Commonwealth v. Abbott

160 Mass. 282 | Mass. | 1894

Holmes, J.

This is a complaint against the defendant under St. 1890, c. 132, for maintaining a building not connected with a public sewer, although required to connect it by the board of health. The constitutionality of the act now is admitted; Commonwealth v. Roberts, 155 Mass. 281. The commission of the offence also is admitted, subject only to the question whether the sewer was a public sewer.

The city council attempted to lay out the sewer under the authority conferred upon it by the charter. St. 1850, c. 184, § 15. If the charter was repealed by St. 1869, c. Ill, Pub. Sts. c. 50, §§ 1-3, it is not argued that the order of the mayor and aldermen was invalidated by the assent of the common council. Woodbridge v. Mayor, &c. of Cambridge, 114 Mass. 483, 485.

The form of the order was as follows: “ Ordered, that the committee on drainage be and hereby is instructed to extend Section 3 of the Eastern Intercepting Sewer from its present terminus through Chatham and New Chatham Streets to West-era Avenue.” It is suggested, without being pressed, that this order is void for indefiniteness. But no set form of words is required. Both ends of the sewer and the streets through which it is to run are fixed, and a present intention to establish the sewer is expressed. This is enough. Bennett v. New Bedford, 110 Mass. 433, 437. Carr v. Dooley, 122 Mass. 255, 257. Sheehan v. Fitchburg, 131 Mass. 523. It is argued with more confidence, that there should have been an express adjudication that the sewer was necessary for the public convenience or the public health. By Pub. Sts. c. 50, § 1, the authority conferred is to lay such drains “ as they adjudge to be necessary,” etc. But it was assumed in the last two cases cited that a sewer might be laid out without an express adjudication of necessity. In Woodbridge v. Mayor, &c. of Cambridge, also, the papers disclose no such adjudication. “ This necessity is sufficiently implied in their action on the subject; inasmuch as they can act only in such a case.” Townsend v. Hoyle, 20 Conn. 1, 8. Mr. Dillon adds the weight of his opinion to the same view. Dillon, Mun. Corp. (4th ed.) § 601. Wellesley v. Washburn, 156 Mass. 359, 360. See Hildreth v. Lowell, 11 Gray, 345, 352, 353; Jones v. Andover, 9 Pick. 146, 154.

The sewer is laid through private land, below the point where it passes the defendant’s house, without other authority than the statute and the landowners’ unrecorded waiver under seal of damages for the construction or maintenance of a sewer through and in their land. It is suggested that enough has not been done to make this part of the sewer lawful, and that the defendant, if he connects with it, may find himself incurring liability for trespass. But, without considering other questions, the charter and the Public Statutes both give a right to lay the sewer through private lands, paying the owners their damages, and the waiver, as it is called, disposes of the claim for damages. We do not see what more is to be done, or how it is material that the release of damages is not recorded. See Isele v. Schwamb, 131 Mass. 337, 339; Grover v. Flye, 5 Allen, 543. The sewer also is laid through the defendant’s land at a place above his house, and the defendant neither has licensed it nor has been paid for it. But even if this made the laying of that portion of the sewer wrongful, it would not make the whole lay-out void. We hardly need to say that the failure to keep the plan in the city clerk’s office (Pub. Sts. c. 50, § 14) has no bearing on these proceedings.

We have dealt with the defendant’s arguments and objections in detail, but the short answer to most of them is that they are not open in this proceeding, but can be taken only by certiorari. Brewer v. Boston, Clinton, & Fitchburg Railroad, 113 Mass. 52, 56, 57. Old Colony Railroad v. Fall River, 147 Mass. 455. Taft v. Commonwealth, 158 Mass. 526, 551.

Judgment on the verdict.