92 Mass. 591
Mass.
1865
Colt, J.

The plaintiff is a riparian proprietor upon Mill Brook, a natural watercourse flowing through the city of Worcester, and has the right to have it flow through and from his premises in a free and unobstructed channel. He may maintain this action against those parties who interfere with that right, or against any one of them who by his unlawful act contributes substantially to the injury which he suffers, unless the party or parties charged with creating the obstruction can claim the protection of the statutes known as the mill acts, or those other statutes which provide compensation in a particular mode for *601injuries done by public authority in the exercise of the right of eminent domain. If the injury is produced by the joint action of several parties, and especially if it is the result of the independent action of several parties contributing thereto, though not in combination or by concert, it is no defence that all are not made defendants; for when the injury does not arise from privity of contract, but is a mere misfeasance, misjoinder of defendants cannot be availed of to defeat the action. The suggestion that the damage to the plaintiff is produced by the independent acts and trespasses of others can be considered only upon the question of damages.

The report of the auditors establishes the fact that the plaintiff within six years past has suffered serious damage by water set back upon his premises, which would not have occurred if Mill Brook had remained in the condition in which it was in 1846. The causes which have produced the injury are various, numerous, and in their combined action unusually complicated. From 1828 to 1846 the existence of the Blackstone Canal, terminating at or near the plaintiff’s premises, furnished a sort of artificial channel for the brook, which to the advantage of the plaintiff was kept dredged and deepened for the uses of the canal. In that year the canal was discontinued, though the first lock gate below, which sets back water to near the outlet of the plaintiff’s drain, was continued by law for mill purposes, and has since been and is now so used. The discontinuance of the canal and the continuance of the dam at the lock gate it is found naturally and inevitably caused the filling up of the bed of the channel, so that no complete or permanent relief can be, had to the plaintiff without the removal or reduction of the dam.

In 1846, the year of the discontinuance of the canal, Front Street bridge was built by the defendants across the brook, at a point below the plaintiff’s premises, upon a public street of that name; and such is the size and form of its arch that, in connection with other causes, it now tends in freshets to increase the height of the water above, so as to affect in some degree the height at the outlet of the plaintiff’s drain, and increase back water on his premises.

*602In 1849 or 1850 the bridges on Exchange and Bridge Streets were constructed by the Norwich and Worcester Railroad, and are described as direct and efficient causes of the flooding, in connection with the encroachments which have from time to time been made upon the stream by buildings, embankments and mills, on both sides, constructed by riparian proprietors and parties other than the city, and by obstructions in and over the stream, placed there by such parties.

The report finds that the chief and by far the most efficient cause arises from the acts and neglects of riparian occupants and parties other than the city, who make the brook a receptacle for all kinds of waste material, so that since the discontinuance of the canal the channel has become filled with sand, gravel, bricks, stones and rubbish of all kinds, washed or thrown in, making at the outlet of the plaintiff’s drain the bed of the stream three and a half feet higher now than the bed of the old canal.

During this time, the surface wash from the streets of the city rapidly enlarging their limits, and to some extent the sediment from the underground sewers which it is inferred have been constructed by the city since 1846, have contributed to the filling up of the channel.

Of these cooperating causes, thus briefly indicated, the case requires us to consider only those which it is alleged the city is responsible for.

1. The surface wash from the streets. This is stated to be incidental to the growth of the city and the construction of the streets. It finds its way naturally into Mill Brook, which furnishes the only channel for the accumulated surface water of the vicinity. No new watercourse has been diverted into it. It receives no more water than would be collected by the natural surface of the land, but, by the changed uses to which a dense population have appropriated it, the soil of the numerous streets has been more rapidly earned into the stream. To hold the defendants liable to an action from such cause would be to saj that the owner of land must be restricted to such uses of it as will not, by the ordinary action of the elements, cause the soil to *603wash in and fill to any increased extent the adjacent brooks and streams. The injury which results to the plaintiff from this cause must be regarded as damnum, absque injuria. There is another answer to this claim of the plaintiff. The city, by their proper authorities and agents, are charged with the public duty of constructing and maintaining the public streets. They must construct and maintain them in such places and in such manner as the public convenience and necessity require. They must provide for and dispose of the surface water which falls upon them, and, in the discharge of this duty, neither the city nor their agents can be proceeded against in an action of tort for damage sustained by a private citizen. In the construction of streets, highways and bridges, it is the right of the public to take all private property necessary, and do all other necessary incidental damage to the individual. The laws of the Commonwealth provide compensation for such injury, but the remedy must be sought in the manner pointed out by the statutes, and not by action of tort against the city or their agents. If the public work is built so as to cause unnecessary damage by want of reasonable care and skill in its construction, then the right of eminent domain will not protect the parties by whom the work is done, but they may be liable in tort for such unnecessary injury. The ■ case does not find that the surface wash from the streets was not the necessary and inevitable consequence of their construction, or that the streets were laid out and built without reasonable care and skill. Flagg v. Worcester, 13 Gray, 601. Sprague v. Worcester, Ib. 193. Perry v. Worcester, 6 Gray, 544. Parks v. Newburyport, 10 Gray, 28. Mellen, v. Western Railroad, 4 Gray, 303.

