Chelsea Dye-house & Laundry Co. v. Com.

• Decision Date: 16 October 1895
• Citation: 164 Mass. 350,41 N.E. 649
• Parties: CHELSEA DYE-HOUSE & LAUNDRY CO. v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 350

41 N.E. 649

CHELSEA DYE-HOUSE & LAUNDRY CO. v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

October 16, 1895

COUNSEL

Eugene P. Carver and Edward E. Blodgett, for petitioner.

Wm. D Turner, for respondent.

OPINION

HOLMES J.

The petitioner seeks to recover for the temporary drying up of its pond, caused by the work of constructing a part of the Metropolitan sewer in a public highway. After the work was finished the water returned to the pond. The statutes under which the work was done and the damages are claimed are St.1889, c. 439, and St.1890, c. 270. By section 1 of the latter act, amending section 4 of the former, the commonwealth is to pay "all damages that shall be sustained by any person or corporation by reason of such taking or entering as aforesaid." The entering referred to is the entering of existing sewers, as authorized earlier in the section. With that we have nothing to do in this case. The petitioner's case must stand on the word "taking." But as the sewer was built under a highway, and as the board of sewerage commissioners only purported to take "the right to carry and conduct under the following described land [viz. the highway], and therein to construct, operate, and forever maintain an underground main sewer," etc., no additional servitude was imposed upon the land under the highway. Lincoln v. Com. (June 12, 1895) 41 N.E. 112. No right of any sort was taken in the plaintiff's land.

But we do not need to decide that no damages can be recovered in any case, under this act, where property not taken in terms is injured in a permanent way. The question is one of construction, and may be left open until it is necessary to decide it. It is enough to say that it is not disposed of by any authority which has been called to our attention. There are further considerations in the case at bar. So far as appears, nothing has been done which would have been actionable if no statute had been passed. It is true that some statutes have been interpreted as giving damages for harm for which no action could have been maintained at common law. But the fact mentioned is a circumstance to be considered. The damage in this case not only would have been damnum absque injuria at common law, but it was temporary in its nature. It is not a permanent consequence of maintaining the sewer, but was merely a temporary interruption, caused by the work upon it. Whatever...