELDON, J.
Although many other questions were raised by the defendant's exceptions, his counsel have insisted upon only three contentions: That on all the evidence the plaintiff was not entitled to recover; that the judge at the trial should have given the seventh instruction asked for; and that the judge erred in that part of the charge relating to the contribution of water from the defendant's premises to the formation of ice on the cross walk where the plaintiff fell. We will consider these points in their order.
1. The jury had a right to find that the plaintiff was in the exercise of due care. There was evidence that she was walking at a reasonably slow pace, in a place where she had a right to be. She was looking ahead as she walked. She had no reason to expect one side of the street to be more dangerous than the other. She wore rubbers. She testified that she was taking greater care by reason of her condition at that time. Shipley v. Proctor, 177 Mass. 498. The fact that she could see ice at this place as well as on other sidewalks in that vicinity cannot be conclusive against her. Smith v. Lowell, 6 Allen, 39. Bennett v. Everett, 191 Mass. 364.
The jury could find on the evidence that the effect of the defendant's intestate maintaining the retaining wall along Green Street in connection with the grading of her estate in that vicinity had been to alter materially the natural drainage of the land and to collect the surface water and that coming from rain and melted snow into an artificial pool, gathered and retained by the slope of her ground as graded and the water-tight structure of the wall, which, when sufficiently accumulated, would overflow in a considerable stream across the walk where the plaintiff fell; that this had happened shortly before the accident, and had resulted in a large accumulation of ice sloping from the junction of the fence and wall downward and outward to the street, this ice being about six inches thick at the thickest portion near the fence and wall, and being formed of ridges about a quarter of an inch thick, in successive layers. This would bring the case within the general rule that a landowner cannot, without being liable therefor, erect such buildings or structures upon his own land as will create a public nuisance in a highway. He has not the right to collect surface water into an artificial channel and thus to discharge it upon the highway. Cavanagh v. Block, 192 Mass. 63. Shipley v. Proctor, 177 Mass. 498. Rathke v. Gardner, 134 Mass. 14, 17. Smith v. Faxon, 156 Mass. 589. Fitzpatrick v. Welch, 174 Mass. 486.
Nor is it material here that this retaining wall was not built or the grading of the adjacent land done by the defendant's intestate. The liability is for maintaining the structures which bring about a public nuisance, and is the same whether she herself had them built, or received the property while they were standing upon it. Leahan v. Cochran, 178 Mass. 566. The fact that they have been maintained without change for fifty years gives no immunity. The right to maintain such a nuisance cannot be gained by prescription. Hammond, J. in Leahan v. Cochran, ubi supra, referring to Holyoke v. Hadley Co. 174 Mass. 424, 426, and New Salem v. Eagle Mill Co. 138 Mass. 8.
Accordingly a verdict could not have been ordered for the defendant.
2. It follows from what has been said that the defendant's seventh request could not have been given. It ignored the rule that a landowner has not the right to collect surface water artificially into a definite channel and so to discharge it upon lower land to its injury, or upon a highway, in such manner as to create a public nuisance. It is not necessary further to discuss this point. See Daley v. Watertown, 192 Mass. 116.
3. The instructions complained of were carefully guarded, and sufficiently protected the defendant's rights. It plainly appears, from so much as is stated of the charge, that the jury must have found that the defendant's intestate, by the structures which she maintained upon her land, caused a substantially larger volume of water to be accumulated and discharged, and thereby contributed to form ice upon the cross walk so as to increase substantially the amount of such ice. And it is to be noted that the bill of exceptions, though setting out all the material evidence, contains no direct evidence that any of the water which formed this ice came from any other source than that alleged by the plaintiff. However this may be, it is enough if the structures maintained by the defendant's intestate resulted in artificially collecting a body of water which discharged upon the street, and thereby caused the formation of a dangerous mass of ice. Bates v. Westborough, 151 Mass. 174, 181. Curtis v. Eastern Railroad, 98 Mass. 428, 431. Accordingly the instructions given are not open to criticism. See Jackman v. Arlington Mills, 137 Mass. 277, 284.
Exceptions overruled.