Hazeltine v. Edgmand

[212] The opinion of the court was delivered by Horton, C. J.: In the spring and summer of 1881, D. P. Hazeltine constructed a stone building, with a brick front and tin roof, upon his premises, in the city of Columbus, the side walls of which, from the top to the foundation, were about twenty-one feet; the length of the building one hundred and twenty feet; the foundation about three feet deep in the earth; and the walls above the foundation two feet thick; the east wall of the building being located oue inch west of the east line of his lot. In August, 1881, Hazeltine moved into his building, and opened up a hardware store. He had shelves on the inside of his east wall, where he kept spoons, scissors, knives, locks, screws, hinges, etc. In April or May, 1881, Daniel Edgmand purchased the Commercial House, a two-story frame building, about twenty feet wide, with a main part about sixty feet long, and a kitchen extending back. This building was situated upon a lot adjoining and east of Hazeltine’s premises. The building had a shingle roof, sloping east and west from the center, about one-third pitch. On the west side the roof had no eaves-trough, gutter, or other conductor for catching and carrying off the rain or water falling upon the building. At the south end, near the ground, the walls of the buildings were from five to seven inches apart. Upon the ground, at the north end, they were from twenty to thirty inches apart. The wooden building leaned to the east, and the space between the buildings gradually widened from the south to the north end, and from the ground up, so that the space between the walls of the buildings, at the top, ran from ten to thirty-three inches. The roof of the wooden building was about two feet below the top wall of the stone building. The eaves of the wooden building projected beyond the face of the walls. In the petition, it is alleged that the rain and water falling upon the roof of the wooden building was discharged and thrown against and upon the east wall of the stone building; that the rain and water penetrated through the wall and plastering, staining the wall and crack [213] ing the plastering, whereby the shelf hardware in the stone .building became damp and rusty. Upon the trial the court, over the objection of plaintiff below, charged the jury as follows: “While buildings are necessary for business and the habitation of man, and essential for all affairs and uses in business, yet the owners of them are called upon to exercise the highest degree of care to prevent their becoming a nuisance to others, and it is the duty of the owner and occupier of a building on a division line to keep gutters, or other appliances for the discharge of water from the roof of his building in proper repair and condition to cany off the water that collects thereon, and he is bound to have them of sufficient capacity to carry off the water that may fall in -storms likely to occur. And if, in this case, the defendant, (and whether he did or not is for you to determine,) from any cause that could have been prevented, and by the exercise of ordinary care, failed to carry the water from his roof, whereby the building or property of the plaintiff was damaged, as alleged in the petition, the defendant is liable for all the consequences resulting from such defects or acts, unless the same resulted from extraordinary or 'accidental circumstances.” 1. Damage for want of eaves214 2 Misleading instructions. [213] ' This instruction is unfortunate in the language employed^ and was very liable to mislead the jury. All the evidence shows that the defendant below had no gutters or other appliances to catch and carry off’ the rain or water falling on his west roof. Therefore it is clear that he did not exercise any care to prevent the water falling upon his own roof from being discharged upon the wall of plaintiff. No principle is more firmly established than that contained in the familiar maxim, “Sic utere tuo ut alienum non Icedas/” and • if the water from, the defendant’s roof fell upon plaintiff’s building on account of the neglect of defendant to have a . ( _ _ trough or gutter, or some other conductor, to the injury of plaintiff’s wall and hardware, the defendant is liable. Then again, there was no evidence in the case tending to show that any water or rain was discharged upon plaintiff’s building from extraordinary or accidental circumstances. Extraordinary and accidental circumstances are [214] sometimes construed to mean something in opposition to the act of man, as storms. In any event, the law would require the defendant to have troughs or gutters of sufficient capacity to prevent the rain or water falling upon his building in all storms likely to occur, from being discharged upon plaintiff’s building. (Bellows v. Sackett, 15 Barb. 96; Wood on Nuisances, §118.) In addition to there being no evidence tending show the circumstances referred to in the 0}jarge> without further explanation the jury would be very liable to misunderstand and misconceive the purport of the words “ extraordinary or accidental.” The paragraph commencing “And if in this case,” etc., should have: been omitted. Again, in another part of the charge, the following language was used: “ The court says to you, that a person has the right to do any act upon his own property or land, or make such erections thereon, or have buildings thereon, which do not violate the rights of his neighbor or his property; and to this extent he has full control over his premises in the erection or maintaining of his buildings already erected. He has no right to make any erections thereon and allow them to remain so near another’s land that the rain falling thereon is discharged from the eaves upon adjoining buildings or land, except upon or by express grant or permission, or else by prescription far such a length of time as furnishes a presumption of a grant so to do, which is usually for a term of years —twenty years or more for prescription, but if by permission or grant, no particular length of time is required.” There was ho evidence tending in any way to show that the defendant had the right to let the water falling on the roof of his building be discharged upon or against the plaintiff’s building by grant, permission, or prescription. All of the exceptions stated should have been left out of the charge, as they were liable to mislead and confuse the jury. As far as possible, instructions should be applicable to the evidence presented upon the trial, and we think, considering the verdict in this case, that the jury were probably misled by [215] portions of the charge which were not supported by the evidence, and in this case were wholly irrelevant. The evidence is very conflicting and contradictory as to whether the water from the defendant’s roof actually fell upon the wall or building of the plaintiff, and therefore the mischief is the greater from the instructions given, upon matters not in evidence. 7(Savings Association v. Hunt, 17 Kas. 532; Raper v. Blair, 24 id. 374; Railway Co. v. Peavey, 29 id. 169; Feineman v. Sachs, 33 id. 621; Railway Co. v. Fray, 31 id. 739.) . The judgment will be reversed, and the cause remanded for a new trial. All the Justices concurring.