Ranlett v. City of Lowell

126 Mass. 431 | Mass. | 1879

Ames, J.

The sewer in question was constructed by the city of Lowell, under its lawful authority, not only for the proper drainage of the street, but also to furnish the means or opportunity for the drainage of the adjoining houses and building lots. It was the property of the city, and the city was bound to maintain and keep it in repair. Child v. Boston, 4 Allen, 41. St. 1869, c. 111. The owners of the adjoining estates were assessed for the reason that those estates were benefited and made more valuable by being furnished with the means or opportunity of securing suitable drainage. But, according to the ordinance of the city, the landowner, in order to connect his own private drain with the main sewer, was required to obtain the written consent of the mayor and aldermen, to pay his assessment, and, in the materials and construction of his drain, to comply with the directions and conditions that the mayor and aldermen might prescribe. We see nothing unreasonable or contrary to the general policy of the law in any of the provisions of this ordinance. It is obvious that the obligation of the city to keep the sewer in' repair might be rendered greatly more burdensome, perhaps even impossible of fulfilment, if the adjoining landholders were allowed to construct their connecting sewers or drains, each according to his own notions of convenience and economy, both as to materials and mode of construction. It must be supposed that the purpose of the ordinance was to make it reasonably certain that such connections should be made upon some system intended for uniformity and permanence, or at least under the supervision of the proper city officers.

As this case is presented to us, there was no evidence that the former owner of the land now occupied by the plaintiffs ever obtained the written consent of the mayor and aldermen, or any consent of the city or any of its officers, to enter the sewer with his private drain, nor did it appear that the defendant or any of its officers knew of its existence. So far, therefore, from having a right in the main sewer, he was a mere trespasser, to whom the defendant owed no duty whatever. As the plaintiffs derive their title from him, they have no right of action for the cause alleged in their declaration.

Exceptions overruled.