Kenney v. Consumers' Gas Co. Attorney Gen.

• Decision Date: 11 September 1886
• Parties: KENNEY v. CONSUMERS' GAS CO. ATTORNEY GENERAL, by Information, v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 417

8 N.E. 138

KENNEY

v.CONSUMERS' GAS CO.

ATTORNEY GENERAL, by Information,

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

September 11, 1886.

Bill in equity to restrain the defendant from digging up Terrace street, in the city of Boston; and information by the attorney general, at the relation of James W. Kenney, for an injunction to restrain the defendants from committing the same acts. Hearing in the supreme court before DEVENS, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

B.F. Butler, for plaintiffs.

E.R. Hoar and R.M. Morse, Jr., for defendant.

C. ALLEN. J.

The first of these cases is a bill in equity, brought by a private individual, seeking to restrain the defendants from digging up Terrace street, in Boston, in front of his brewery, for the purpose of laying gas-pipes. The only averments of damage to the plaintiff are that he requires, for the convenient transaction of his business, the full use of the street in the neighborhood of his brewery for the going and coming of loaded teams, to convey the products of his brewery; that on the twelfth day of May, 1885, (which was the day of the commencement of the suit,) a large quantity of iron pipe was deposited along said street, adjacent to and in front of his property, and a body of men, with pick-axes and shovels, appeared in front of his property, and began to destroy, and did destroy, the surface of the highway in front of and adjacent to the same, and to excavate a longitudinal trench in said highway; that said men were servants of the defendants; and that the said opening of the highway adjacent to his said property had injured and impaired his facilities for doing business, and will continue to injure and impair the same, and be a great detriment to his property and business, and cause him great loss and damage, and that the said opening of the highway is a private nuisance, causing him especial damage of an irreparable character. By the answer of the defendant, which was admitted to be true, it appeared that on the seventeenth of November, 1884, by a vote of seven to three, the aldermen of the city passed an order “that the Consumers' Gas Company of Boston is hereby granted the consent of the mayor and aldermen of the city of Boston, and is authorized and empowered, to dig up and open the ground in the streets, lands, highways, and public places thereof, so far as is necessary to accomplish the objects of the said corporation, and to lay and maintain pipes therein, subject to the provisions and obligations contained in the Public Statutes of Massachusetts, and the ordinances of the city of Boston. *** Said company shall, upon opening the ground in any of the public places under this order, except for necessarily immediate and current repairs, give notice in writing, to the superintendent of streets, of its intention to do so, and all work done by authority of this order shall be done under the supervision and inspection of the superintendent of streets.” The parties agreed that this order was not signed by the mayor, and that he undertook to veto the same by a message to the board of aldermen, November 24, 1884, in which he gave his reasons for declining to approve the order. The defendant, by vote, accepted, assumed, and agreed to perform the burdens and obligations imposed upon it in the above order, and gave notice thereof to the mayor and aldermen; and on May 11, 1885, the day before the commencement of the work complained of, gave to the superintendent of streets written notice of its intention to proceed forthwith to dig up and open the ground in Terrace street. It further appeared, by the averments of the answer, that the acts of the defendant were done in good faith, in prosecution of the business for which the corporation was organized, and in a proper and workmanlike manner, and that they were necessary to accomplish the objects of the corporation. There is nothing in the case to show that the acts of the defendant had caused, or were likely to cause, any wanton or unnecessary injury to the plaintiff, or any greater inconvenience than would result from a temporary and brief opening of the street for the purpose of laying gas-pipes therein. Even if it be assumed that the injury which the plaintiff suffered was special and peculiar, differing in kind from the injury or the inconvenience to the public at large, the facts by no means show a serious, permanent injury, which cannot be adequately compensated in damages, and which calls for the issuing of an injunction. Cummings v. Barrett, 10 Cush. 186;Washburn v. Miller, 117 Mass. 376;Parker v. Winnipiseogee Co., 2 Black, 545; 2 Story, Eq. § 925; 2 Pom.Eq. § 1350.

The second case is in its essential character an information and bill, quite informal in its structure, brought in the name of “the attorney general, upon the relation of James W. Kenney,” seeking the same result as the bill brought by Kenney as an individual. The information is not brought on behalf of the commonwealth, nor at the relation of the city, or of any of its officers. Some of the averments...