2. The report finds that the deposits from the underground sewers have contributed in some manner to the filling up of the brook, but that the sediment carried by them into it is less in amount and less injurious in kind than would have been carried in from the surface by the same water, if the sewers had not been built; and further, that these deposits have not been sufficient to exert any appreciable effect on the plaintiff; and this seems to dispose of this cause of complaint upon two good grounds.

*6043. The bridges at Exchange and Bridge Streets it appears are so built that their abutments and arches are direct and efficient causes of the plaintiff’s injury. They were built by the railroad corporation for the purpose of both railroad and highway crossings, and we must presume were built under the authority of the charter and the laws of the Commonwealth. The city has no power to prevent or to dictate the mode of their erection. This was a matter over which the county commissioners had exclusive jurisdiction in the last resort. The assent of the mayor and aldermen would not render the city responsible. They were not agents of the city for such purposes. Nor would the use of these bridges for public travel to which they were adapted make them structures, for a defect in the original erection of which the city would be responsible. The only party at fault is the railroad corporation. If constructed with reasonable care and skill, the plaintiff’s remedy for an injury caused by them would be, as before suggested, by application for damages to the county commissioners. If the work was not authorized by the charter or was improperly executed, an action of tort might be sustained against the party in fault. It does not follow necessarily, from the fact that injury to the plaintiff is occasioned by these bridges, that any one is liable in this form of action. Sis. 1846, c. 271; 1849, c. 159. Gen. Sts. c. 63, §§ 55, 62. Sawyer v. Northfield, 7 Cush. 490. Gardiner v. Boston & Worcester Railroad, 9 Cush. 1. Mellen v. Western Railroad, 4 Gray, 301. Vinal v. Dorchester, 7 Gray, 421. Child v. Boston, 4 Allen, 41.

4. The only remaining obstruction which is charged upon the defendants is the Front Street bridge. This structure was erected by the city authorities for the accommodation of the public travel. They were bound to construct it with reasonable care and skill, providing waterways sufficiently capacious to accommodate the flow of the stream at all seasons of the year, and all times of ordinary high water or freshets. The considerations above stated apply here. If this bridge was properly built, then, though the plaintiff suffers, his remedy is not by an action of this description. But without depending upon this view of the case as inspects this bridge, we think there are not *605facts enough disclosed in the report to justify charging the defendants with any part of the damage to the plaintiff caused by defect in its construction. The burden of proof is upon the plaintiff. He must make out his case. ' The facts found must be such as to satisfy us reasonably of the defendants’ fault, and that their fault contributed appreciably to the plaintiff’s damage. The report finds that if the stream were now in the condition in which it was in 1846, when the bridge was built, the bridge as it stands would probably not sensibly affect the plaintiff’s premises ; and that if the bridge were enlarged or removed, the water would still continue to set back upon the plaintiff’s premises, by the other causes named. To this the plaintiff answers that the city was bound to provide for such future alterations in the character of the stream as could reasonably be anticipated. As to changes produced by natural causes alone, this may be true. But it cannot be required of the city that they should have built this bridge in anticipation of changes and obstructions produced by the exercise of the chartered rights of other corporations, or the mere trespasses of riparian proprietors unlawfully filling up and encroaching upon the stream. We cannot construe the report as affirmatively showing that this bridge, in connection with natural causes, or others which might reasonably have been anticipated when the bridge was built, and independently of those causes which have arisen since from the acts of others than the city, would have caused any appreciable damage to the plaintiff. Lawrence v. Fairhaven, 5 Gray, 110. Rowe v. Granite Bridge, 21 Pick. 348. Sprague v. Worcester, 13 Gray, 193.

In -the result to which we come, it is not necessary to considei the ground, much relied on by the defendants, that the plaintiff contributed to his own injury by excavating his basement and extending his drain after the discontinuance of the canal in 1846.

Judgment for the defendants.