Boston Rolling Mills v. City of Cambridge

117 Mass. 396 | Mass. | 1875

Colt, J.

The plaintiffs in these suits have the right of free and unimpeded navigation in Broad Canal, acquired by private grant to them as owners of lots bounding thereon, and are also owners of undivided interests in common in the soil or bed of the same. See Page v. Young, 106 Mass. 313. The case finds that the right of navigation is obstructed by deposits from sewers constructed by and subject to the control of the city, which terminate at the canal and discharge their contents directly into it. It is also agreed that exhalations from these deposits cause direct, peculiar and material injury to the plaintiffs. One of these sewers was constructed by the city more than twenty years prior to the filing of the bill, and the others at a more recent date; but the obstruction and annoyance complained of did not exist to any great extent until within five years. The bill in each case charges that these acts of the city have been done to the private injury and nuisance of the plaintiffs, and without authority of law, and prays that the city may be restrained from permitting this sewage to pass on to the premises of the plaintiffs or into Broad Canal, and may be ordered to abate the nuisance and remove the accumulations complained of, and for general relief.

’ A case is thus presented where the city, in the exercise of granted powers, has neglected to take proper precautions to protect others in the enjoyment of their private rights from injurious consequences. The plaintiffs’ land and incorporeal rights in the whole of Broad Canal were not appropriated by the location of' these sewers, even if, by the true construction of the orders of location, one of them is held to • extend to the centre line of the canal. Their rights were not necessarily invaded by the original construction to the extent now complained of. As to the Hampshire Street sewer, which has been built more than twenty years, the injury complained of could not have been anticipated by the plaintiffs as the necessary result. It has become a nuisance by the enlargement of the system of drainage and the increase of population, and has been substantially developed as such only within the last five years. And the sewers more recently built cannot lawfully discharge their contents upon private property not appropriated by their location.

The right of the plaintiffs to the relief asked is upon these facts fully established by recent decisions. Haskell v. New Bedford, 108 Mass. 208, 216. Brayton v. Fall River, 113 Mass. Washburn & Moen Manuf. Co. v. Worcester, 116 Mass. 458. Emery v. Lowell, 104 Mass. 13.

There is nothing in the case to show that this right has been lost by loches on the part of the plaintiffs. The defendant has not been in any degree prejudiced by the plaintiffs’ forbearance; nor has the delay to prosecute made it any more difficult for the city to adopt suitable measures to remove or prevent the nuisance.

In determining the nature of the relief to be granted in these suits, regard will be had to existing conditions and the injury which must ensue if the plaintiffs’ rights are strictly enforced without time to make other provision for the public needs. All proper suggestions in this regard will receive attention in settling the terms of the final decree. Attorney General v. Bradford Canal, L. R. 2 Eq. 71. Decrees for the plaintiffs