Ball v. Nye

99 Mass. 582

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1868
• Status: Published

Opinion

Foster, J.

To suffer filthy water from a vault to percolate or filter through the soil into the land of a contiguous proprietor, to the injury of his well and cellar, where it is done habitually and within the knowledge of the party who maintains the vault, whether it passes above ground or below, is of itself an actionable tort. Under such circumstances the reasonable precaution which the law requires is, effectually to exclude the filth from the neighbor’s land; and not to do so is of itself negligence. In the present instance, there was no pretence of a sudden and unavoidable accident which could not have been foreseen or guarded against by due care. The percolations appear to have been constant, and their existence to have been known to the defendant. The instructions asked for by his counsel were liable to mislead the jury, and those given were exactly accurate and appropriate to the case. Baird v. Williamson, 15 C. B. (N. S.) 376. Rylands v. Fletcher, Law Rep. 3 H. L. 330.

Exceptions overruled.