Anglim v. City of Brockton
| Decision Date | 07 January 1932 |
| Citation | 278 Mass. 90 |
| Parties | WILLIAM J. ANGLIM, trustee, v. CITY OF BROCKTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 7, 1931.
Present: RUGG, C.
J., WAIT SANDERSON, & FIELD, JJ.
Water Rights. Municipal Corporations, Officers and agents, Liability in tort, Sewer, Drain. Agency, What constitutes, Independent contractor. Nuisance. Public Officer. Negligence, In construction of sewer. Equity Jurisdiction, To enjoin pollution of stream by municipality. Brockton. Equity Pleading and Practice, Master: findings, rulings of law.
Upon the filing of the report of a master to whom was referred a suit in equity under a rule in the usual form, it is the duty of the court to decide on the facts found what, if any, relief should be granted, and rulings of law by the master respecting the ultimate rights of the parties cannot affect the decision of the court.
Where a statute authorizing a city to establish a system of drainage took effect upon its enactment, it was not error to find, on testimony by a superintendent of streets and an engineer that work done on the system in many years thereafter was done "under the . . . statute."
It cannot be presumed that public officers constructing a system of drainage in a city, which was authorized by a statute, acted illegally.
St. 1888, c.
309, authorizing the city of Brockton to establish a system of drainage for rainfall, surface and subsoil water only, and to alter streams within the city for that purpose, provided that a person suffering damage by acts of the city or its agents in the exercise of the powers conferred thereby might have his damages assessed in the same manner as in the laying out of highways; and that the discharge of filth, refuse or other polluting substance into streams was not authorized. In a suit in equity commenced against the city in 1922 by the owner of land and pondage areas on a stream below the city to compel the defendant to use the stream so as not to injure the plaintiff's property and for damages, a master without a report of the evidence, found that work in widening, straightening and deepening the stream under the authority of the statute was done in a workmanlike manner between 1919 and 1922 by an independent contractor hired by the board of highway commissioners of the city established under St. 1912, c. 340, the work being done under the supervision and subject to the acceptance of the city engineer; that such gravel and other material as came upon the plaintiff's land as a result of the work done under St. 1888, c. 309, came there as a result of an extraordinary freshet; that, apart from such work, the stream received the natural drainage of the city; that, although noxious sewage and other polluting matter from the city's sewerage system was carried into the stream at times and slight amounts of it reached the plaintiff's land, this was due to freshets and to accidents to the sewerage system and not to negligence on the defendant's part that the plaintiff, who became owner of the land about 1918, knew of the pollution; that his premises would have been unsuitable for harvesting ice at a profit even if the stream had been unpolluted; and that the plaintiff had suffered no damage. The bill was dismissed. Held, that
(1) The circumstance, that the work under St. 1888, c. 309, was done under the supervision and subject to acceptance by the city engineer, did not make the contractor and his employees agents of the city nor create a liability on its part for their negligent acts;
(2) The highway commissioners of the city were public officers for whose negligent acts in the performance of their public duties the city would not be liable, apart from statute creating such liability;
(3) In so far as the gravel and other material came on the land of the plaintiff as a result of the work done under St. 1888, c. 309, the plaintiff's exclusive remedy was under that statute, and he could not maintain the suit for relief in that respect even though there may have been jurisdiction in equity as to some other aspects of the controversy;
(4) The plaintiff had no right to relief in equity against the city with respect to such pollution of the water of the stream as was caused by surface drainage from the city streets flowing into it;
(5) Although the city had no right, in connection with its sewerage system, to create a nuisance on the plaintiff's land, and although the plaintiff's right to relief respecting such a nuisance was not barred by the findings that his land was unsuitable for the harvesting of ice and that he knew of the pollution when he became the owner of the land, nevertheless, the bill properly was dismissed: the city was not liable if the presence of sewage and other polluting matter in the stream was due to a defect in the plan for the sewerage system, and if it were due to matters pertaining to the construction, use or maintenance of the sewerage system, the master's finding, that the city was not negligent, was conclusive against the plaintiff.
