City of Cambridge v. Munroe

• Decision Date: 10 April 1879
• Citation: 126 Mass. 496
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: City of Cambridge v. Charles Munroe. Same v. Margaret Emery. Same v. Patrick McGurk. Same v. John McGurk & another

126 Mass. 496

City of Cambridge v. Charles Munroe.

Same v. Margaret Emery.

Same v. Patrick McGurk.

Same v. John McGurk & another

Supreme Court of Massachusetts

April 10, 1879

Argued January 15, 1878; January 11, 1879 [Syllabus Material]

Middlesex. Four actions of contract. The declaration in each case alleged that the defendant was on May 12, 1874, and had since been, the owner of a lot of land in Cambridge described by metes and bounds; that, on the day above mentioned, said lot was, and, until the filling hereinafter named, continued to be, a source of filth, a cause of sickness and a public nuisance, injurious to the public health; that, on the day above mentioned, it was duly adjudged by the board of health of the plaintiff city to be a public nuisance, injurious to the public health, and said board, by a written order, duly ordered the defendant at his own expense to remove said nuisance on or before a time therein named; that this order was duly served upon the defendant, and he had actual notice thereof; that the defendant wholly failed to comply with the order, and thereupon, after such failure, the board caused the nuisance to be removed, and, in so doing, and for that purpose, the plaintiff expended in filling such land a sum named; that the plaintiff has duly demanded the same of the defendant, but the defendant has wholly neglected and refused to pay the same or any part thereof. Writs dated June 21, 1875.

The answer in each case contained a general denial; and averred that, if any such nuisance or filth ever existed, it was not occasioned by the defendant's default, neglect or act but that the plaintiff and its board of health caused such nuisance and filth to accumulate on the premises, to the injury of the defendant.

At the trial in the Superior Court, before Brigham, C. J., without a jury, the following facts appeared:

In 1874, the defendants and others presented a petition to the board of aldermen of the plaintiff city, praying the board "to cause to be abated the nuisance that does now and has existed since the filling in of the land and territory known as West Dock caused by an order from the city of Cambridge under the grade law passed by the Legislature of 1872." This petition was, on March 4, 1874, referred to the board of health, and on May 12, 1874, that board passed the following order: "Ordered, That the several owners thereof be directed, at their own expense, and within twenty days from the service of an attested copy of this order upon them, to abate the nuisance upon the premises owned by them respectively, and situate on Hampshire Street and Webster Avenue, between Portland Street and Bristol Street. Said nuisance being the stagnant water and insufficient drainage." Service of this order was made on May 20, 1874; and on September 7 following, the board of aldermen, acting as the board of health, passed the following order, which was approved by the mayor on September 10: "Ordered that the committee on health be and hereby is authorized and instructed to abate the nuisance existing on estates lying between Hampshire Street, Webster Avenue, Portland and Bristol Streets, by filling the same to grade, the respective owners thereof having been directed by order of this board of health dated May 12, 1874, to abate said nuisance, and failed so to do. The expense thereof to be charged to appropriation for incidental expenses and collected of the respective owners thereof in their several proportions according to law."

By the ordinances of the city of Cambridge, the mayor and aldermen are constituted the board of health. In pursuance of the above orders, the board of health, under the supervision of the civil engineer of the city, caused the premises of the several defendants to be filled by gravel to grade 13 above mean low-water, that is, grade 18 of city of Cambridge base, which is five feet below low-water mark. There was no evidence except as herein appears as to how, or when, or where, or under what law, the plaintiff city established any base of grade. The cost of such filling was as is alleged in the several declarations, and the same was paid from the treasury of the plaintiff city.

The nuisance consisted of stagnant and filthy water, standing from time to time on the premises of the several defendants, caused by cesspools, privies and other sources of filth, and surface water flowing from adjacent land of a higher grade, for which there was no practicable outlet from the defendants' premises into any public sewer, or elsewhere. Before 1874, the premises of the several defendants were sufficiently drained into West Dock, a creek immediately in the rear of their premises, into which the tide-water flowed from Charles River. In 1873, the mayor and aldermen, acting as a board of health, ordered and caused West Dock to be filled with gravel to grade 18, and thereby cut off any drainage of the defendants' premises into West Dock.

The defendants contended, and offered evidence to prove, that the condition of their premises, alleged to constitute a nuisance, was directly due to foul and noisome water and mud which was caused by the backing up of the waters in the act of filling West Dock. But the judge did not find this to be the fact, although he did find that the filling of West Dock to a grade higher than the grade of the defendants' premises, before the filling of 1874, was the principal, if not the exclusive, cause of their condition when the acts of the board of health applied to them, by cutting off their previous means of drainage, and exposing them to the flow of surface water from West Dock as it was left when filled; and that neither the board of health nor the city of Cambridge had provided any means of draining the defendants' premises hitherto, nor was such drainage practicable into any previously established sewer of the...