Washburn & Moen Manufacturing Co. v. City of Worcester

116 Mass. 458 | Mass. | 1875

Gray, C. J.

Where a city, or a board of municipal officers, is authorized by the Legislature to lay out and construct common sewers and drains, and provision is made by statute for the assessment, under special proceedings, of damages to parties whose estates are thereby injured, the city is not liable to an action at law or bill in equity for injuries which are the necessary result of the exercise of the powers conferred by the Legislature. But if by an excess of the powers granted, or negligence in the mode of carrying out the system legally adopted, or in omitting to take due precautions to guard against consequences of its operation, a nuisance is created, the city may be liable to indictment in behalf of the public, or to suit by individuals suffering special damage. Haskell v. New Bedford, 108 Mass. 208. Merrifield v. Worcester, 110 Mass. 216. Brayton v. Fall River, 113 Mass.

The case at bar, as now presented, does not require the court to define the limits of the application of either of these rules to the discharge of the Mill Brook sewer into the Blackstone River. The only acts charged against the city of Worcester in the bill before us are the converting of the channel of Mill Brook into a sewer, and the opening of other sewers and drains into the same. These acts were expressly authorized by the St. of 1867, c. 106. Butler v. Worcester, 112 Mass. The only further allegations in the bill consist of a conclusion of fact, that a nuisance to the plaintiff was thereby created; and a conclusion of law, that the acts of the city were unauthorized and in violation of the plaintiff’s rights. The bill does not allege any negligence of the city, either in the manner in which the sewage was discharged from the mouth of the sewer, or in omitting to take proper precautions to purify it. The necessary result is that the

Demurrer must be sustained.