Cabot v. Kingman

• Decision Date: 16 June 1896
• Citation: 44 N.E. 344,166 Mass. 403
• Parties: CABOT v. KINGMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 403

44 N.E. 344

CABOT v. KINGMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 16, 1896

COUNSEL

Moorfield Storey and Henry B. Cabot, for plaintiff.

Wm. D Turner, for defendants.

OPINION

FIELD C.J.

It does not appear that any portion of the plaintiff's land was taken by the defendants. They took the right to construct operate, and forever maintain an underground main sewer etc., in a part of Marginal street, a public street or highway in the city of Chelsea. The plaintiff did not offer to prove that he owned the fee of the soil in the street where the right to construct the sewer was taken. But, even if he owned the fee, it was in effect decided in Chelsea Dye-House & Laundry Co. v. Com., 164 Mass. 350, 41 N.E. 649, that by the taking no additional servitude was imposed upon the land under the highway, and that no right of any sort was taken in the plaintiff's land. The plaintiff offered to prove that he owned and was in possession of land on said Marginal street, with certain brick buildings standing thereon, along the line of the street; that the defendants made a contract with one Orin P. Roberts to construct the sewer opposite the plaintiff's premises, and that Roberts constructed it according to the terms of the contract, with due care; that the soil there consisted of about 3 feet of gravel filling upon about 10 feet of peat and silt, below which was very fine sand and silt, or quicksand; that the average depth of the trench was about 26 feet, and the average width on top about 14 feet, and on the bottom about 12 feet. The plaintiff also offered to prove that in this sand was a great deal of water; that the trench was kept free from water by means of buckets and pumps; that large quantities of the plaintiff's soil were removed by this means, so that the surface of his premises, being deprived of its subjacent and lateral support, cracked and settled, and his buildings were injured; that the defendants knew, or ought to have known, what was the nature of the soil, and that the construction of the sewer in the manner provided for in the contract would necessarily result in injuring the plaintiff's property in the manner described, unless unusual and extraordinary precautions were taken; and that they were negligent in making the contract without requiring the contractor to take unusual and extraordinary precautions to prevent such injury. Whatever may be true of percolating waters, we think that the defendants had no right to take away the soil of the plaintiff in land which they had not taken under the statutes, and that it is immaterial that the soil was removed by means of pumps from the trench into which it had fallen by its own weight, or had been carried by percolating water. We are unable to distinguish the case from one where the soil falls in from the surface in consequence of an excavation in the adjoining land. The plaintiff, if the facts be as he offered to prove, has been deprived of the lateral support to his land, in consequence of which the quicksand has run from under the surface of his land into the trench, and has been removed by means of pumps, and this has caused the surface to settle and crack. It was the duty of the defendants to prevent this in some manner, if they did not take the plaintiff's land.

The defendants, in the brief of their counsel, as we understand concede that the statutes under which the right to construct the sewer in Marginal street was acquired make no provision for the payment of such damages to land as the plaintiff offered to show. This seems to result from the decision in Chelsea Dye-House & Laundry Co. v. Com., ubi supra; in Lincoln v. Com., 164 Mass. 1, 41 N.E. 112; and in Id., 164 Mass. 368, 41 N.E. 489. The cases of Trowbridge v. Brookline, 144 Mass. 139, 10 N.E. 796; Parker v. Railroad, 3 Cush. 107; and Dodge v. County Com'rs, 3 Metc. (Mass.) 380,--were decided under statutes materially different, as to damages, from St.1889, c. 439, under which the defendants in the case at bar acted. The statutory provisions as to damages in each of those cases appear in the opinion in each case. In the present case the plaintiff's rights and the defendants' liability must be determined by the common law. The extent of the right in this commonwealth of a landowner to the...