152 Mass. 307 | Mass. | 1890
The St. of 1874, c. 196, authorized the city of Boston, for the purpose of surface drainage, to remove obstructions in or over Stony Brook, in Boston, and to alter the course and deepen the channel of the brook, and, for more effectually making said improvements, to take or purchase land on either side of the channel, or any channel into which said water might be diverted; and provided that any person injured in his property by any of the acts done by the city under the statute should have compensation therefor. It also provided that the expenses incurred in making the improvement might be assessed upon the estates bordering upon the brook, as it was before or should be after the improvement, in proportion to the benefit received thereby.
The petition alleges that the petitioner had been, for more than twenty years before the year 1880, the owner of a mill
The case between these parties, reported in 149 Mass. 44, was an action of tort by this petitioner to recover damages for the acts here complained of. The court say, at page 47: “ Wo negligence is shown in the manner of performing this work. It was done under the authority of and in accordance with the statute. It was impossible to carry out the object of the statute, and prevent the danger of inundations in time of freshet, except by enlarging the culverts and making changes in the upper part of the stream, of which the natural effect would be to cause a scarcity of water in dry times. Such scarcity is incidental to the. accomplishment of the public work, and any injury caused by it is to be recovered in the manner provided by the statute, and not by a suit at law.”
The respondent contends, as set up in its demurrer, that all the acts alleged in the petition to have been done ■ by it might lawfully have been done by riparian proprietors on the stream; and that under the statute it took the right of riparian proprietors respecting the stream, and is not liable for damages occasioned by changes in the stream which such proprietors could lawfully make.
We will not stop to discuss the question whether the right
The petitioner alleges that the natural flow of Stony Brook furnished a constant and adequate supply of water throughout the year. It also alleges that the brook has been obstructed for more than twenty years, and from the earliest times, by natural obstructions and by culverts under highways and railroads. The object of the statute was to give the respondent authority to change the channel of the brook, so as to increase the flow of water in it at times of high water, and to that end to remove obstructions. There is no distinction intended between culverts and other obstructions. Both went to form the channel and banks of the stream which were to be changed, and the culverts would remain unchanged unless the other changes were made, and payment for the injury occasioned by the entire change as a whole was the condition upon which the respondent was authorized to make it. The culverts were made to conform to the natural channel of the brook, and the change in them was incidental to and a part of the change in the natural channel of the brook, and, so far as it should affect the natural channel, required legislative authority as much as any other change. The alleged