154 Mass. 100 | Mass. | 1891
The St. of 1881, c. 303, § 3, by its true construction, does not authorize the city of Boston to create the nuisance to the plaintiff’s land for which he seeks to recover damages. For purposes beneficial to the water supply of Boston, the city was authorized to take such lands in Woburn or Winchester, on or near the line of a sewer, as it should deem necessary, and construct works in order to treat sewage, and free it from noxious and offensive matter and properties. The selection
It is contended by the plaintiff, that the nuisance to his land is such as to amount to a substantial taking of it; to which the defendant replies, that, if so, the plaintiff’s sole remedy is under the proceedings provided for in the statute, and not by an action at law. Without going into the vexed question of what sort of a nuisance may amount to a taking of property, it is enough for present purposes to say that here was no taking of the plaintiff’s land within the meaning of the St. of 1881, c. 303, § 3. That section only provides compensation for lands actually taken by the city, and does not include compensation for such an injury as was shown in this case. The statutory remedy, therefore, was not open to the plaintiff, and he was left to his action at law.
Fxceptions overruled.