(dissenting). I think the final disposition of this case should not depend upon the fact that the plaintiff, when injured, was on an area owned by the defendant, adjacent to the public sidewalk, rather than on the sidewalk, or upon the holding that the finding below of no negligence is decisive.
1. If the injury had occurred on the public way, the judge’s rulings would have had support in our decisions. See Lamereaux v. Tula, 312 Mass. 359, 362 (“The plaintiff was not required to prove negligence upon the part of the defendants in order to prevail upon a count for nuisance”).
The texts which the opinion cites show that such a rule cannot be based on the concept that a count for nuisance for so maintaining a roof as to create a danger on a public way is in effect the old common law action for a nuisance and hence one which entails old common law rules of liability. There was such an action only for a private nuisance; under it the possessor of land whose interest was thereby invaded was allowed to recover incidental damages for harm *299to his person or property and, as in all other early tort actions, the actor in the early law was liable regardless of fault. Restatement: Torts, c. 40, Scope and Introductory Note, pp. 215-216. Although the concept of strict liability persisted longer in actions for a private nuisance, this was without justification, and liability in such an action, as in all other tort cases, should turn on whether the “interferences . . . are intentional and unreasonable, or result from negligent, reckless, or ultrahazardous conduct.” Ibid., p. 221. It follows that no principle of strict liability is made relevant by calling the dangerous roof adjacent to the public way a public nuisance, as our decisions have done, thereby extending the concept beyond that usually stated. See majority opinion and Restatement: Torts, c. 40, Scope and Introductory Note, pp. 216-217.
The first opinion in the leading case establishing liability for a dangerous roof over a public way, Shipley v. Fifty Associates, 101 Mass. 251, 253, reasonably sets out the analogy of its facts to incidental harm caused by a private nuisance. “If one . . . [by a roof spout] throws . . . [water] upon his neighbor’s land, an action lies. ... If one’s real estate is thus protected, certainly his person must be equally protected. If the water may not be thrown upon his land, it may not be thrown upon his head while he is standing on bis land. A traveller in the use of a highway is as much entitled to protection as if he were the owner in fee simple.”
There is, of course, on the facts, no more ground for an action for a private nuisance than in cases strictly in the Shipley line. But the argument by analogy which underlies the Shipley case is applicable and is, I submit, controlling. Whatever rights the traveller has because, as that case said, he should be as protected as would be a landowner on his invaded land, should be the rights of the invitee where he is subjected to the effects of water poured from the roof of an abutter; even more clearly so where the water is poured from the roof of his invitor. Nothing in reason can let recovery turn on whether the plaintiff had passed from the *300public way onto the storekeeper’s adjacent paved area differentiated from it only by “a ridge three to five inches high made of the same black top material.” The case of United Elec. Light Co. v. Deliso Constr. Co. Inc. 315 Mass. 313, 319, 321, although distinguishable, as the opinion notes, speaks for the analogy. The defendant, building a tunnel, so forced grout under high pressure that it permeated manholes and conduits of the plaintiff. This property of the plaintiff “remained personal property as against the abutter and the public” but we held that the “defendant had no more right to. injure this underground system because it was personal property than it would have if it had become a part of the realty.” We termed it a private nuisance, and allowed recovery in nuisance on the ground that, even though the plaintiff had no interest in the land affected, “anyone who has been injured by a private nuisance is entitled to recover for the damage resulting to him.”
I agree with Mr. Justice Cutter that, probably, on correct analysis, none of our roof cases shows liability without fault.1 But whatever the rule is, it should be applied to the facts before us. To do so, I submit, would be to apply rather than, as the opinion states, “to extend the doctrine” of the *301decided cases. Therefore, I think the rulings below should not be held erroneous without first determining whether the theory is valid which the opinion assumes is “stated in cases like Shipley.”
