Cavanagh v. City of Boston

139 Mass. 426 | Mass. | 1885

C. Allen, J.

The difficulty with the plaintiffs’ case is, that neither the board of health nor the city government had any authority to abate the nuisance in the manner which was adopted. That manner was by the erection of a dam, the easterly portion of which was built across the flats and upon the upland of the plaintiffs, for the purpose of raising the water so as to flow over other flats away from the flats of the plaintiffs ; the plaintiffs’ evidence tending to show that no nuisance existed on their own flats. This was an occupation of the plaintiffs’ land which the city had no power to make, without the plaintiffs’ consent. No statute conferred the power of appropriating the plaintiffs’ property for public uses, nor provided compensation to them for damages sustained by such appropriation. When the preservation of the public health has been thought to require such acts as the filling of land, or raising its grade, over a considerable extent of territory, or the covering of land with water, or the removal of dams from streams, in order to allow better drainage or to prevent the accumulation of offensive materials, it has been usual to pass statutes giving the requisite authority, and making due provision for the protection of the property of individuals. Instances of such legislation may be found in the St. of 1867, c. 308, authorizing the city of Boston to take certain lands in the Church Street district, so called, which was before this court for consideration in Dingley v. Boston, 100 Mass. 544, and in Cobb v. Boston, 109 Mass. 438, and 112 Mass. 181; in the St. of 1869, c. 378, authorizing the county commissioners of Middlesex county to remove all dams on certain streams, for the purpose of securing proper drainage in certain towns, which was under consideration in Phillips v. County Commissioners, 122 Mass. 258, and in Phillips v. Middlesex, 127 Mass. 262; in the St. of 1872, c. 299, where the cities of Cambridge and Somerville were authorized to raise certain low lands to a proper level, which was before the court in Cambridge v. Munroe, 126 Mass. 496, Bancroft v. Cambridge, 126 Mass. 438, and Read v. Cambridge, 126 Mass. 427; and in the St. of 1873, c. 340, providing for the filling of lands in the Northampton Street district, so called, in Boston, which was considered in Farnsworth v. Boston, 121 Mass. 173.

The general power vested in boards of health and in city governments is not adequate to dealing with such cases, if it is impossible to come to an agreement with the owners of property to be affected. There is no general statute vesting in these bodies the right of eminent domain, or making provision for the compensation of persons whose property may be taken. The general phrases contained in the city ordinances, which have been referred to, authorizing the city council to exercise the powers vested in them for the preservation of the public health in any manner which they may prescribe, cannot be held' to give them authority to take private property for public uses. No such power existed in the body which enacted the city ordinances. In the present case, the acts of which the plaintiffs complain amount to an occupation of their land for the purpose of building a dam thereon in such a manner that clearly it was an appropriation of the land to a public use. It was not a mere transient entry and occupation, though the dam was styled temporary ; but there was a substantial and practically exclusive occupation of a portion of the plaintiffs’ land. Such an act was clearly illegal. It does not fall within the principle upon which a brief or momentary occupation of private lands is sometimes justified through necessity, as, for example, for the purpose of making an arrest, or of the perambulation of the boundaries of towns by the selectmen, or of ascertaining boundaries for public purposes. Winslow v. Gifford, 6 Cush. 327.

The present case is a much stronger one than Brigham v. Edmands, 7 Gray, 359, where a verdict was sustained against the commander of a division of the militia, as a trespasser, for holding the annual encampment provided for by law upon private lands, without the owner’s consent. See also Baker v. Boston, 12 Pick. 184, 194. No doubt the plaintiffs might have obtained an injunction to restrain the prosecution of the work, if they had sought their remedy in that form. Boston Water Power Co. v. Boston & Worcester Railroad, 16 Pick. 512, 525.

The acts done having been beyond the authority and power of the city to do, the city cannot be held responsible in damages for what was done under the supposed authority of illegal and void votes. Spring v. Hyde Park, 137 Mass. 554. Lemon v. Newton, 134 Mass. 476. Cushing v. Bedford, 125 Mass. 526. But the liability, if any, rests upon the individuals who performed those acts, as in Brigham v. Edmands, ubi supra.

The plaintiffs seek to avoid this result by urging that a part of the damage came from the negligent construction of the dam. But since it was an illegal act to build it at all, it is not apparent how negligence in the trespassers can entail a responsibility on the city. Exceptions overruled.