It dоes not appear that any portion of the plaintiff’s land was taken by the defendants. They took the right to construct, оperate, and forever maintain an underground main sewer, etc., in a part of Marginal Street, a public street or highwаy in the city of Chelsea. The plaintiff did not offer to prove that he owned the fee of the soil in the street where the right to construct the sewer was taken. But even if he owned the fee, it was in effect decided in Chelsea Dye House & Laundry Co. v. Commonwealth,
' The plaintiff offered to prоve that he owned and was in possession of land on said Marginal Street, with certain brick buildings standing thereon along the line of thе street; that the defendants made a contract with one Orin P. Roberts to construct the sewer opposite the plaintiff’s premises, and that Roberts constructed it according to the terms of the contract with due care; that the soil therе consisted of about three feet of gravel filling upon about ten feet of peat and silt, below which was very fine sand аnd silt, or quicksand ; that the average depth of the trench was about twenty-six feet, and the average width on top about fourteen feet, and on the bottom about twelve feet. The plaintiff also offered to prove that in this sand was a greаt deal of water.; that the trench was kept free from
Whatеver may be true of percolating waters, we think that the defendants had no right to take away the soil of the plaintiff in land whiсh they had not taken under the statutes, and that it is immaterial that the soil was removed by means of pumps from the trench into which it had fallen by its own weight, ox-had been carried by percolating water. We are unable to distinguish the case from one where the soil falls in from the surface in consequence of an excavation in the adjoining laud. The plaintiff, if the facts be as he offered to prove, has been deprived of the latex-al support to his land, in consequence of which the quicksand has run from under the surface of his land into the trench, and has beexx removed by means of pumps, and this has caused the surface to settle and crack. It was the duty of the defendants to prevent this in some manner, if they did not take the plaintiff’s lаnd.
The defendants, in the brief of their counsel, as we understand, concede that the statutes under which the right to construct the sewer in Marginal Stx-eet was acquired make xxo provision for the payment of such damages to land as the plaintiff offered to show. This seems to result from the decisions in Chelsea Dye House & Laundry Co. v. Commonwealth,
In the present case the plaintiff’s rights and the defendants’ liability must be determined by the common law. The extent of the right of a landowner in this Commonwealth to the lateral support of adjoining land was considered in Gilmore v. Driscoll,
The contention of the defendants is, that, if there is any liability, Roberts the contractor is alone liable. It is not clear that by the terms of the contract the defendants, acting through their chief engineer, did not retain such contrоl over the manner of constructing the sewer as to render themselves liable for injuries to third persons resulting therefrom, within the principle of the decision in Linnehan v. Rollins,
Justices Holmes, ICnowlton, and Lathrop are of a different opinion from that herein expressed. Apart from other differences, they think that the withdrawal of the support or barrier of soil to subterranean water is not a wrong, even if the adjoining land subsides; Popplewell v. Hodkinson, L. R. 4 Ex. 248; and that the support of quicksand which flows so freely as to be raised by a pump ought to follow that analogy. They are inclined to regard the best distinction as that between the support of liquids and the support of solids.
Exceptions sustained.