Cavanagh v. City of Boston

• Decision Date: 19 June 1885
• Citation: 1 N.E. 834,139 Mass. 426
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John Cavanagh & another v. City of Boston

139 Mass. 426

1 N.E. 834

John Cavanagh & another v. City of Boston

Supreme Judicial Court of Massachusetts

June 19, 1885

Argued March 10, 1885 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk.

Tort for injuries occasioned by the construction of a dam across South Bay, in Boston. At the trial in the Superior Court, before Staples, J., the plaintiffs' evidence tended to show the following facts:

At the time of the acts complained of, the plaintiffs were, and have ever since been, the owners in fee of the northerly half of Wales Island and the flats adjacent thereto, situated in said South Bay.

At a meeting of the common council of the city of Boston, held on June 3, 1880, the following order was passed: "Ordered, That the board of health be requested to cause to be abated the nuisance at present existing in the South Bay, east of the New York and New England Railroad, and the expense attending the same to be charged to the appropriation for health."

At a meeting of the board of aldermen of said city, held June 10, 1880, the said order was referred to the committee on health, in concurrence with the vote of said council, passed June 3, aforesaid. At a meeting of said board of aldermen, held July 6, 1880, the eighth annual report of the board of health of the city of Boston, dated May 1, 1880, made as provided in the Public Statutes, was received and sent down; and at a meeting of the common council, held July 8, 1880, said report was placed on file. This report, among other matters referred to, contained the following:

"The flats between Dorchester Avenue and the New York and New England Railroad, near Washington Village, are left bare at low tide, and are a source of very offensive odors. The deposit from sewers, and the unclean filling which takes place more or less each year, add very much to their offensive condition. Each year since complaints have been made, the board of health have added clean gravel to cover the worst part of the nuisance, and with good effect; but to remedy the whole evil would involve an expenditure of money too large for the appropriation of this department. If the whole of those flats above the Norway Iron Works could be kept covered with water to a depth of two feet by means of a dam, we think that all reasonable complaints would subside; but, so far as we have been able to ascertain from good authority, the great cost of the dam and the risk of damage to adjoining structures would not justify us in the attempt. Clean gravel and deep water alone will effectually abate the nuisance which must till then continue to arise from such filthy mud. A plan is now under advisement by the joint committee on health, by which it is hoped that an inexpensive dam can be built from the rear of the Norway Iron Works on Dorchester Avenue to the New York and New England Railroad, and which would keep the flats covered at all times."

At a meeting of the common council of said city, held March 29, 1880, the following petition, signed by Daniel J. Cross and others, was presented: "To the city council of the city of Boston: We the undersigned respectfully represent that a portion of South Bay, lying between Dorchester Avenue and the New York and New England Railroad, has become an intolerable nuisance; we therefore request your honorable body that you will take immediate action to abate said nuisance by flowage or otherwise."

At a meeting of said common council, held July 12, 1880, said committee on health, to whom was referred the petition of said Cross, reported thereon, that the subject had been duly considered and by them referred to a sub-committee, which had consulted the city engineer, who submitted a statement that a temporary dam as high as grade 5, city base, could be built, which would flood to a depth of two feet, and the estimated cost of which would be $ 4600; and the committee recommended the passage of the accompanying preamble and order: "Whereas, the board of health has declared a nuisance exists, consisting of offensive flats on the territory between the track of the New York and New England Railroad Company and Dorchester Avenue, which can be abated by the construction of a dam at an estimated cost of $ 4600, and as the annual appropriation granted to said board does not contemplate such an expenditure, it is hereby ordered, that the committee on finance be directed to furnish the means for the abatement of the aforesaid nuisance." This report was accepted, and the said order passed by both branches of said city government.

At a meeting of the board of aldermen, held July 26, 1880, the following report was submitted by the committee of finance of said board: "South Bay Nuisance. The committee on finance to whom was referred the report of the committee on health, covering an order that this committee furnish the means for the abatement of the nuisance existing on the territory between the track of the New York and New England Railroad and Dorchester Avenue, would respectfully report the accompanying order granting the request: 'Ordered, that the auditor of accounts be and he hereby is authorized to transfer from the reserved fund the sum of $ 4600, and that said sum constitute a special appropriation for the purpose of constructing a temporary dam across South Bay, between the New York and New England Railroad track and Dorchester Avenue, for the abatement of the nuisance on the flats therein located; and that the board of health is hereby authorized to have said temporary dam constructed at an expense not exceeding the sum herein provided.'" This order was passed.

At a meeting of the common council, held July 29, 1880, said report and order for a transfer of $ 4600 from the reserved fund for the construction of a temporary dam across South Bay, between the New York and New England Railroad track and Dorchester Avenue, for the abatement of a nuisance, was passed in concurrence.

At a meeting of the common council, held September 23, 1880, it was ordered that the committee on health be requested to report to the city council why the nuisance existing in the South Bay has not been abated, an order having been passed and the money appropriated for the same, July 29. This order of September 23 was passed by the common council, and by the board of aldermen in concurrence.

At a meeting of the board of aldermen, held November 1, 1880, said joint committee on health reported that "no further action is required on the order to abate a nuisance on South Bay, said nuisance now being abated;" which report was accepted, and the same was sent down to the common council. At the last-named meeting of the board of aldermen, the committee on health reported on said order of inquiry respecting the nuisance on South Bay flats, "that the cause of delay in abatement of the nuisance was unavoidable. The work is now progressing and will be completed in a few days." This order was likewise accepted and sent down to said council. At a meeting of said council, held November 4, 1880, both the last-named reports were accepted in concurrence.

All of the foregoing orders were duly approved by the mayor of said city. On September 8, 1880, Henry M. Wightman, the city engineer of Boston, presented a petition to the board of harbor commissioners of the Commonwealth, for a license "for the construction of a temporary dam in the South Bay from the New York and New England Railroad embankment to Wales Island, so called, . . . . for the purpose of abating a nuisance existing in that portion of the South Bay south of the dam." Said board thereupon granted the license.

On or about September 15, 1880, workmen, acting under the direction of Henry M. Wightman, who was at this time city engineer constructed the dam in question, in accordance with the license of the harbor commissioners, and the cost of building the dam was paid for out of said appropriation. The easterly portion of said dam was built across the flats, and upon a part of the portion of the island owned by the plaintiffs, by driving piles and pile-sheeting into the flats and island, and with gates in the part known as Pine Island Channel, which adjoined said flats. By reason of the omission properly to ballast said dam, said gates were washed away, and the dam was weakened. After this occurred, a large amount of stones and slag were strewn upon the flats along both sides of said dam, and a quantity of larger stones were put into the space in Pine Island Channel, which was left open by the washing away of the gates. Said dam was not securely built, and the water has since the erection of the dam gradually undermined the same, and is now flowing out in large quantities underneath the dam, and washing away the bottom of the flats of the plaintiffs. By reason of the confinement of the waters of South Bay by said dam, there has been carried away by the rushing of said water by and over the easterly end of said dam, a large portion of the island owned by the plaintiffs; and this washing away might have been prevented by the building of the dam higher at that end of the island. The tide ebbs and flows in South Bay and about said island; and, before the erection of this dam, the plaintiffs used the island for keeping and storing piles and other timber owned by them, partly together and in part separately; and such use has been to a large extent prevented, the approach to the island from the harbor of said city has been obstructed, and the free flow of water about the...