MaCginnis v. Marlborough & Hudson Gas Co.
| Decision Date | 01 April 1915 |
| Citation | 220 Mass. 575,108 N.E. 364 |
| Parties | MacGINNIS v. MARLBOROUGH & HUDSON GAS CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. J. Shaughnessy, of Marlboro, for plaintiff.
F Delano Putnam, of Boston, for defendant.
The plaintiff's house was on the easterly side of Maple street, and about five feet from the street line. On the opposite side of the street, and about two hundred feet in a northwesterly direction from this house was a natural depression of the ground. Here the surface water from the surrounding territory collected at certain times of the year and formed a pool or pond that was about one hundred feet long, thirty feet wide and two feet deep. The bottom of the pond was always moist and muddy and never was cultivated. All the water that did not overflow into the gutter on the westerly side of Maple street remained in the pond until it either evaporated or seeped into the ground, joining the ground water.
The defendant, under a license duly issued by the city, opened a trench three and one-half feet deep the whole length of Maple street and about ten feet from the easterly line of the street, for the purpose of laying a line of gas pipe. In connection with this work the contractor employed by the defendant blasted a ledge which extended from a few feet north of the plaintiff's house in a southwesterly direction across the street. When the frost in the ground began to thaw in the last days of March, 1913--which was about two months after the gas pipe was laid--and soon after the contractor had used a steam roller on the surface, water in considerable quantities began to percolate into the plaintiff's cellar through and under the wall. The city pumped it out daily for twenty-six days, during which time the water in the pond gradually receded. The jury specially found that the plaintiff's cellar was flooded because the ledge was blown out in the trench near the plaintiff's house; and also found that the work on the trench was not done negligently.
DE COURCY, J. (after stating the facts as above).
The easement in an existing highway permits public uses on and beneath the surface of the way of a far reaching and ever increasing character. Pipes, sewers and subways impose no additional servitude upon the land in the public street for which the owner of the fee can claim damages. Cheney v Barker, 198 Mass. 356, 84 N.E. 492, 16 L. R. A. (N. S.) 436; Sears v. Crocker, 184 Mass. 586, 69 N.E. 327 100 Am. St. Rep. 577; Bishop v. North Adams Fire District, 167 Mass. 364, 45 N.E. 925; Lincoln v. Com., 164 Mass. 1, 41 N.E. 112. As the appropriation of the space below the surface is not an invasion of his common law rights, the abutter cannot maintain an action of tort for an injury caused thereby, unless the construction work is done negligently or improperly. A common instance of this is where the work necessarily causes surface water to flow, or underground water to percolate, upon the land of an abutter. Kennison v. Beverly, 146 Mass. 467, 16 N.E. 278; Barry v. Lowell, 8 Allen, 127, 85 Am. Dec. 690; Flagg v. Worcester, 13 Gray, 601; Holleran v. Boston, 176 Mass. 75, 57 N.E. 220. And see 'Ways and Waters in Massachusetts,' 28 Harvard Law Rev. 478. It is not disputed here that the municipality duly gave consent to the defendant to lay the gas pipes in Maple street, and that the location of the trench was designated by the superintendent of streets, under the terms of the vote of the board of mayor and aldermen. The defendant was thereby authorized to make use of the street under the public right. R. L. c. 110, § 76. Pierce v. Drew, 136 Mass. 75, 81, 49 Am. Rep. 7; Lincoln v. Com., 164 Mass. 1, 10, 41 N.E. 112.
On the facts shown the defendant has violated no common law right of the plaintiff. In many instances where there is no recovery at common law the Legislature has provided indemnity for injury suffered by abutters and others. Thus compensation is recoverable under the highway statute for injury caused by surface water flowing upon an abutter's land by reason of raising the grade of a street. R. L. c. 51, § 15. Woodbury v. Beverly, 153 Mass. 245, 26 N.E. 851. Under...
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