Stevens v. City of Worcester, 196 Mass. 45

196 Mass. 45 | Mass. | 1907

Knowlton, C. J.

These are two actions of tort to recover damages for the diversion of water from the plaintiff’s mill. Acting under St. 1867, c. 106, which authorized the city council of Worcester to fix the boundaries of Mill Brook and other streams, and to alter, change, widen, straighten and deepen its channels, to appropriate and cover, pave and enclose them in retaining walls, so far as they should judge necessary for the purposes of sewerage, drainage and the public health, and to take and hold, by purchase or otherwise, lands, water rights, dams or other real estate, the city, at different times, has made changes in Mill Brook, and has appropriated different parts of it to use as a sewer, until now, from a point considerably northward of the centre of the city to the point where it flows into the Blackstone River, the whole stream is appropriated to this use.

The plaintiff owns a mill on the westerly bank of the Blackstone River, below the place where Mill Brook flows in, and, for a long time prior to the acts complained of in these suits, this mill had been run by water power furnished by this river. To carry out the command of the Legislature contained in St. 1886, c. 331, to purify the sewage which it was discharging into the Blackstone River, the defendant built an outflow sewer extending from Mill Brook, at a point above its junction with the Blackstone River, to the purification works which it constructed. From June 25, 1890, to the date of the second of these writs, the city has been all the time diverting from Mill Brook water, bearing sewage, and conducting it to the purification works, and thence discharging the purified liquid into the Blackstone River at a point below the plaintiff’s mill, so that the plaintiff has lost the use of this water. He claims damages for this diversion.

By no one of the several votes and orders of the city council relating to Mill Brook, prior to March 8, 1880, did the' city assume to take or divert its waters from any riparian proprietor below the point to which the last of the changes referred to extends. By these votes, and the action under them, the city acquired no right to divert any part of the water from the plaintiff’s mill. The right of the plaintiff to recover damages, under the statute, for the rights acquired by the city, was therefore limited to loss from the pollution of the water and other similar causes, and did not include damage for any diversion of the stream from his mill. This is settled by Washburn & Moen Manuf. Co. v. Worcester, 153 Mass. 494. There is nothing at variance with this statement in the case of Worcester Gas Light Co. v. County Commissioners, 138 Mass. 289, in which it appears that Piedmont Brook had been taken by the city for the purposes for which it was subsequently used, more than two years before the time when the petitioner filed its petition for the assessment- of damages. This use involved a diversion of the water from the petitioner’s estate. The petition in that case, therefore, came too late.

The defendant contends that the vote of March 8, 1880, gave it a right to divert the water from the plaintiff’s mill; but the rights taken under this vote extended down the stream only to the point where the waters were to be discharged into the Blackstone River at the terminus of the “ common sewer which extends from Cambridge Street to a point on the Blackstone River, about fifty feet below the stone bridge over said river, on Millbury Street, near the works of the Washburn and Moen Manufacturing Company.” This point, is above the plaintiff’s mill, and the vote gave the city no right to divert the water from the river below, into which the brook was accustomed to flow, and gave the plaintiff no right to damage for ah anticipated diversion of water from his mill.

The St. 1886, c. 331, under which the outflow sewer was constructed, required the city to remove the sewage from the water; but it did not give a right to take property without compensation. It authorized the taking of “lands, water rights, water privileges, rights of way or easements . . . necessary for the establishment of such system of sewage disposal,” and compelled the payment of damages for all property so taken. A description of property taken was to be filed and recorded in the registry of deeds. The city did not assume to take any water rights under this statute, nor did it. file any certificate in the registry of deeds. The diversion of water from the plaintiff’s mill was, therefore, unauthorized.

The decisions in Harrington v. Worcester, 186 Mass. 594, and Rome v. Worcester, 188 Mass. 307, do not relieve the defendant from liability for this diversion of water. The first of these cases merely holds that an agency of the government, charged with the performance of a governmental duty for the benefit of the general public, is not liable to a personal action, in the absence of a statutory provision, for the negligent omission to do that which the statute requires of it. It does-not suggest that a city, in the performance of such a duty, can take the property of another by the diversion of water from his mill without a liability in damages. The second of these cases rests upon the familiar doctrine stated in Moynihan v. Todd, 188 Mass. 301, that a city or town, in such a case, is not liable, in an action for negligence, for the misfeasance of its servants or agents while acting in the performance of its public duties.

