Jamaica Pond Aqueduct Corp. v. Inhabitants of BrooklineJamaica Pond Aqueduct Corp. v. Inhabitants of Brookline
This is a petition to recover damages sustained by the petitioner by reason of the raising of the grade of Pond Avenue, a highway in the town of Brookline. The petitioner had laid, before Pond Avenue was established as a highway, and at the time of the change of grade was maintaining, a line of pipes under Pond Avenue, for the purpose of conveying water to distribute to the citizens under its charter. It contends that the change of grade made it necessary to remove and raise the pipes, to prevent their being crushed by the weight of earth above them, and that it had removed and relaid them at a large expense. The only question presented in this case is, whether the whole or any part of this expense can be recovered of the town of Brookline.
The statute provides that “ when an owner of land adjoining a highway or town way sustains damage in his property, by reason of any raising, lowering, or other act done for the purpose of repairing such way, he shall have compensation therefor.” Gen. Sts. c. 44, § 19. At common law, cities and towns were not liable for any damage caused by the change of grade or other repairs of a highway. Callender v. Marsh,