Patton v. City of Springfield

| Mass. | Sep 15, 1868

Wells, J.

Upon the question of the proper division of the expense of constructing the Cypress Street sewer or drain, between the city and the owners of real estate within the territory supposed to be benefited thereby, the petitioners were allowed to show “ that several parties, whose lands were in the district ordered to be assessed, had each paid the city twenty-five dollars for entering the Ferry Street sewer.” The jury were also instructed that they might “ consider the revenue which the city may reasonably derive from the use of the Cypress Street sewer, by parties who may pay for draining directly into it, or into other drains connected with it, which are or may be laid pursuant to the fifteenth section of the city charter.” The Ferry Street sewer connects with the Cypress Street sewer by having its discharge into Garden Brook nearly opposite (about one foot above) the point where the Cypress Street sewer takes the water from the brook. The St. of 1863, c. 107, did not authorize the construction of drains east of the brook. The Ferry Street sewer must therefore have been constructed under the city ordinance referred to, or under the Gen. Sts. c. 48. We do not understand that the first of the instructions asked for and refused raises any question different from that which is raised by the instructions given, when applied to the consideration of connecting drains. Two questions are raised by the testimony admitted and instructions given to'the jury: First, whether “revenue which the city may reasonably derive from the use of the Cypress Street sewer, by parties who may pay for draining directly into it,” may properly be considered by the jury; and, Second, whether such revenue from parties draining into the Ferry Street or other connecting sewers may be considered.

Upon the first question, it is the opinion of the court that if the city derived or had means to derive any revenue from the use of the drain in the manner supposed, that would be properly a matter for consideration in determining what portion of the expense of the drain should be borne by the city. We are not prepared to decide that the authority to construct a drain under the St. of 1863, c. 107, is so exclusive of all other, that a city might not construct a drain in part under the authority and for the purposes defined in that act, and in part under the authority and for the purposes set forth in the Gen. Sts. c. 48. The division of the expense and the assessments upon parties benefited would be somewhat difficult and complicated, but we cannot say that it would be impracticable, or that the combination of the two purposes and plans in one drain or one system of drainage would be improper or unauthorized. But it is not necessary to decide that question in the present case. A drain constructed under the authority of the St. of 1863, c. 107, is not necessarily restricted from uses for which the city might receive pay from parties availing themselves of its advantages for the purpose of entering it with their private drains. In conducting the water from the territory or district for the benefit of which it is constructed and upon which its cost is to be in part assessed, the drain may pass through land not included in such district, but whose occupants may desire to enter it with their private drains, paying a reasonable compensation for the privilege. If by any such arrangements the city had means of indemnifying itself for a portion of the cost of the drain, we think that such a source of revenue should be taken into account in determining upon the division between the city and the owners of real estate who are to be assessed.

Upon the second question, somewhat similar considerations apply. If the Cypress Street sewer was so situated and so constructed as to answer for a trunk or main drain, to take and carry off water brought to it by other drains already constructed or likely to be required for the drainage of lands above or beyond Garden Brook, it would be reasonable that some portion of the cost of such main drain should be apportioned to the upper drains which depend upon it for their discharge. The city has an interest in such upper drains, and it may, under the Gen. Sts. c. 48, § 4, or by agreement, collect or receive compensation from landowners who enter it with their private drains, or are otherwise benefited; and the expense of their construction is lessened by the nearer outlet thus furnished for them. This relation of the upper to the lower or main drain, and the interest of the city in all its drains, especially in those constructed for other purposes and under other authority than the St. of 1863, c. 107, would warrant the jury in imposing upon the city a larger portion of the expense of the lower drain than would be imposed if the drains were not thus connected. Upon this ground and to this extent we think the testimony admitted and the instructions given in regard to the revenue from the Ferry Street sewer were proper.

The second instruction asked for and refused was clearly a proper one to have been given. The petitioners’ counsel do not contend that it is not so; but suggest that it is included in the instructions that were actually given. The instruction given was, that the objection that the lands of the petitioners were not benefited should be sustained, “ unless the jury find the land of each petitioner may receive some appreciable or substantial benefit from the sewer.” This rule was sufficiently full, accurate and guarded in one direction. But in the other direction there might arise a doubt whether this appreciable or substantial benefit was not to be considered relatively, by comparison with the cost of the improvement. To guard against this misapplication of the instruction given it was pro rer that the instruction asked for should also be given; and we think the respondents were entitled to it.

The third instruction asked for and refused may nave á double aspect. The feasibility of keeping the town brook, or Garden Brook, cleared out, so as to “ take all the water that would naturally seek an outlet through it in times of freshet,” might have a bearing upon the division of the cost of the Cypress Street sewer between the city and the landowners who had such other means of drainage through the brook. On the other hand, it would not sustain the objection of such landowners that their lands were improperly included in the territory subject to assess* ment, if there was “ likely to be surplus water from the town brook which the sewer might benefit the land by taking off in times of freshet.” The instruction should not have been given, unless with a limitation confining it to the question whether the lands of the petitioners were properly included in the district to be assessed. With such limitation, it might properly have been given; and we think the considerations above suggested in regard to the second instruction prayed for apply to this, though perhaps in a less degree.

A question is made that the respondents have no right of appeal to this court. The statute requires the proceedings to be conducted in the same manner as in case of highways. An appeal upon questions of law appearing from the record is clearly given. Gen. Sts. c. 114, § 10. Lanesborough v. County Commissioners, 22 Pick. 278.

From the foregoing considerations it results that the verdict of the jury upon the first objection, namely, that the city ought to pay more than one third of the expense of the sewer, is found upon proper evidence and under proper instructions, and therefore ought to stand. The jury are not required to determine what the proportion ought to be. The statute authorizes the city council to make a new apportionment.

Upon the objection that the lands of the petitioners are not benefited, and ought not to be included in the district to be assessed, the exceptions taken by the respondents are sustained. The question then arises, whether the verdict shall be set aside. and a new trial had of the whole ease; or only as to that part in which there was error at the former trial. The issues tried, upon the several objections of the petitioners, are clearly distinct and separate, and in no manner dependent upon each other. The considerations involved and the testimony appropriate to each are unlike. There is no general verdict embracing the several findings in one result, and no final judgment of the court thereon ; but the adjudication of the court upon the findings of the jury is merely to be certified by the clerk to the county commissioners. The authority over the verdict is given to the court in broad and general terms: “ The court shall receive it and adjudicate thereon, and may set it aside for good cause.” Gen. Sts. c. 43, § 40. Fitchburg Railroad Co. v. Eastern Railroad Co. 6 Allen, 98. In exercising the power to grant new trials, the court may impose such conditions and limitations as it shall deem reasonable and right. When the questions are so clearly separate and distinct as in this ease, it certainly is reasonable that the new trial should be limited to that in which alone there has been error at the previous trial. Kent v. Whitney, 9 Allen, 62. No practical difficulty can result from such an acceptance in part. Upon application for a new jury, the warrant will specify the issues which remain to be determined, and the return and acceptance of a new verdict will complete the proceedings. The provisions of this act are somewhat peculiar, and we are aware of no practice which will furnish a guide in conducting such legal proceedings as it may require. The course here adopted is analogous to that pursued in cases relating to highways, where several parties are joined in one warrant. Anthony v. County Commissioners, 14 Pick. 189. Lanesborough v. County Commissioners, 22 Pick. 278. Worcester v. Leicester, 16 Pick. 39. The new trial should be limited to the single question whether the petitioners are properly included in the district to be assessed.

As to that question, the verdict is to be set aside; as to all other questions, its acceptance by the superior court is affirmed; and a certificate is to be transmitted accordingly.