153 Mass. 494 | Mass. | 1891
Thé St. of 1867, c. 106, § 2, gives the city council of Worcester authority to “fix the boundaries of Mill Brook,” and other brooks therein named, to “alter, change, widen, straighten, and deepen the channels of said brooks and remove obstructions therefrom,” and to “ use and appropriate said brooks, cover them, pave and enclose them in retaining walls, so far as they shall adjudge necessary for purposes of sewerage, drainage, and the public health.” Section 8 authorizes the city council to take and hold land, water rights, dams, or other real estate- for the purposes above mentioned, and provides for the recovery of damages by persons injured by the exercise of authority under this statute. The St. of 1871, c. 354, § 5, extended the time within which applications for damages might be made, by persons whose property had been taken or injured, to two
The petitioner is a mill owner on the Blackstone River, of which Mill Brook is a tributary, and it has been accustomed to use the water flowing from Mill Brook to furnish power for its mill. The city council, acting under the authority of this statute, passed five different votes or orders before the petition was filed, all having reference to different parts of Mill Brook, and, in accordance with the terms of the orders, changed the course and diverted the waters of the brook in various places, and returned the waters more or less affected by sewage to the natural channel at a point above the land and mill of the petitioner, and above the point where the natural channel of Mill Brook joined the Blackstone River. The waters of the stream in that condition came down into and through the works of the petitioner, and the waters were injuriously affected by the pollution from sewage. By the terms of each of these votes, the portion of the brook to which the vote related was appropriated to be used and forever after maintained as a main drain and common sewer. Long after the filing of the petition, by a vote passed Mai-ch 8, 1880, the waters of Mill Brook were diverted from the mill of the petitioner, and made to flow into the river at a point below the petitioner’s land.
It is contended, in behalf of the petitioner, that the several votes of the city council passed before the petition was filed deprived the petitioner of all property in the brook, and entitled it to damages as for a diversion of the whole of the brook from its premises. On the other hand, it is contended for the respondent that the St. of 1867, c. 106, does not provide for damages to those whose estates are injured by sewage through changes in Mill Brook.
Prior to the action of the city council under this statute, Mill Brook, being the natural drainage outlet for the surface water of a large part of the city of Worcester, had become somewhat polluted by the surface wash from the streets, which had flowed
As to the construction of the statute which we have been considering, and of other similar statutes, see Butler v. Worcester, 112 Mass. 541. Woodward v. Worcester, 121 Mass. 245. Bailey v. Woburn, 126 Mass. 416. Ætna Mills v. Waltham, 126 Mass. 422. Worcester Gas Light Co. v. County Commissioners, 138 Mass. 289. Exceptions sustained.
This request was to the effect that the petitioner was entitled to recover damages at least to the extent of the pollution that had already resulted, as well as for such as might arise in the future, under the votes in question of the city council.