Bacon v. City of Boston

• Decision Date: 25 June 1891
• Citation: 154 Mass. 100,28 N.E. 9
• Parties: BACON v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 100

28 N.E. 9

BACON v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Middlesex.

June 25, 1891

Exceptions from superior court, Middlesex county; P EMORY ALDRICH, Judge.

HEADNOTES

Municipal Corporations 404(2)

268 ----

268IX Public Improvements

268IX(D) Damages

268k404 Remedies of Owners of Property

268k404(2) Actions for Damages.

St.1881 c. 303, § 3, providing a form of procedure for the city of Boston to acquire land along a line of a sewer, does not provide for an action, where land not actually taken is injured by the flow of sewage and an action at common law may be maintained.

Municipal Corporations 838

268 ----

268XII Torts

268XII(D) Defects or Obstructions in Sewers, Drains, and Water Courses

268k836 Discharge of Sewage

268k838 Pollution of Streams or Other Waters.

St.1881 c. 303, § 3, authorizing the city of Boston to take land on a line of a sewer, and construct works in order to treat sewage, and free it from noxious matter, does not authorize it to deposit sewage at a place where it will percolate into and through the ground of another, thereby rendering water unfit for use, affecting the health of a community, and injuring a manufacturing business.

These actions were brought by Charles N. Bacon against the city of Boston to recover damages for injury to land in depositing sewage, etc., adjacent thereto. The report of the case showed "that the city of Boston, claiming to act under the authority of chapter 202 of the Statutes of 1875, and chapter 303 of the Statutes of 1881, had built a sewer, into which it had taken the refuse of several tanneries and buildings in Woburn and Winchester to the extent of three or four hundred thousand gallons per day, and had, against the plaintiff's objection, turned this refuse or sewage onto grounds in Winchester taken and owned by it on the line of said sewer, and adjoining the plaintiff's said premises, into canals, basins, and tanks built by said defendant, in which it treated such sewage in order to free it from noxious and offensive matter; that said sewage in said tanks, basins, and canals, gave off noxious and offensive odors, which penetrated to and upon the adjoining premises of the plaintiff, and rendered him and many of his workmen sick, and caused them great discomfort and annoyance; that said sewage also percolated through the ground of the defendant to and into the plaintiff's premises and the wells on said premises, and made the water in said wells unfit for drinking or manufacturing purposes; that the premises of the plaintiff were worth, with the machinery thereon, from twenty-five thousand dollars to forty thousand dollars; and that for about one month, in August, 1883, the plaintiff had closed his works on account of the smells. There was evidence, not objected to, that the results of said acts of the defendant injured the plaintiff's goods, the market value thereof, their prestige in the markets, and the premises of said plaintiff as a manufacturing plant." Judgment for plaintiff, and defendant appeals.

COUNSEL

Benj. F. Butler and Frank L. Washburn, for plaintiff.

Andrew J. Bailey, for defendant.

OPINION

C. ALLEN, J.

The statute of 1881, c. 303, § 3, by its true construction, does not authorize the city of Boston to create the nuisance to the plaintiff's land, for which he seeks to recover damages. For purposes beneficial to the water supply of Boston, the city was authorized to take such lands in Woburn or Winchester, on or near the line of a sewer, as it should deem necessary, and construct works in order to treat sewage and free it from noxious and offensive matter and properties. The selection of the lands to be taken, within the prescribed limits, was left to the city. It does not appear that it was necessary to create such a nuisance as the plaintiff has suffered...