Harrington v. City of Worcester

• Citation: 72 N.E. 326,186 Mass. 594
• Parties: HARRINGTON v. CITY OF WORCESTER.
• Decision Date: 22 November 1904
• Court: United States State Supreme Judicial Court of Massachusetts

186 Mass. 594

72 N.E. 326

HARRINGTON v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

November 22, 1904

COUNSEL

Frank Bulkeley Smith T. H. Gage, Jr., and Frank F. Dresser, for plaintiff.

Arthur P. Rugg and J. Fred Humes, for defendant.

OPINION

KNOWLTON, C.J.

This case is before us on a demurrer to the plaintiff's declaration, charging the defendant with carelessly and negligently constructing its sewers and drains, and carelessly and negligently and improperly failing to purify the waters discharging through the sewers and drains before discharging them on the plaintiff's premises, so that the water flowing through the plaintiff's mill pond has become corrupted, impure, and filthy, and sewage has been placed upon the plaintiff's premises and in his mill pond, and other damages have been caused to him and to his property. Under an order of the court upon the defendant's motion, specifications were filed setting forth particularly the matters relied on, and the defendant filed a second demurrer to the declaration and specifications. At the hearing upon the declaration specifications, and demurrers, it was agreed by the plaintiff, as appears by the report of the presiding justice that the declaration and specifications be modified by allegations as follows: 'That when chapter 331 [page 309] Laws 1886, was enacted, it was necessary for the city of Worcester to adopt a system of sewage purification, independent of the construction of its sewers, and to take tracts of land therefor, in order to prevent the pollution of the Blackstone river, arising from the appropriation and use of Mill brook as a sewer, in the manner authorized by chapter 106 [page 541] Laws 1867; that there has been no negligence on the part of the city, unless negligence be inferable from the fact that prior to 1886 the city made no attempt to purify its sewage before discharging it into the Blackstone river through said Mill brook, and that since 1886 it has failed to adopt a system of purification adequate in size and proper in design to accomplish the purification of its sewage, although such system might have been adopted and constructed but would have involved the expenditure of larger sums of money, and taking larger tracts of land. In 1886 and thereafter the city of Worcester, acting under chapter 331 [page 309] Laws 1886, established purification works, which necessitated its taking large tracts of land and making large expenditures of money, and expended for land and constructions over one million five hundred thousand dollars, and annually sums varying from fourteen thousand dollars to fifty-three thousand dollars for maintenance. Except as modified hereby, all allegations of the declaration and specifications stand.' The judge overruled the demurrers, the defendant appealed, and the judge reported to this court the questions of law raised by the appeal, with a stipulation that, if the demurrer should be sustained, judgment should be entered for the defendant. This agreement does not appear of record, except in the report, and we infer that it was made orally at the hearing, and treated as a modification of the plaintiff's pleadings. It would have been more regular to have put the agreement in writing, and to have filed it as an amendment of the declaration or specification; but it has been embodied in the written report of the justice, which is a part of the record, and adopted in that form by the parties. We will therefore treat it as an amendment of the declaration.

The effect of the declaration and specifications, so modified, is, as we interpret them, to present an averment that the plaintiff suffered damage in his property from the pollution of the stream, and the discharge of sewage through it upon his land, but that prior to the action of the city under St. 1886, p. 309, c. 331, there has been no negligence on the part of the city, either in the construction or management of its sewers or otherwise, unless negligence is inferable from the fact that prior to 1886 the city made no attempt to purify its sewage before discharging it into the Blackstone river through Mill brook.

The first question is whether negligence is inferable from the fact that sewage in the water caused the plaintiff damage coupled with the fact that the city made no attempt to purify its sewage before discharging it into the river. The law applicable to the use of Mill brook by the city of Worcester, under the statutes, has often been considered by this court. Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 592; Butler v. Worcester, 112 Mass. 541; Washburn Manufacturing Company v. Worcester, 116 Mass. 458; Workman v. Worcester, 118 Mass. 168; Woodward v. Worcester, 121 Mass. 245; Morse v. Worcester, 139 Mass. 389, 2 N.E. 694; Washburn & Moen Manufacturing Company v. Worcester, 153 Mass. 494, 27 N.E. 664. St. 1867, p. 541, c. 106, authorized the city of Worcester to take and use Mill brook for the purpose of receiving sewage and discharging it into the river below; and the case last cited holds that some contamination of the water in the river must have been contemplated by the Legislature as necessarily incidental to this use, and that damages for such contamination could be recovered by riparian proprietors under the statute. On the other hand, in Morse v. Worcester, 139 Mass. 389, 2 N.E. 694, it was decided that the city was bound to use due care in the construction and management of its sewers, so as not to cause any unnecessarily injurious consequences to others, and that 'if it is practicable to use any methods of constructing the sewer, and, as a part of the construction, of purifying the sewage at its mouth, at an expense which is...