A finding by the master in the suit in equity above described, that the plaintiff had made conveyance of his property in 1925, reserving "the present chose in action," was not inappropriate, since it might at least have affected the nature of the relief if it had appeared that the plaintiff was entitled to some relief.
BILL IN EQUITY, filed in the Superior Court on April 1, 1922, and described in the opinion.
The suit was referred to a master. Material facts found by the master and the plaintiff's exceptions to his report are described in the opinion. A motion by the plaintiff to recommit the report was denied by Collins, J., who ordered the entry of an interlocutory decree sustaining certain of the plaintiff's exceptions, overruling the others and confirming the report. Such a decree was entered thereafter by order of Macleod, J., by whose order there also was entered a final decree dismissing the bill. The plaintiff appealed from both decrees.
T.A. Flanagan, (G.W. Folsom with him,) for the plaintiff. J.E. Handrahan, for the defendant.
This bill in equity was brought to restrain the defendant from discharging into or depositing in a stream flowing through the defendant city above the plaintiff's property any refuse material, sewage, gravel and other debris, to compel it so to use the water of the stream as not to injure the plaintiff in his occupation and enjoyment of his property for the assessment of damages and other relief. The case was referred to a master. The plaintiff has appealed from an interlocutory decree denying his motion to recommit the master's report, overruling some of his exceptions thereto, sustaining others and confirming the report. The plaintiff has also appealed from a final decree dismissing the bill. The evidence is not reported.
When the bill was filed, in 1922, the plaintiff had for about four years held title as trustee to real estate and flowage rights in the city of Brockton and the town of East Bridge-water. A nonnavigable stream which had its source above the city of Brockton flowed through this real estate. Within the limits of the plaintiff's land were pondage areas, but for many years no dams had been in use to flood these areas and except in times of freshet the water had flowed through the plaintiff's land only in the channel of the stream. The property which the plaintiff alleges to have been damaged is more than three miles from the city of Brockton. In 1925 the plaintiff disposed of all the real estate to which the suit relates, reserving what the report describes as "the present chose in action." The bill alleges that since January 1, 1920, the defendant through its servants and agents has deposited gravel, sand and silt in the stream above the plaintiff's land which have been carried by the current and deposited on the plaintiff's land, and threatens to continue to do the same. It also alleges that continuously and in violation of the plaintiff's common law rights and of his rights under the provisions of St. 1888, c. 309, Section 9, the defendant has discharged into the stream domestic and manufacturing filth, refuse and other polluting substances by means of a system of sewerage and surface drainage, impairing and destroying the purity of the water, and that the plaintiff's rights will be irreparably violated and infringed if the defendant is permitted to continue to do the acts of which he complains, his water privileges will be destroyed and rendered of no value, and he will be prevented from utilizing his flowage rights for the lucrative purpose of harvesting and selling ice and for other lucrative uses.
St. 1888, c.
309, is entitled "An Act to authorize the city of Brockton to provide for surface drainage, and to improve the brooks and natural streams within the limits of said city." Section 1 of the act provides: "The city council of the city of Brockton may adopt a system of drainage for . . . [the] whole or, from time to time, for different parts of its territory and may provide by ordinance that assessments for making the same shall be made upon estates within such territory by a fixed uniform rate." Section 2 provides that the board of mayor and aldermen of the city, "for the purpose of surface drainage, may, within the limits of said city, alter, change, widen, straighten and deepen the channels of any brooks or natural streams . . . and the more effectually to make said improvements may take and hold by purchase or otherwise . . . real estate within the limits of said city, as said board of mayor and aldermen may adjudge necessary for the purposes of this act." Section 6 gives any person whose land or rights are taken or who suffers damage or injury in his property or rights from any...
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