Buckley v. City of New Bedford

• Decision Date: 25 November 1891
• Parties: BUCKLEY v. CITY OF NEW BEDFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 64

29 N.E. 201

BUCKLEY v. CITY OF NEW BEDFORD.

Supreme Judicial Court of Massachusetts, Bristol.

November 25, 1891

COUNSEL

H.M. Knowlton and F.A. Milliken, for plaintiff.

W.H Cobb and L. Le B. Holmes, for defendant.

OPINION

HOLMES J.

This is an action of tort to recover damages against the city of New Bedford for having created a nuisance on the plaintiff's land. The plaintiff's case was that the defendant constructed a system of sewers with so narrow an outlet that the sewage, and the waters of a natural stream which were taken into the sewer, were set back, and when the plaintiff entered his drain into the sewer his cellar was overflowed through his drain. As we understand the report, the size of the outlet of the sewer was fixed by the mayor and aldermen at the time of the construction. The judge below ruled that the action could not be maintained.

The insufficiency of the outlet, by itself alone, did the plaintiff no harm. If he had not connected his drain with the sewer, so far as appears his land would not, and could not have been flowed. We are not called on to consider whether in case of the adoption of a system resulting in destruction or serious damage to the plaintiff's land, under a statute providing no compensation, the rule would apply that an action does not lie against a city for a defect in the plan or system of drainage adopted by the mayor and aldermen, (Bates v. Inhabitants of Westborough, 151 Mass. 174, 182, 23 N.E. 1070; Child v. Boston, 4 Allen, 41;) or whether somebody, not necessarily the city, would be liable under such circumstances. See Merrifield v. Worcester, 110 Mass. 216; Johnston v. District of Columbia, 118 U.S. 19, 6 S.Ct. 923; Seifert v. City of Brooklyn, 101 N.Y. 136, 4 N.E. 321; Ashley v. Port Huron, 35 Mich. 296; 2 Dill.Mun.Corp. (4th Ed.) §§ 1046, 1047, 1051.

The plaintiff's cause of action, if any, depends upon and springs out of his right to connect his drain with the sewer. If that connection was wrongful, he could not complain of the consequences of making it. Unless he had a right to open the sewer, the city did him no wrong by keeping it full of sewage and choked. It does not follow, necessarily, that he stands better because he acted rightfully in making the connection. We assume in the plaintiff's favor that he had a license; that he had paid or in some way had given a consideration for it; and that his right, whatever its exact nature, was one which he could insist on exercising in specie to some extent, and which could not be revoked at the mere whim of the defendant. Still his right was only to connect with the existing system, such as it was. Obviously he could not complain that the system was not at a lower grade, and would not drain his land below the level at which the sewer was established. Child v. Boston, 4 Allen, 41, 51, 52. It seems to us that for the same reason he could not complain that the sewer would not drain his land below a certain grade above its own level, if its inability to do so was due to the plan on which it was constructed. It cannot matter to which part of the plan the sewer owes its inability to drain lower, whether the level at which it is constructed, the degree of its pitch, or the size of its mouth.

If this be so, it follows that the...