Bainard v. City of Newton

• Decision Date: 29 June 1891
• Citation: 27 N.E. 995,154 Mass. 255
• Parties: BAINARD v. CITY OF NEWTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 255

27 N.E. 995

BAINARD v. CITY OF NEWTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1891

Appeal from supreme judicial court, Middlesex county; MARCUS P.KNOWLTON, Judge.

HEADNOTES

Waters and Water Courses 75

405 ----

405II Natural Water Courses

405II(C) Pollution

405k73 Actions

405k75 Injunction.

Discharge of city's sewage, never sufficient to cause overflow though emptying more than natural flow, and driving away the fish, and sometimes offensive without amounting to a nuisance, held not enjoinable by lower owner.

COUNSEL

S.H Dudley, for plaintiff.

W.S Slocum, for defendant.

OPINION

HOLMES, J.

This is a bill in equity to enjoin the city of Newton from discharging sewage into a brook, called "Cheese-Cake Brook," above the plaintiff's land upon the brook, and from emptying more water into it than would flow into it naturally. The master's report shows that the city has constructed a system of surface drainage in some of its streets and ways, under the powers relating to the public streets and ways, and that no drainage comes into the brook except what comes from the ordinary wash of these streets and ways. In one place in the water-shed west of the brook the surface water gathered into a small stream for some 1,300 feet, and then spread over the surface again, and disappeared below the plaintiff's land. A "small, but substantial," portion of the water from the western water-shed, including, perhaps, a portion of the last-mentioned water, and water from the eastern water-shed, which before had not entered the brook, now flows into it through the drains. The increase occurs mainly in heavy rains and sudden thaws, generally does not last many days, and is not found to cause the brook to overflow. The surface drainage into the brook being now from streets, the water is no longer clear, the fish have been driven from it, and at times it has a disagreeable smell, not found to amount to a nuisance.

Upon these facts we are of opinion that the bill must be dismissed. The pollution of the water by the usual impurities from streets is not a cause of action. The use of his land for streets, with the usual consequences to owners lower down upon the stream, would not exceed the common-law rights of an upper owner. Wheeler v. Worcester, 10 Allen, 591 602; Merrifield v. Worcester, 110 Mass. 216, 220. See Middlesex Co. v. McCue, 149 Mass. 103, 21 N.E. 230. Equally little can the...