O'Brien v. City of Worcester, 172 Mass. 348

172 Mass. 348 | Mass. | 1899

Morton, J.

The defendant was under no legal obligation to the plaintiffs to build or maintain a sewer in Bradley Street. It had a right to discontinue the old sewer and to build a new one, and it was not required to connect the premises of the plaintiffs with the new sewer. Under the regulations of the board of health, which are said in the defendant’s exceptions to have been duly adopted in accordance with authority conferred on the defendant by law, it belonged to the plaintiffs to do that. But in discontinuing the old sewer, the defendant was bound to proceed with due regard to the fact that the premises of the plaintiffs were connected with and drained into it, and if it failed to do so, it was liable to the plaintiffs for the damages resulting to them therefrom, unless there was contributory negligence on their part. It is well settled in this Commonwealth that towns; and cities are liable for damages caused by their negligence, or that of their servants or agents, in constructing or maintaining' sewers, though not for any damages resulting from any defect in the plan or system on which the sewers are built. Child v. Boston, 4 Allen, 41. Emery v. Lowell, 104 Mass. 13. Merrifield v. Worcester, 110 Mass. 216, 221. Bates v. Westborough, 151 Mass. 174. Allen v. Boston, 159 Mass. 324.

There was testimony tending to show that, “ some time after the new sewer was constructed, the city walled up the old sewer without the knowledge of the plaintiffs, and without notice to them,” and that the effect of this was to cause the water and sewage to set back into the cellar of the plaintiffs, and to lead to the damages and injuries complained of. The city had no right to do this without taking reasonable precautions to see that the plaintiffs were not injured thereby. The city contends that the plaintiffs knew, or ought to have known, that a new sewer was being constructed, and that they were negligent in not connecting their premises with it. These were questions of fact for the jury. If the plaintiffs knew, or by the exercise of reasonable care ought to have known, that a new sewer was being built, and that the old sewer was walled up, and negligently omitted to connect their premises with the new sewer, or failed to take such measures of prevention and precaution as ordinary prudence would have required, they cannot recover for any damages to which such negligence contributed. The defendant further contends that the sewer was walled up by its employees without its authority. But each bill of exceptions states that the sewer was walled up by the city. The defendant also insists that the plaintiffs violated the rules of the board of health in not entering the new sewer, and for that reason cannot recover. But no rule of the board of health required them, so far as appears, to enter the new sewer. When the old sewer was constructed the predecessors in title of the plaintiffs entered it, and the premises continued to be connected with it till the plaintiffs discovered, as they asserted, that it had been walled up and a new sewer had been built, when they entered the new sewer.

The remaining questions relate to damages. The court ruled that the action could be maintained, but ruled also, in effect, that the plaintiffs could only recover as damages the reasonable expense of connecting their estate with the new sewer, which was agreed to be one hundred dollars, and a verdict for the plaintiffs was rendered for that amount. We think that this was error. If the plaintiffs were entitled to recover at all, they were entitled to recover all the damages to their estate that were the natural and proximate results of the act complained of, and such as reasonably might be supposed to have been within the contemplation of the parties, if, at the time of the doing of the act, they had taken thought of the consequences likely to ensue. Swift River Co. v. Fitchburg Railroad, 169 Mass. 326. Applying the rule thus laid down, we think that the plaintiffs were entitled to recover for injury to the real estate, including loss of rents and reasonable compensation for their trouble and expense in respect to their property, unless and except to the extent to which by reasonable care and precaution they could have guarded against such injury. See French v. Connecticut River Lumber Co. 145 Mass. 261.

We do not think that the plaintiffs were entitled to recover the expense of connecting their premises with the new sewer. As already observed, it belonged to the plaintiffs to make the connection. We do not see how the fact, if it was a fact, that the defendant as against the plaintiffs may have walled up the old sewer wrongfully, relieved the plaintiffs from the expense of entering the new sewer, and cast it upon the defendant.

This is a joint action by the plaintiffs as owners of the real estate, and we do not see how they can recover in this action for injuries to their health.

The result is, that the exceptions of both parties must be sustained, and it is so ordered. Exceptions sustained.