Miles v. City of Worcester

Decision Date24 October 1891
Citation154 Mass. 511,28 N.E. 676
PartiesMILES v. CITY OF WORCESTER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Exceptions from superior court, Worcester county HAMILTON B. STAPLES, Judge.

HEADNOTES

Municipal Corporations 848

268 ----

268XII Torts

268XII(E) Condition or Use of Public Buildings and Other Property

268k848 Buildings in General.

Where a city builds a wall several feet high along one side of a schoolyard, and fills the yard to a level therewith, its former level being the same as that of adjacent premises, and the wall in course of time becomes pressed out by the weight of filling so as to overhang the said premises a foot or so it must be deemed an actionable nuisance; and the fact that it was built for the public use and general benefit is no justification.

This was an action of tort by Catharine S. Miles against the city of Worcester to recover for damages occasioned by the improper construction and maintenance of wall. The wall was built by the city along one side of a school yard adjoining plaintiff's premises, and was several feet high. After its construction the city filled the yard to a level with the top of the wall, its former level being about the same as that of the plaintiff's premises. The wall as first built was placed on the established line, or nearly so, and no complaint was made of any encroachment. The evidence showed however, that at the time of the trial it was over the line in some places nearly or quite a foot at the bottom, and had been gradually pressed out by the weight of filling behind it so as to overhang the plaintiff's premises about a foot at the top, and that this encroachment had injuriously affected her estate. There was judgment for plaintiff, and defendant excepts. Affirmed.

COUNSEL

Hopkins & Bacon and Frank B. Smith, for plaintiff.

Frank P. Goulding, for defendant.

OPINION

ALLEN J.

It is obvious that the defendant's wall, in its present position upon the plaintiff's plan, must be deemed an actionable nuisance, unless the defendant can claim exemption from responsibility on some special ground. Codman v Evans. 7 Allen, 431; Nichols v. Boston, 98 Mass. 39, 43; Fay v. Prentice, 1 C.B. 828. The defendant suggests that it is not liable, because the wall was built and maintained solely for the public use, and with the sole view to the general benefit, and under the requirement of general laws; and that the case cannot be distinguished in principle from the line of cases beginning with Hill v. Boston, 122 Mass. 344, and ending with Howard v. Worcester, 153 Mass. ----, 27 N.E. 11. We are not aware, however, that it has ever been held that a private nuisance to property can be justified or excused on that ground. The verdict shows a continuous occupation of the plaintiff's land by the encroachment of the defendant's wall. The question of negligence in the building of the wall is not material. The erection was completed, and was accepted by the defendant, and is now in the defendant's sole charge, and if it is a nuisance the defendant is responsible. Staple v. Spring, 10 Mass. 72, 74; Nichols v. Boston, ubi supra. Such an occupation of the plaintiff's land cannot be excused, for the reasons assigned. A city cannot enlarge its school grounds by taking in the land of an adjoining owner by means of a wall or fence. The public use and the general benefit will not justify such a nuisance to the property of another. If more...

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