Porter v. City of Newton

133 Mass. 56 | Mass. | 1882

Field, J.

The St. of 1877, c. 100, authorized the city of Newton “ to widen, deepen and straighten the channel of Cheese Cake Brook, so called, in any portion thereof between its source and its outlet in Charles River in said city, and to drain the lands abutting thereupon and adjacent thereto.” Two orders were passed under this act, but the proceedings under these orders are not complained of here.

It seems clear from the language of the order of September 2, 1878, and from the fact that the appropriation was to be charged to the appropriation for sewerage and drainage, that this order was intended as an exercise of the power to construct sewers and drains, and not as an exercise of the power granted by the St. of 1877, e. 100. Moreover, the thing ordered to be done was not what was authorized by the St. of 1877, c. 100. The drain ordered to be constructed did not include within its limits any part of the channel of Cheese Cake Brook. The only connection that this drain had with Cheese Cake Brook was that it emptied into the brook above the lands of the petitioner'.

The evidence offered by the petitioner in reference to the manner in which the drain was constructed until it entered Cheese Cake Brook, had no tendency to show that the city in constructing it was acting or attempting to act under the St. of 1877, c. 100.

The petitioner also offered to show, by the assistant superintendent of streets of Newton, “ that in building this drain, and in order properly to construct the same, he and the men under him, without and against her consent, entered upon the land of the petitioner and removed a part of the bed of the brook,” and “that, in order to make the drain of any practical use, as directed by the city to be made, it was necessary to enter said land and to do what was done.” This offer was made for the purpose of showing that the city in constructing this drain was acting under the St. of 1877, o. 100. No offer was made to show that these things were done by the assistant superintendent of streets under the direction of the joint standing committee on highways. Section 1 of the St. of 1877, c. 100, authorizes the city of Newton, “by such agents or commissioners as the city council thereof may appoint, from time to time, to widen, deepen and straighten the channel of Cheese Cake Brook,” &c., and we infer that the orders of June 4 and September 18, 1877, were passed by the city council; and the joint standing committee on highways named in said orders we infer to have been a joint committee of the city council, who were the agents appointed by the city council pursuant to § 1. The highway committee mentioned in the order of September 2, 1878, and in the report of that committee which was accepted on December 18, 1878, we infer to have been a committee of the board of aldermen authorized by hat board to construct the drain. If the acts of the assistant superintendent of streets in removing a part of the bed of the brook, as offered to be shown, were incidental to the completion of the drain, they must be presumed, in the absence of all evidence to the contrary, to have been done either without authority, or under the same authority by which the drain was constructed; and, as has been said, no evidence was offered that any of this work was done under the direction of the joint standing committee on highways.

The petitioner also complains that a natural stream of water which flowed into Cheese Cake Brook below her land was diverted from its course and made to enter the drain, and was carried through the drain into Cheese Cake Brook above her land, whereby the water of Cheese Cake Brook passing through her land was increased in quantity. It cannot be contended that this has any tendency to show that the city, in the diversion of this watercourse into the drain, and in the construction of the drain, was acting under the St. of 1877, c. 100; and the offer to show that the city solicitor in another proceeding “ contended that it ” that is, the drain, “ was built under the St. of 1877,” was clearly not evidence that the drain was built by the city under that statute. In Central Bridge v. Lowell, 15 Gray, 106, it was the answer of the city of Lowell, signed by the mayor in behalf of the city and countersigned by the city solicitor, made in a former case between the same parties, that was admitted in evidence against the city. There was therefore no evidence on which the petition could be maintained under the St. of 1877, c. 100.

The petitioner contends that the petition may be maintained under the St. of 1869, c. Ill, or under the Gen. Sts. c. 44, §§ 19, 20. The substance of the petitioner’s complaint, apart from the evidence offered to show that the city in constructing the drain was acting under the St. of 1877, c. 100, is that the city, by the construction of the drain and the diversion into it of a natural stream of water, has increased the quantity of water in the brook flowing through her land, and has rendered the water of the brook, which was formerly pure, impure and unwholesome. The original petition to the mayor and board of aldermen of the city prayed that the amount of the damages might be assessed and paid “ according to the provisions of chapter 100 of the Acts and Resolves of the Legislature for the year 1877; ” on which petition the board of aldermen granted leave to withdraw, and the petitioner, being aggrieved, filed her petition in the Superior Court; and this petition has been so amended that it may be assumed to be in proper form for the recovery of damages, if damages are recoverable in this form of proceeding, under either the Gen. Sts. c. 44, §§ 19, 20, or under the St. of 1869, c. 111. The Superior Court had authority to allow an amendment to the petition in that court. Winchester v. County Commissioners, 114 Mass. 481.

It is contended that the petition could not be amended so as to state a different cause of action from that stated in the original petition to the mayor and aldermen of said city; but, if this be assumed, there is nothing in the original petition indicating under what statute the drain was constructed, or under what statute damages were claimed, except in the prayer at the end of the. petition, and this alone ought not to prevent the petitioner from maintaining ner petition under any statute -applicable to 'the proceedings. By the charter of the city of Newton, St. 1873, c. 326, § 24, “the city council shall have exclusive authority and power to lay out any new street or town way, and to estimate the damages any individual may sustain thereby,” and “any person dissatisfied with the decision of the city council in the estimate of damages may make complaint to the Superior Court,” &c. The St. of 1869, c. 111, § 3, provides that “ all persons or corporations suffering damage in their property, by reason of the laying, making or maintaining of any main drains or common sewers, shall have the same rights and remedies for ascertaining and recovering the amount of such damage, in the several cities, as in the case of the laying out of highways or streets -in such cities respectively,” &c. It follows, therefore, that if the petitioner intended to proceed under the St. of 1869, c. Ill, the original petition should have been addressed to the city council, and not to the mayor and board of aldermen, and that these proceedings, being in the nature of an appeal from the order of the mayor and aldermen granting the petitioner leave to withdraw her petition addressed to that board, and not to the city council, cannot be considered as proceedings under the St. of 1869, c. 111.

There is no evidence that brings these proceedings within the Gen. Sts. c. 44, §§ 19, 20.

It is unnecessary to consider whether the petitioner has any remedy against the city for the acts complained of, by an action of tort, in accordance with the decisions in Manning v. Lowell, 130 Mass. 21, Hill v. Boston, 122 Mass. 344, and Brayton v. Fall River, 113 Mass. 218.

As no error appears in the rulings of the justice before whom this cause was tried, the entry must be

Judgment on the verdict.