The sun. [volume] (New York [N.Y.]) 1833-1916, 1910-11-28

7 4 decision nv tire supreme judicial Cou-'
OF Massar hnaetts permits Q recovery skstns
a mum" ipAl board Of health by The ovnsr
7 81 a bu'lding which waa used 40 ccn's
gioU- hospital. and IN it, opinion the cour'
lays down he rules OF wst,s ne applyins
to the cas. IN point. Waste consists Of an
Improper Use Of or omission Of duty touch
ing real estate hv one rixhtfnlly In po-
session whhh rrsl.itt In r- substantial
,nIurN. Ia the present case the Court
hoid- that the iTr-m~diible infection ~ =
/ : aiding with smallpox Rrrrns perms
/ nentIy impairing it, value for general pur
! poses. will he waste. so ~ TO render Liable
N damages tn mortgages members Of
! the board Of health Who had leased IN"
building from the mor'xakor and used Il
tor the purpose m-nt ioned
The court said ia part
The fundamental question. therefore .wa.th-r
upon The facts agreed ~ was permissible for ihs
lnry 10 ind that waste had been committed
I n'l~r 'h- ronil,ions pre- aIlinx IN the ranmon
wealth. waste Il an unreasonable rr Improper
use. abuse ml~mans cement or omission % duw
touching real estate by rightiiiy Ia possession
which RESULTS In I's substantial Injury u IL the
violation 81 an Obligation not 20 treat the prem
I~s~ In such manner tbs, harm may he done 10
them. but that the estate may revert In those hav
ing the under Ing Interest undeteTloTa tet by any
wiisul or negligent act, Waste docs not nec~~
NhFAN mean -NAFatllthn h' NVti wv
physical Substance - the estate. prrhaps " may
not AWAY. IncGudr change In phy slcsl reaiition.
but IL IL not necessary To decide that point In this
ease - early ani frequent MAS In an adr
cultural >enN- and II thee means a damax'nf
us" no. Ia accordance with good EnNnandry
The court saw that vast. generally con
.,-t- IN some d.hnit. injury. which IL shown
by reference ~ the earlier deNnHtona, ~
Blackstone ~ho describes IL n spoil or
jes' r,,ction In houses. gardens. trees and
other 'nIpureal Entertainments IL 70.
lows on principle az mere INJURY 10 me
reputation at real estate ar the s'ppOsed
tIninution of tt- value resting on whimsical
or sentimental grounds ar arising from
dictates Of custom az taste. do not conn'
tuts Waste These Conside ratiOns have
nothing Ia II" with material substance hut
depend upon ersne>"-nt or in'anRibis
preferences ar pre- iudiCes
The court continues
It's the commonly accepted view that snailpoI
Il q con tazlOIs di~easr spTrsd through the In
~ITumeniaiity Of germs which though inyi>ihl-
10 the naked eye are penieiousy active and
rapable OF causing loa thsome sud often fs,sr
sickness. In tom ~ Pear IA Mass. rsl 10
statement or the judicial notice watch the court
viii takr NJ the horrors Of sms lDoz from The
agreed facts The .ITy would have been warrsn ,e'
In finding thai this holding was hIled In every
nook aud crrVlcr With tho microscopic gerra OF
this Il t-aded disease THIS might have been found
TO constitutes material change In The qualities
and condition % the house with reference to Inc
purposes for whicn ~ was Intended IN he used
such as 10 constitute = definite injrry. Inocu.
la,ion with grtrs 81 CHAMBERS Was held 10 he .
bodily injury 10 " y Hood a sons w. MAR
land Cn.uauy Co "a Mass 80 sowing the
Seeds Of no,Ions weeds wss restrained a. waste
The court says that sowin no seeds ~
deleterious plants IL closely analogous 70
-ImpT.gnal ION Of a building with The undia-
t.rnible hat vital germs Of dAnGero
mai adv. and tho later may b~ far more
injurious y may even he more harmful
than 80 tsHr doSn or remove part OF the
huiiding rhe possibility Of tho germipa-
ton OF disease germs deposited within the
housa n question wa-or might have been
fndnd 80 h" waste unless " ia shown nv
evidence that they can 10 removed nv
physical chHng- IN the building. 80 "a 90
make u safe 'or Residence a. before.
The cOITt concludes
ease tt.r thr pr-.rn' should be submitted 70
he IHrN uudrr Instructions NhiCn would permits
th- piA.r'IV 70 rrro, ~r ne material dnnutIon Ia
the ,aII- 81 hl~ property fuT every y aiuabe use
sr"ug ordinarily Intelligent men arising from Inc
ocrHpAnry FOR n smallpox rospt,al. provided the
'uTy were ~ f-Hcd that II was not reasonable amt
to- let the briiiinx FOR Ibis purpose having
difference =. thr prObap u" effects pom - futu-s
growing Vut of the pTv>-nC- Of disease producing
,rndl'lorS IN sirw % the rsi-ilng state % the ara
~ d. infect zion n'hsr Nay ~ rendering theal7h
M snG excluding % srn'i IN Ia or fauri' a"tI,ns
A-rciirg Uui'. IL rrpu, alton.