Boston Rolling Mills v. Cambridge

• Decision Date: 20 March 1875
• Citation: 117 Mass. 396
• Parties: Boston Rolling Mills v. City of Cambridge. Edgar L. Kinsley v. Same
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 396

Boston Rolling Mills v. City of Cambridge.

Edgar L. Kinsley v. Same

Supreme Court of Massachusetts

March 20, 1875

[Syllabus Material]

Middlesex. Two bills in equity, filed in January, 1874, praying that the defendant might be restrained by injunction from permitting any sewage, or water polluted with sewage, from passing into Broad Canal through certain sewers established and maintained by the defendant; that the defendant might be ordered to forthwith remove all deposits and accumulations caused by the emptying of said sewers into said canal, and to abate the nuisance caused thereby, and for further relief. The answer in each case admitted that the sewers emptied into said canal, and averred that they rightfully and legally emptied therein; that the defendant was not liable for the continuance of the sewers or for their original construction and that the plaintiffs had a complete and adequate remedy at law.

Hearing before Ames, J., who reserved the cases for the consideration of the full court upon the bills and answers and an agreed statement of facts in substance as follows:

By a deed of indenture, dated July 8, 1806, the owners of adjoining parcels of land in Cambridge devoted certain portions of the land not covered by tide waters to canals then or thereafter to be dug, for the use of the proprietors and future owners of lands abutting thereon. Among these canals was one called Broad Canal, which they located four thousand feet long, eighty feet wide and nine feet deep from Portland Street to low-water mark on Charles River, a navigable arm of the sea. They granted to each of themselves as owners of land abutting on the several canals, and to all persons holding under them, the right of free and unimpeded navigation over and through the canals, or any of the same, or parts thereof, with vessels, boats, rafts and other things. Broad Canal among others was dug out, as located, before 1810, and has ever since been used for the purpose described in the indenture. The Boston Rolling Mills, under conveyances by parties to the indenture, is the owner and occupant of land abutting on two of these canals, namely, Broad and North Canals, and there prosecutes the business of iron rolling, and also is owner in fee of nine sixteenths of that part of the bed and soil of Broad Canal, whereon the outlet to the Hampshire Street sewer now lies and empties its contents, and also of a portion of the bed and soil of North Canal. The plaintiff, Kinsley, is, under conveyances by parties to the said indenture, the owner and occupant of land abutting on Broad Canal, and there maintains a foundry.

The navigation of Broad Canal has been impeded by the accumulations of deposits, chiefly of foreign matter therein. By reason thereof the canal has become less than nine feet deep, and by reason of the deposits and the exhalations therefrom the atmosphere in and about the premises of the respective plaintiffs is rendered unhealthy, so as to cause them, their servants and agents, direct, peculiar and material annoyance and inconvenience. These deposits are largely caused by the discharge from three public sewers, built and maintained, under the orders hereinafter stated, at the expense of the city of Cambridge, called the Hampshire Street, the Sixth Street and the Ninth Street sewers.

The Hampshire Street sewer was constructed in 1851, by vote of the city council of Cambridge, under claim of authority conferred by its charter, and at the expense of the city, which has ever since maintained the same. It receives the sewage of a large section of the city. Its outlet enters and discharges into Broad Canal, at the head thereof, upon soil whereof the Boston Rolling Mills owns nine sixteenths.

The Ninth Street sewer was constructed in the autumn of 1872 under orders of the city council, passed in that year, as follows: "Resolved, that the public convenience and necessity require that a strip of land, twenty feet in width, on Ninth Street, from Cambridge Street to Potter Street, and thence in a direct line to Broad Canal, the same being private property, be taken for public use, to wit: for the purpose of laying, making and maintaining common sewers therein. Therefore, Ordered, that the above mentioned strip of land be taken for public use, to wit, for the purpose above mentioned; that no damages be awarded to the owners of the land so taken as aforesaid;" that a sewer be constructed in accordance with plans and profiles prepared by the city engineer, as follows: "In Cambridge Street, from near Boston & Albany Railroad to Ninth Street, thence through Ninth Street to Potter Street,...