Numerous questions have been raised as to the assessment of damages. The natural flow of, water in the brook is materially increased by water drawn from the city’s reservoirs on other streams, through the pipes of the city’s aqueduct, and discharged in the form of sewage into Mill Brook. Under the statute cited the city is required to remove the sewage from the water. In our opinion the auditor rightly ruled .that, for the diversion from the legally established sewer of so much of the polluted water as entered the sewer in the form of sewage from sources supplied with water by the city’s aqueduct, the defendant is not liable. The natural current of the brook is not diminished by taking out the amount of water which is emptied into it as sewage from outside sources. If it might be held that water so entering the stream should be treated as a part of its natural flow, as between riparian proprietors on the river below, we think it ought not to be so treated in a case of this kind, while it is in that part of the brook which was legally appropriated and is maintained by the city as a sewer.

The yield from the urban area — the surface water that finds its way into the sewer from the settled portion of the city — was rightly treated as a part of the water of the brook. If the streets and houses were not there, most of it would pass into the stream. The slight increase in the quantity that comes from the construction of streets and sidewalks is a mere incident to the change in the use of the land, and when it reaches the brook it is a part of the water which may be used by the riparian proprietors.

Upon the findings of the auditor there was no error in holding that the ground water that leaks into the sewers may be disregarded as a separate element in the computation. It appears that the quantity that leaks from the city’s water pipes is too small to be worthy of consideration.

The defendant contended that there should be an allowance in the nature of set-off on account of the fact that water has wasted over the spillways of the city’s Lynde Brook reservoir, its Tatnuck Brook reservoir and its Kettle Brook reservoir, which were, severally, parts of its system of aqueducts. All this water flows into the Blackstone River, and the plaintiff has the benefit of it at his mill. The city might retain and use all of it in its aqueducts, if it were necessary or profitable so to do. But it is not practicable for the city, by any reasonable effort, to utilize all of this water at all seasons of the year. Although damages for the original taking of it were computed upon the theory that the city had taken and might use the entire outflow of these brooks, the riparian proprietors below are not chargeable for their use of any that is permitted to run to waste, and to pass through natural watercourses to the sea. Framingham Water Co. v. Old Colony Railroad, 176 Mass. 404, 411. Wamesit Power Co. v. Sterling Mills, 158 Mass. 435, 437. The defendant has no better right to charge the plaintiff for the use of this water, by setting off its value against the defendant’s liability for the wrongful use of the water of Mill Brook, than it would have to maintain an action of contract against other riparian proprietors for the value of this waste water as an addition to the water power of their mills.

The defendant relies upon its alleged acquisition of rights formerly belonging to the Blackstone Canal Company, granted by the St. 1822, c. 27, and finally disposed of by that company under the authority of the St. 1844, c. 166. The city has a fractional interest in certain property conveyed by the canal company after the discontinuance of the canal. We think it plain that, under these conveyances, the city acquired no right to divert the waters of Mill Brook. The water rights granted by the Legislature to the Blackstone Canal Company were only for the purpose of supplying the canal. The rights conveyed by this company were not rights to interfere with the ordinary flow of the stream, otherwise than by a reasonable use of it after the discontinuance and abandonment of the canal. The vested rights secured to the company and its assigns by the St. 1844, c. 166, after a sale of its property, were only to the dams located to maintain a head of water. There is nothing to show that the purchasers from the canal company acquired a right to divert any part of the waters of Mill Brook, to the detriment of any riparian proprietor.

The St. 1886, c. 331, gave the defendant no rights in North Pond, nor any other water rights, except as they should be taken under the authority' of the act. As none were taken, the city has acquired none under this statute.

The auditor rightly ruled that the witness Eddy, being upon the stand, could be required to express an opinion, if he had one, and that he could not be compelled to study the case or perform labor in order to qualify him to express an opinion. As the witness had formed an opinion which he had committed to a paper which he had with him on the stand, the requirement that he should take the paper in his hand and examine it, to refresh his recollection, was not different in substance or legal effect from a requirement that he should use his mental faculties in listening to a question and in reflecting upon it, in order to give a proper answer. Barrus v. Phaneuf, 166 Mass. 123. It was not like a requirement that he should study a treatise on a scientific subject. See Wigmore on Evidence, §§ 2192, 2193, 2203, 665 (3), and cases cited.

Judgments on the findings.