Allen v. City of Boston
34 N.E. 519
Mass.
1893
Check Treatment
Allen, J.

1. The first objection now urged by the defendant is that the plaintiff’s lessor acted in violation of law in building his cellar into the highway. This objection is untenable. There is no doubt that the general easement in the public acquired by the location of a highway extends to the limits of the highway as located. Commonwealth v. King, 13 Met. 115, 119. The right of the public includes various underground uses, of which the construction of sewers is one. Boston v. Richardson, 13 Allen 146, 159, 160. But the owner of the land over which a highway is laid retains his right in the soil for all purposes which are consistent with the full enjoyment of the easement acquired by the public. Tucker v. Tower, 9 Pick, 109. Denniston v. Clark, 125 Mass. 216. This right of the owner may grow less and less as the public needs increase. But at all times he retains all that is not needed for public uses, subject, however, to municipal or police regulations. 3 Kent Com. 433 ; Dillon, Mun. Corp. (4th ed.) §§ 656 b, 699, 700. The plaintiff’s lessor, therefore, had a right to excavate under the sidewalk, if he thereby did not violate any ordinances or regulations of the city. It appears affirmatively that he did not. He interfered with no existing public use of the street. He was therefore using the land as he had a right to use it. McCarthy v. Syracuse, 46 N. Y. 194. Mairs v. Manhattan Real Estate Association, 89 N. Y. 498.

2. The defendant further contends that the plaintiff’s lessor was negligent in not building his cellar wall so as to keep out sewage. There is nothing to show that he had any knowledge *336that the sewer would leak. There was no evidence that there had been any leaking of sewage into the premises before, or that it was ever ascertained till 1880 that sewage from the old sewer percolated into the same. In the absence of knowledge that the sewer was improperly built, the plaintiff’s lessor might well assuihe that it was tight, and due care on his part did not require him to guard against a defective construction of the sewer, the existence of which he had no reason to suspect. The defendant’s request for instructions upon this subject was rightly refused; and there is no occasion to consider whether -knowledge on his part that the sewer was out of order would show negligence, under the circumstances, and debar the plaintiff from recovering for the kinds of damages complained of in this case.

3. The defendant asked the court to instruct the jury that they must find for the defendant if the only way in which the city could have prevented the injury was by removing the sewer either from the street or to some other part of the street. We are at a loss to see, on the evidence, how it could be found by the jury that there was no other way to prevent the injury than those supposed. -It would seem that a new and tight sewer might have been laid there, and all the evidence in the case so assumes. The defendant contends that the city was not at liberty to put in a new sewer, and to make it tight, because the entire jurisdiction to prescribe the manner of making it and the materials to be used in keeping it in repair was in the board of aldermen. But at no time has the board of aldermen gone so far as to prescribe in what part of the street the sewer should be laid, or how it should be built. All these matters have been left to the superintendent of sewers, who was a city officer. The city, therefore, by its officer, might put the sewer in repair in any part of the street, and might prescribe the materials for building or repairing it. The duty of keeping a sewer in repair-rested on the city. Child v. Boston, 4 Allen, 41, 51, 52. Emery v. Lowell, 104 Mass. 13, 16. Murphy v. Lowell, 124 Mass. 564. Bates v. Westborough, 151 Mass. 174, 182-184. And if it was necessary to put the sewer in another part of the street, the city through its superintendent of sewers might have done it. Having the power to put the sewer where it would, the city *337could not be excused for a negligent omission to make it safe, merely on the ground that the power to fix the location' and to prescribe a plan of construction rested with the board of aider-men, when the board of aldermen had not exercised that power. Child v. Boston, 4 Allen, 41, 53, 54. Boston Belting Co. v. Boston, 149 Mass. 44, 46, 47.

4. The fact that the plaintiff’s premises were not directly connected with the old sewer does not prevent his recovering damages sustained by him through its negligent construction or maintenance. The liability of the city to the plaintiff does not depend upon the assessment of his estate for the cost of the sewer, but upon the injury done to him by the nuisance. Stanchfield v. Newton, 142 Mass. 110, 114. Merrifield v. Worcester, 110 Mass. 216, 221. Ball v. Nye, 99 Mass. 582. McCarthy v. Syracuse, 46 N. Y. 194.

5. The defendant also argues that the only damage the plaintiff can recover, if any, would be the injury to his property ; and that injury to his health or business was wrongly allowed to be included in the damages. Such damages were specially alleged, and are clearly recoverable. Hunt v. Lowell Gas Light Co. 8 Allen, 169. French v. Connecticut River Lumber Co. 145 Mass. 261.

In the opinion of a majority of the court the entry must be,

Exceptions overruled.