Belkus v. City of Brockton

• Decision Date: 08 March 1933
• Parties: BELKUS et al. v. CITY OF BROCKTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 285

184 N.E. 812

BELKUS et al.

v.CITY OF BROCKTON.

Supreme Judicial Court of Massachusetts, Plymouth.

March 8, 1933.

Report from Superior Court, Plymouth County; F. T. Hammond, Judge.

Action by Mike Belkus and another against the City of Brockton. On report.

Judgment ordered to be entered for plaintiffs.

J. W. Murdoch, of Brockton, for plaintiffs.

T. W. Prince, City Solicitor, of Brockton, for defendant.

WAIT, Justice.

It was held in Parker v. City of Lowell, 11 Gray, 353, that a municipality could be held liable in tort for a negligent failure to keep a highway culvert in such condition as not to obstruct the flow of a natural watercourse, if damage was caused by a consequent flooding of the plaintiff's premises. A similar decision was rendered in Perry v. City of Worcester, 6 Gray, 544, 66 Am. Dec. 431, when a city had set back the water of a natural watercourse by building a bridge across it in such wise that the waterway was narrowed. The liability is not affected by the fact that the municipality is acting under authority conferred by statute, unless the statute contemplates that damage will necessarily result from the action authorized. If damage will necessarily result, then recourse must be sought by petition under the statute; and an action of tort is not the remedy. This is so because where damage necessarily results to the property of others there is, in substance, a taking of a right of the owners which under our Constitution entitles the owners to compensation. For this the statute must provide. Where, however, damage is not a necessary result, but occurs because of conduct of the municipality in performing or maintaining the authorized undertaking, there is no legitimate taking of property by legisative mandate; there is tortious action which entitles the injured person to redress from the wrongdoer. The assumption is that the Legislature intends that the work will be so carried on, and so dealt with in maintaining it, that injury will be avoided. Morse v. City of Worcester, 139 Mass. 389, 391, 392, 2 N. E. 694. These principles are enforced and illustrated in Pevear v. City of Lynn, 249 Mass. 486, 144 N. E. 379;Diamond v. Inhabitants of North Attleborough, 219 Mass. 587, 107 N. E. 445;Daley v. Inhabitants of Watertown, 192 Mass. 116, 78 N. E. 143;Aldworth v. City of Lynn, 153 Mass. 53, 26 N. E. 229,10 L. R. A. 210, 25 Am. St. Rep. 608;Bates v. Inhabitants of Westborough, 151 Mass. 174, 23 N. E. 1070,7 L. R. A. 156;Stanchfield v. Newton, 142 Mass. 110, 7 N. E. 703;Manning v. City of Lowell, 130 Mass. 21. See, also, Washburn & Moen Manuf. Co. v. City of Worcester, 116 Mass. 458;Merrifield v. City of Worcester, 110 Mass. 216, 14 Am. Rep. 592;Wilson v. City of New Bedford, 108 Mass. 261, 11 Am. Rep. 352.

The measure of the damages recoverable where real estate is flooded differs with circumstances. If the injury is permanent,unchanged by a cessation of the injurious action, the damage is the difference in the fair market value of the injured premises before and after the injury. Manning v. Woodlawn Cemetery Corp., 239 Mass. 5, 131 N. E. 287. If the injury is reasonably curable by repairs, the expense of repairs, if less than the diminished market value, is the measure of recovery. See Matthews v. New York Central & Hudson River Railroad Co., 231 Mass. 10, 120 N. E. 185. If the injury is continuous but subject to termination by later act of the wrongdoer, the measure is the lessened rental value while the injury continues. Diamond v. Inhabitants of North Attleborough, 219 Mass. 587, 107 N. E. 445;Sturtevant v. Ford, 280 Mass. 303, 317, 318, 182 N. E. 560. If the injury is such that the injured person, by rightful action on his part, can put an end to it, the damage is the reasonable expense to which he is put and intervening loss of rental value for the period needed for removing the cause. Cavanagh v. Durgin, 156 Mass. 466, 470, 31 N. E. 643.

It is immaterial whether the flooding is due to an overflow from the watercourse or to saturation from interrupted run off of surface water or from a rise in the level of the water table of underground water. See Wilson v. City of New Bedford, 108 Mass. 261, 11 Am. Rep. 352.

The case before us is to be decided in the light of the foregoing principles. The material facts are as follows: The plaintiff's premises, lying at some distance from the borders of a natural watercourse, were flooded at various times, within six years from the date of his writ, by water which backed up upon them or was raised in level and held back upon them in consequence of the raising of the level of the bottom of the watercourse or of the level of the flow in the watercourse due to blocking of the flow by pipes placed by the city under the bridge or culvert in the watercourse, and due, further, to failure to remove obstructions allowed by the city to accumulate in the bed of the watercourse. The plaintiff had no right to enter upon the watercourse to remove obstructions. In 1921, after a flooding of his cellar, he filled in the cellar bottom with cement so that the level of the cellar floor was raised. In 1926, after other floods, he put in additional cement and lined bottom and walls of the cellar. The expense was reasonable. As a consequence of the raising of the floor level, head room was so diminished that part of the basement could not be rented for the uses to which it had been put. The market value of the buildings and land was reduced on account of the changed basement, injury to walls and liability to overflow. The city council was authorized by St. 1888, c. 309, to adopt a system of drainage; and the board of mayor and aldermen was authorized, for the purpose of surface drainage, within the city limits, to alter, change, widen, straighten and deepen the channels of any brooks or natural streams, to remove obstructions in or over them, to cover, pave or enclose them in retaining walls, as far as they judged necessary. They were given power to take and hold by purchase or otherwise such lands, water rights, dams, easements or other real estate within the limits...