2. Findings below warrant, if they do not require, the conclusion that the defendant in maintaining its building was acting affirmatively and unreasonably and in disregard of its duty to its invitees. The judge found that the control of the property had been in the defendant for several years, actively exercised in its behalf by the son and daughter of the builder; they made all repairs and improvements and did whatever was necessary “to keep . . . the premises maintained.” The “drain as described . . . and the construction of the eaves trough, drain and splash pan . . . channeled water and melting snow and ice into the areaway designed for customers’ use.” “The course this fanlike run off would take . . . would depend somewhat on conditions;
. . . [because of land slope it would flow southerly, but] if snow was piled up by shoveling or plowing operations against the building or by accumulations of ice resulting from the drippings from icicles from the eaves trough, it would flow ... in a more easterly direction toward the sidewalk. Since rain and melting snow were channeled from the drain to the customers’ areaway, it would be reasonable to expect that the person in control of the building would anticipate the varied courses the run off would take over the areaway according to weather conditions or snow removal operations.” “On Saturday . . . there was a heavy fall of snow .... The officers of the corporate defendant . . . had an independent contractor plow away the snow ... on Sunday morning .... He piled [the] snow against the . . . building .... This was a normal and expected operation.” Snow melted Sunday, and froze Sunday night. “[On] Monday morning . . . the run off water from the drain on the areaway had frozen into ice” (emphasis supplied). It appears probable that the judge intended to find not that in this conduct the defendant was without fault but only that there was no negligence in the upkeep of the roof or in failing to remove, or *302place sand on, the ice on the pavement. Indeed ruling No. 1 states the principles of liability for unreasonable affirmative conduct and appears to have been given because applicable to the facts. It rules correctly, apart from the reference to nuisance, that “[w]here a defendant in control of premises, collects water into a definite channel in any manner and pours it upon an areaway designed for the use of business invitees whereby, through the operation of natural causes, ice there forms, [it is the efficient cause in the creation of a nuisance and] he is liable for whatever damages result as a probable consequence” (brackets added). The conclusion of “nuisance” is unnecessary for no doctrine of liability without fault need be resorted to on the facts recognized in the ruling and found by the judge. The probability that the judge in his finding of no negligence was referring only to “specific negligence” (Bullard v. Mattoon, 297 Mass. 182, 187) is enhanced by the context in which it was first made. The judge said, “In this case, the areaway had been plowed out and cleared the day before. A flurry of light snow had fallen within a half hour before the accident to the plaintiff and covered the patches of ice. Under the circumstances it cannot quite be found that there was negligence on the part of . . . [the defendant corporation]” (emphasis supplied). Language in some of the cases tends to give support to the concept, which the opinion rightly rejects, that fault in maintaining a dangerous roof is a different tort from negligence. See Lamereaux v. Tula, 312 Mass. 359, 361-362.2 The opinion establishes that a finding of no negligence, in the full scope of the word, is of critical relevance in this and like actions. See Smethurst v. Barton Square Independent Congregational Church, 148 Mass. 261, 265. But the issue now is the meaning of the finding below in its context and in the light of the decisions.
*303In the circumstances there is, I think, adequate ground to overrule the exceptions. But there may be a question of the legal effect of the findings in respect of negligence, whatever the intent, in which case I think our disposition should be merely “exceptions sustained,” thus allowing a retrial.
I think the conclusion that the plaintiff was an invitee was warranted on the facts found.
The only basis for the principle would appear to be extrahazardous conduct, and we have carefully restricted this doctrine to exclude such cases as these. See United Elec. Light Co. v. Deliso Constr. Co. Inc. 315 Mass. 313, 321-322. The early roof cases plainly did not state a rule of liability without fault, and I think later statements which do so, or appear to do so, should be disregarded. For early statements see Shipley v. Fifty Associates, 106 Mass. 194, 199 (“He has no right so to construct his building that it will inevitably . . . subject his neighbor to that kind of inconvenience; and no other proof of negligence on his part is needed”); Smethurst v. Barton Square Independent Congregational Church, 148 Mass. 261, 265 (“It is well settled . . . that one who violates a duty ... to others, or commits a tortious or wrongfully negligent act, is liable . . .”). Accord Bullard v. Mattoon, 297 Mass. 182, 187 (“not obliged to prove specific negligence in the construction or maintenance of the owner’s building. The duty of the owner is, not to erect or maintain his building so that it creates a dangerous area of ice upon the street”). In Leahan v. Cochran, 178 Mass. 566, 570, cited for strict liability, the court said, “The defendant as owner must have known this or must be presumed to have known it.” In Fuller v. Andrew, 230 Mass. 139, 146, there was a true public nuisance, in the maintenance of a wharf without a license, but query if the opinion states liability without any fault. The present rule as to incidental damage from a true private nuisance excludes liability without fault. Maynard v. Carey Constr. Co. 302 Mass. 530, 533. See United Elec. Light Co. v. Deliso Constr. Co. Inc. 315 Mass. 313, 321 (unreasonable affirmative action).
The blasting cases may be thought to support the distinction. There is an analogy between gathering and discharging the water so as to hurt others and the unreasonable affirmative conduct of blasting where there is risk of throwing debris and hitting others or their property. Though we say there is liability “regardless of negligence,” Hakkila v. Old Colony Broken Stone & Concrete Co. 264 Mass. 447, 452, it is not, semble, liability without fault.