Daley v. Town of Watertown

• Decision Date: 17 May 1906
• Citation: 192 Mass. 116,78 N.E. 143
• Parties: DALEY et al. v. TOWN OF WATERTOWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 116

78 N.E. 143

DALEY et al. v. TOWN OF WATERTOWN.

Supreme Judicial Court of Massachusetts, Middlesex.

May 17, 1906

COUNSEL

Jas J. McCarthy, for plaintiff.

John E Abbott, for defendant.

OPINION

KNOWLTON C.J.

The plaintiff is the owner of a house and lot in Watertown fronting on a private way twenty feet wide leading into Arlington street. He built this house in May, 1891. Across the way is a shallow pond with no outlet, called Puffer's pond, the nearest part of which is seventy feet distant from the plaintiff's land. In its natural condition its surface is 7.58 feet below the bottom of the cellar of the plaintiff's house. Previously to February 28, 1902, the pond had not overflowed the private way or the plaintiff's land, or caused him any inconvenience in the use and enjoyment of his property. On that day it overflowed its natural boundaries, and rose to such a height that on March 1st the private way and about three-fourths of the plaintiff's land were covered with water, which entered the cellar of the dwelling house and filled it to a depth of from three to four feet. The water was very filthy. It receded but slowly and remained in the cellar for about a week, and caused serious damage to the house. There was also evidence that again, in 1903, the pond overflowed and covered a part of the plaintiff's lot, and it also in 1904 and 1905 covered a portion of the private way and a small part of the lot near the way. On the first occasion of the overflow the water covered lots of many other persons, and entered outhouses and privies erected on these lots, and the cellars and a basement of other houses.

In the year 1901 the defendant town, acting under an order of the county commissioners, did the work of widening Belmont street in that part which lay within the boundaries of the town, and changed the direction of the flow of surface water over a part of the land which was added to the street. Some years previously to the date of the order of the county commissioners the defendant town had constructed, and has ever since maintained, a 15-inch pipe drain connecting with an open ditch from the corner of Arlington and Belmont streets, to carry water from the streets through land of Joshua Cooledge, a distance of two hundred feet or more, to Puffer's pond. On May 14, 1891, the defendant obtained from Cooledge a license in writing to continue the use of this drain, and, if necessary, to construct a new drain over his land, to carry the water to Puffer's pond. There was evidence from Cooledge that the natural course of the drainage of the land added to Belmont street was in another direction, to a larger pond called Bird's pond.

The defendant's superintendent of streets and...