MacGinnis v. Marlborough-Hudson Gas Co.
108 N.E. 364
Mass.
1915
Check Treatment
De Courcy, J.

[After the foregoing statement of the case.] The easement in an existing highway permits public uses on and beneath the surface of the way of a far reaching and ever increasing character. Pipes, sewers and subways impose no additional servitude upon the land in the public street for which the owner of the fee can claim damages. Cheney v. Barker, 198 Mass. 356. Sears v. Crocker, 184 Mass. 586. Bishop v. North Adams Fire District, 167 Mass. 364. Lincoln v. Commonwealth, 164 Mass. 1. As the appropriation of the space below the surface is not an invasion of his common law rights, the abutter cannot maintain an action of tort for an injury caused thereby, unless the construe*577tian work is done negligently or improperly. A common instance of this is where the work necessarily causes surface water to flow, or underground water to percolate, upon the land of an abutter. Kennison v. Beverly, 146 Mass. 467. Barry v. Lowell, 8 Allen, 127. Flagg v. Worcester, 13 Gray, 601. Holleran v. Boston, 176 Mass. 75. And see “Ways and Waters in Massachusetts,” 28 Harv. Law Rev. 478. It is not disputed here that the municipality duly gave consent to the defendant to lay the gas pipes in Maple Street, and that the location of the trench was designated by the superintendent of streets under the terms of the vote of the board of mayor and aldermen. The defendant was thereby authorized to make use of the street under the public right. R. L. c. 110, § 76. Pierce v. Drew, 136 Mass. 75, 81. Lincoln v. Commonwealth, 164 Mass. 1, 10.

On the facts shown the defendant has violated no common law right of the plaintiff. In many instances where there is no recovery at common law the Legislature has provided indemnity for injury suffered by abutters and others. Thus compensation is recoverable under the highway statute for injury caused by surface water flowing upon an abutter’s land by reason of raising the grade of a street. R. L. c. 51, § 15. Woodbury v. Beverly, 153 Mass. 245. Under the grade crossing act (R. L. c. 111,§ 153, St. 1906, c. 463, Part I, § 37), remedy is given for acts which cause injury of a special and peculiar kind, although they are not a violation of common law rights. Hyde v. Fall River, 189 Mass. 439. A town constructing a sewer in land taken for that purpose is liable under R. L. c. 49, § 2, for draining a well on land not adjoining the land taken, although at common law the owner of land lawfully may make excavations in it and thereby drain his neighbor’s well. Trowbridge v. Brookline, 144 Mass. 139. Davis v. Spaulding, 157 Mass. 431. And under the East Boston Tunnel statute, (St. 1894, c. 548, § 34, as amended by St. 1895, c. 440, §11,) the owner of abutting land whose cellar was flooded owing to the unauthorized removal of a bulkhead was held entitled to compensation. Fifty Associates v. Boston, 201 Mass. 585. See also Peabody v. Boston, ante, 376.

R. L. c. 110, § 76, which authorizes gas light companies to open the streets for the purpose of laying pipes, with the consent in writing of the mayor and aldermen, provides that “such consent *578shall not affect the right or remedy to recover damages for an injury caused to persons or property by the acts of such corporations.” We do not undertake to pass upon the question whether this provision was designed to give the plaintiff a cause of action where none existed at common law, and to afford compensation for damage necessarily caused by work which was authorized by the statute and was executed in a reasonably proper manner. The present action is one of tort for alleged negligence. The jury specially found that the work on the trench was not done negligently; hence no case of liability at common law was made out, — even assuming that an action of tort would lie for negligent acts done in carrying out the purposes of the statute. See Wescott v. Boston, 186 Mass. 540. We cannot say that the judge was wrong in directing a verdict for the defendant; and under the terms of the report, based on the stipulation of the parties, the entry must be

Judgment for the defendant.