Clark v. City of Worcester

125 Mass. 226 | Mass. | 1878

Colt, J.

The city of Worcester, by the St. of 1867, e. 106, was authorized to alter and deepen the channels of several brooks, whose names are given; to enclose them in walls, and to cover them so far as might be adjudged necessary for purposes of sewerage, drainage and the public health. The right to take land and water rights was given, subject to the payment of damages, to be assessed in the same manner and upon the same principles as damages are assessed in the laying out of highways. Under this authority, Mill Brook, where it passed through the petitioner’s land, was laid out as a main drain and common sewer. Its channel was widened, deepened, enclosed in walls, and covered with substantial stone masonry. The petitioner claimed damages for this taking.

At the trial before the jury the city contended that the building of the sewer had increased the value of the petitioner’s land taken; that the petitioner had the right to use the land within the location for all purposes, including building purposes, subject only to the right of the city to enter for repairs, to reconstruct, or to make such changes as it saw fit; and was permitted, against the petitioner’s objection, to introduce evidence tending to show increased value in the land on account of these rights. The petitioner on this point asked the judge to rule that by the taking of the land the city acquired a right of way over it, and a right to keep it free from structures. But the judge, refusing this, instructed the jury that the city acquired the right to construct and maintain a sewer within the location, with the right to enter upon it, make repairs, reconstruct, and make such changes in the sewer as it saw fit; and that, subject to these rights, the petitioner remained the owner of the land, and had the right to use it in any manner he saw fit.

We are of opinion that the ruling requested was properly refused ; that the instruction given was correct and sufficient for the requirements of the case; and that with this instruction, and as necessarily controlled by it, the evidence objected to was properly admitted.

The authority given to the city was to take and appropriate so much of the petitioner’s estate as should be adjudged necessary to carry out the purposes of the act. The Legislature did not undertake to define more particularly the nature of the estate required to be taken, or the quantity of the land to be used. The right to take is limited by the public exigency stated; beyond that, the power to exercise the right of eminent domain is not given. The statute is to be strictly construed in this respect. The same terms are used which are employed in the statutes giving authority to take land, to railroad and turnpike corporations, and the same rules of interpretation govern. Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 1 Thacher v. Dartmouth Bridge, 18 Pick. 501.

The power to take land for the purpose stated does not confer the right to take an absolute estate in fee simple, because such an estate is not necessary to the enjoyment of the defined privilege any more than it would be necessary where land is taken for a highway, railroad or turnpike. The use only of the petitioner’s land was taken, and that use is limited to the purposes named. The rule is applicable, which defines the rights of the owner of an easement in the land of another, by determining what is reasonably necessary for the enjoyment of that easement. For all purposes consistent with that enjoyment, the right to use the land remains in the owner of the fee. Atkins v. Bordman, 2 Met. 457, 467. Perley v. Chandler, 6 Mass. 454. Adams v. Emerson, 6 Pick. 57. Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 104 Mass. 1, 11. Thus, if the easement is a public or private right of way over the surface of the land, the rule forbids the erection of anything which obstructs that right. If it is a right to construct and maintain an underground drain, sewer or aqueduct, then the landowner may well use and cultivate the surface of his land, erect fences and perhaps other structures thereon, without any invasion of the rights of the owner of the easement. It is a question which must be submitted to the jury, unless the invasion of the right complained of is so manifest as to leave no question of fact for their consideration.

In this case, it could not be properly ruled in favor of the petitioner, that the city, as matter of law, had a right of way generally over the location in question, or a right to keep it free from all structures. Nor could it be properly ruled, in favor of the city, that the petitioner had the right to erect structures of any description. The use which he might make of the surface of his land is largely a question of fact; it depends on the size and strength of the sewer, the depth of its location, the character and size of the stream of water flowing through it. And, under the instructions given, the question, as bearing on the damages to be assessed, was properly left to the jury.

Upon the question of the benefits which were to be set off against the claim for damages, the judge ruled that they must be direct, peculiar and special benefits derived by the petitioner’s estate from the sewer, and not the general benefits acquired by this estate with other estates adjoining. By the act under which the sewer was located, the damages were to be assessed in the same way as in the laying out of highways. Section 4 of that act also provides that estates benefited by the sewer shall be assessed a proportionate share of the expenditure of the city-for drains and sewers. Under this section, the petitioner had duly paid his assessment, and contended that the benefit, which he insisted included drainage of this land, having been thus paid for, could not be set off in this proceeding. But the assessment under § 4 is an assessment, upon the several classes of estates, of a proportionate share of the expenditure of the city for drains and sewers, and not an assessment for the particular benefit, derived by any estate from any particular sewer. It is not based upon the peculiar and special benefits of each estate. Butler v. Worcester, 112 Mass. 541. Workman v. Worcester, 118 Mass. 168. Sexton v. North Bridgewater, 116 Mass. 200.

It is the intention of the statute that a landowner shall only receive such damages as he is entitled to, after deducting special benefits, and shall be liable to be assessed in common with other estates of the same class for his just and proportionate share of the whole expense for sewers and drains.

Exceptions overruled.