Nevins v. City of Fitchburg, 174 Mass. 545

174 Mass. 545 | Mass. | 1899

Lathrop, J.

There is nothing in the bill of exceptions to - show by what authority the board of aldermen passed the vote • in this, case authorizing the laying out of' the sewer. The answer sets up that it was done under the' Public Statutes, and the defendant in its brief states inferentially that it was under the Pub. Sts. c. 50, which, by § 1, gives to the mayor and aider-men of a city the right to lay, make, and maintain such main drains or common sewers as they adjudge to be necessary for ■the public convenience, or the public health, through the lands of any persons or corporations. Assuming that the vote was .passed by the board of aldermen under this statute, the defendant concedes that if a board of public officers should decree that a sewer should be so constructed that it would discharge upon private lands, a remedy by injunction or otherwise could be afforded, because the act done or to be done would be without the jurisdiction of the board, and would in effect be the taking of private property for public uses without proper condemnatory proceedings.

We think that this concession was properly made. Thus in Hill v. Boston, 122 Mass. 344, 358, it was said by Chief Justice Gray: “ So if a city, by its agents, without authority of law, makes or empties a common sewer upon the property of another to his injury, it is liable to him in an action of tort,” citing among other cases Proprietors of Locks & Canals v. Lowell, 7 Gray, 223, and Haskell v. New Bedford, 108 Mass. 208.

In Proprietors of Locks & Canals v. Lowell, it was held that a canal corporation could maintain an action of tort against a city for laying down sewers and drains through lands purchased by the corporation for the use of their canal, and emptying into the canal, although the city was authorized by its charter, “ to cause drains and common sewers to be laid down through any streets or private lands,” and though the canal was constructed in -the channel of an ancient watercourse. See also Boston Rolling Mills v. Cambridge, 117 Mass. 396.

So, too, if 'a 'séwer is legally laid out and constructed by a city, but is maintained in such a manner as to create a private nuisance, an action at law may be maintained against the city by the persons injured. Haskell v. New Bedford, 108 Mass. 208. Brayton v. Fall River, 113 Mass. 218.

It has also been held that if a city by a system of drains artificially diverts surface water from its natural course, and accumulates it upon the plaintiff’s land in such quantities as to create a private nuisance, it is liable to an action. Brayton v. Fall River, 113 Mass. 218, 226. Manning v. Lowell, 130 Mass. 21, 25. Bates v. Westborough, 151 Mass. 174, 182.

In the case at bar, the plaintiff owned the land on each side of the Bemis Road, and presumably owned the fee of the road. The tail-race ran under the road by means of a culvert, and was on the plaintiff’s land. This condition of things existed prior to 1845. The culvert had never been interfered with by the defendant or by the town of Lunenburg, in whose municipal limits it once was. We need not consider what would have been the rights of the plaintiff, if the city had seen fit to extend its sewer so as to injure the plaintiff’s rights in the tail-race, as nothing of this sort was attempted. The order ends the sewer at the raceway. So long as the city did not lay a sewer across the tail-race-, the plaintiff had a right to the use of the land under the way (Allen v. Boston, 159 Mass. 324, 335) ; even if it had not acquired a prescriptive right so to use it, the defendant had no right to have its sewer end on the plaintiff’s land, and pour the sewage thereon. The order, therefore, was of no effect, and the judge rightly ruled that the action could be maintained.

- Judgment affirmed.