Manning v. City of Lowell

• Decision Date: 23 November 1880
• Citation: 130 Mass. 21
• Parties: William Manning v. City of Lowell
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

130 Mass. 21

William Manning v. City of Lowell

Supreme Court of Massachusetts

November 23, 1880

Argued September 1, 1879

Middlesex.

Exceptions sustained.

J. N Marshall & M. L. Hamblet, for the plaintiff.

D. S Richardson & G. F. Richardson, for the defendant.

Lord J. Colt & Soule, JJ., absent.

OPINION

Lord, J.

We are by no means certain that the construction which we put upon the bill of exceptions in this case may not do injustice either to the judge who tried the cause or to one of the parties. Inasmuch, however, as the result at which we have arrived leads only to the re-trial of the cause, any misapprehension under which we may labor can be corrected in a subsequent trial.

The form of statement which raises the doubt as to the correctness of our interpretation is not to be commended. When, as is frequently the case now, the law and the fact are to be passed upon by the same tribunal, it becomes important that the bill of exceptions should distinctly show what was passed upon as fact and what was ruled as law. Throughout this long bill of exceptions, substantially every statement is prefixed with the words "it appeared." From these words, the natural inference would be that what followed them was to be taken as fact. At the close of several pages of such recital is this clause: "Under the aforegoing evidence the presiding judge ruled that the plaintiff was not entitled to recover upon either count in his declaration, and thereupon found for the defendant." The bill of exceptions then proceeds, "to which ruling and finding the plaintiff excepts."

We think the construction which we ought to give to this bill of exceptions is that, assuming all the facts stated in the bill of exceptions to be true, they do not of themselves show a cause of action in the plaintiff, nor authorize any such inference of fact as would warrant a jury in finding for the plaintiff.

This is an action of tort. The plaintiff claims to recover against the defendant upon three distinct grounds, although one of the grounds seems to have been waived. The first ground is, that by the construction of a sewer by the city under lawful authority, either through fault of the system of sewerage adopted, or by reason of the "wrongful acts, gross carelessness and wanton neglect of their servants" in the construction of the sewer, the plaintiff was damnified. The second cause of complaint is, that the street in Lowell known as School Street leads down a long and steep declivity, and that there enter into that street four cross streets, and that by the sides of School Street and by the sides of the cross streets paved gutters (which the plaintiff claims to be artificial watercourses) have been made by the defendant, by means of which vast quantities of water find their way into a natural watercourse which crosses School Street into the land of the plaintiff, and overflows his land, depositing thereupon not only large quantities of water, but of mud, filth and debris, to his serious injury. The third ground of complaint is, that, by excavations made for the laying of sewers, springs which fed his well had been cut off, so that the well, which before the act of the defendant had furnished him with an abundant supply of water, was by that act made dry. This last ground of complaint, at least as a distinct cause of action, we understand to be waived.

Although it is not necessary to pass upon the question definitively we are inclined to the opinion that, so far as the claim is made for the construction of the sewer, no action of tort can be maintained, but that the remedy of the plaintiff, if he has been damnified, would be under the St. of 1869, c. 111. This act authorizes the mayor and aldermen of cities and the selectmen of towns to make and maintain all such main drains and common sewers as they shall adjudge to be necessary; and for this purpose authorizes them to enter upon private property and to appropriate the same, and gives to those...