A "motion" man in a Rockport quarry whose payments to the quarry owner are by way of "stumpage" is a licensee carrying on work on his own account on the land of the quarry owner, and is not a tenant.
If a derrick is maintained by a licensee on the land of his licensor with a guy stretched across a highway so low as to be dangerous to persons driving over the way, and the owner of the land knows of its existence and suffers it to remain there, this constitutes a nuisance, and such landowner is liable to any one injured thereby, although the derrick was erected before he became the owner of the land.
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 stretched 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 thousand 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. Robbins v. Chicago, 4 Wall. 657, 679. Black v. Christchurch Finance Co. A.C. 48. Pickard v. Smith, 10 C.B. (N.S.) 470. Hardaker v. Idle District Council, 1 Q.B. 335. Angus v. Dalton, 4 Q.B.D. 162, 184; 6 App. Cas. 740, 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 traveller 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.D. 162, 184; 6 App. Cas. 740, 829. Hardaker v. Idle District Council, 1 Q.B. 335. Robbins v. Chicago, 4 Wall. 657, 679.
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. Boston Gas Light 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 travelling on the highway by the act of a third person in attaching a telegraph wire to it and we have no doubt that an owner is bound to see to it that his land is so managed by persons brought on to 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 suggested by Littledale, J., in Laugher v. Pointer, 5 B. C. 547, 560, a case which had to do with personal property, but in which the whole subject was discussed; and that suggestion has since been quoted with approval. See Parke, B., in Quarman v. Burnett, 6 M. W. 499, and in Rapson v. Cubitt, 9 M. W. 710, 714; Cresswell, J., in Rich v. Basterfield, 4 C.B. 783; Rolfe, B., in Hobbit v. London Northwestern Railway, 4 Exch. 244, 256; Jessel, M.R., in White v. Jameson, L.R. 18 Eq. 303, 305. This principle was enforced in White v. Jameson, L.R. 18 Eq. 303; Chibnall v. Paul, 29 W.R. 536; Attorney General v. Stone, 12 Times L.R. 76. And see Thomas, J., in Hilliard v. Richardson, 3 Gray, 349, 366. Compare Gray v. Boston Gas Light Co. 114 Mass. 149, 153, and Tarry v. Ashton, 1 Q.B.D. 314, 319, as to the necessity of knowledge on the part of the landowner.
Though the defendant had no control over the manner in which the work was done on its land by "motion" men, yet if a nuisance was erected on it by a "motion" man it was not only its right, but its duty, to see that the nuisance was abated.
We assume that proper instructions were given to the jury on the preliminary question of the defendant's liability, in case the jury found that Lucas had, earlier in the day, knocked the guy rope out of the prop, which held it up above the highway, and that the instructions, which are under discussion here, were given only in case the jury found in favor of the plaintiff on that preliminary question of fact. The whole charge is not set forth in the bill of exceptions, and no question has been raised by the defendant on this point, on which the evidence was conflicting.
Under the instructions upon which the case was submitted to them, the jury must have found either that work done by "motion" men is done under the control of the owner of the quarry, or that the defendant in this case knew of the existence of the derrick, erected as it was erected; for they were instructed that unless they found that the work of "motion" men was done under the control of the owner of the quarry, they must find, to charge the defendant in this case, that the defendant contemplated that Hill would use the derrick as it was used by him when he began to work as a "motion" man. That includes a finding that the defendant knew of the existence of the derrick. The defendant cannot complain that the jury were told that they might hold the defendant liable on the ground that the work done by "motion" men is done under the landowner's control; there was no evidence on which such a finding could be made. But the defendant cannot complain of that; no objection was taken by it to that part of the charge.
Exceptions overruled.
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