Biggio v. City of Boston

• Decision Date: 18 June 1901
• Parties: BIGGIO et al. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 356

60 N.E. 938

BIGGIO et al. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 18, 1901

COUNSEL

Geo H. Russ, for plaintiffs.

Arthur L. Spring, for defendant.

OPINION

MORTON J.

The defendant contends that the water flooded the plaintiffs' cellar because the cellar was below the established grade and that the plaintiffs cannot recover, because their violation of the statute has contributed directly to the injury which they have sustained. If the report means that the water flowed into the plaintiffs' cellar by percolation through the intervening soil, then notwithstanding the fact that the water had not flowed into the cellar previously, and would not have flowed into it at the times complained of, but for the stopping of the outlet from the lake by the defendant, we do not see how it can be said that the plaintiffs' act in building the cellar below the established grade did not contribute to the injury which they have sustained. But we doubt whether the report should be so construed. There is a statement in the report that 'the water in Orient Lake overflowed its banks, crossed Chelsea avenue, and flooded the plaintiffs' premises by entering their cellar.' Again in answer to a question by his counsel, 'Describe the situation,' the plaintiff testified: 'The situation; you mean if the flow overrun? Well, if the water raised right over the land, you mean, and over the street? * * * Well, it would come right into my cellar.' What we have quoted tends to show that the water flowed over the street into the plaintiffs' cellar. The plaintiff's testimony that 'he had lived in the vicinity for twenty years, * * * and that previously to February 22, 1899 (one of the occasions complained of), it had not overflowed its banks to his knowledge, nor had he ever been troubled by water flowing on his land,' also tends in the same direction. There was no evidence, so far as appears from the report, how high the water rose at the times complained of, or how high above mean low-water mark Chelsea avenue was, but presumably it was higher than the grade fixed for cellar or basement floors. If the water in the lake overflowed Chelsea avenue, and flowed into the plaintiffs' cellar in that way, it is difficult to see how the fact that the bottem of the cellar was below the established grade contributed to the injury. It, at least would be a question for the jury whether it did...