Gray v. Board of Alderman of Boston

• Decision Date: 13 May 1885
• Citation: 31 N.E. 734,139 Mass. 328
• Parties: William Gray, Jr. v. Board of Aldermen of Boston[2]
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 328

31 N.E. 734

William Gray, Jr. v. Board of Aldermen of Boston^[2]

Supreme Judicial Court of Massachusetts

May 13, 1885

Argued March 10, 1885

Suffolk.

Petition for a writ of certiorari to quash an order of the board of aldermen of the city of Boston, approved on August 19, 1874 assessing the petitioner a proportional part of the expense of constructing a sewer between Dudley Street and Quincy Street, in that part of Boston formerly Dorchester. The case was reserved by Devens, J., for the consideration of the full court, and appears in the opinion.

Petition dismissed.

G. O Shattuck, for the petitioner.

A. J Bailey, for the respondent.

W Allen, Colburn, & Holmes, JJ., absent. Devens, J.

OPINION

Devens, J.

By the St. of 1869, c. 111, which repealed §§ 1-3 of the Gen. Sts. c. 48, cities and towns were authorized to lay out such main drains and common sewers as are deemed necessary for public convenience or health. Lands might be taken therefor by proceedings similar to those which are had in laying out highways; and all persons suffering damages thereby were to have the same rights and remedies for ascertaining the same that existed in the case of laying out highways or town ways. This authority to lay out sewers was properly exercised in Boston by the board of aldermen. Gen. Sts. c. 19, § 17.

By the Gen. Sts. c. 48, § 4, every person who entered his own drain into the common sewer, or by more remote means received benefit therefrom, was liable to pay his proportional part of the expense of constructing and repairing the same, to be ascertained as therein provided. In the city of Boston not less than one quarter part of the expense was to be paid by the city, and not included in the charge made to those using such sewers. § 7.

The St. of 1873, c. 205, provided, in § 1, that "the board of aldermen of the city of Boston may, for the purposes of sewerage and drainage, take and divert the water of any streams or water-courses within the limits of said city, and devote the same to the purposes aforesaid; and may take all necessary land to widen, deepen, or straighten the channel of such water-courses, and pave, enclose, and cover the same." Section 2 provided for the ascertainment and recovery of damages by those who might suffer them.

The St of 1873 was not intended to repeal the then existing statutes, or to deprive the aldermen of any power which they then had in regard to the subject. It conferred an additional power, and is to be construed in connection with, and as supplementary to, the existing legislation. Its object was to enable the aldermen, for the purposes of drainage and sewerage, to take and divert the waters of any brook in the city, and this whether the sewer in which they were used, or to which they were diverted, was or was not of benefit to the owners thereof. It had been held in Bennett v. New Bedford, 110 Mass. 433, that a structure intended to convey the waters of a natural stream as well as to be used as a common sewer did not thereby lose its character as a common sewer. While authority was not needed to conduct water, either that of a natural stream or of the surface, through a common sewer, the right to take and divert a stream for the purpose of sewerage, and devote it thereto, was deemed to require additional legislation. When thus taken and diverted, the authority was given properly to prepare the channel through which it would pass, by taking the necessary land, and by properly paving,...