Morash & Sons, Inc. v. Com.

• Citation: 363 Mass. 612,296 N.E.2d 461
• Parties: , 5 ERC 1397 MORASH & SONS, INC. v. COMMONWEALTH.
• Decision Date: 14 May 1973
• Court: United States State Supreme Judicial Court of Massachusetts

Page 461

296 N.E.2d 461

363 Mass. 612, 5 ERC 1397

MORASH & SONS, INC. v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 9, 1972.

Decided May 14, 1973.

Charles P. Burgess, Waltham, for plaintiff.

Christopher H. Worthington, Asst. Atty. Gen., for the Commonwealth.

Before TAURO, C.J., and REARDON, HENNESSEY, KAPLAN and WILKINS, JJ.

HENNESSEY, Justice.

This is a petition in equity brought against the Commonwealth by Morash & Sons, Inc. (the corporation), seeking to enjoin the Commonwealth from storing road salt on State property and seeking damages resulting from the pollution of the corporation's water supply by such storage.

The Superior Court judge heard evidence only on the issue of liability but then, failing to pass on the merits, dismissed the petition ruling that the doctrine of sovereign immunity was a complete defence to the action. The corporation appeals from this dismissal. Since the dismissal has the procedural effect of sustaining a demurrer, we assume as true the facts alleged by the corporation.

The corporation owns 21.46 acres of land located on Lawrence Street, North-borough. There is a single family dwelling and a building containing an office and warehouse on this land. The property was purchased in 1969, and is the principal place of business of the corporation.

South of and adjacent to the property of the corporation are three parcels of land owned by the Commonwealth which the Department of Public Works (D.P.W.) uses as a storage and maintenance depot. The D.P.W. has stored road salt in open piles on this land for almost fifty years, protected until recently by temporary coverings only.

The water supply for the dwelling house, office, and warehouse is from two separate wells on the corporation's property. The normal course of water drainage in the area is from south to north, and therefore, drainage from the salt piles has infiltrated and polluted the corporation's water supply. Water from its pipes is undrinkable, unfit for bathing, washing dishes or clothes, and because of the corrosive effect of the salt solution, the pipes, fittings and fixtures are ruined. While the corporation has notified the D.P.W. of this pollution, the D.P.W. has refused to acknowledge responsibility and has refused to take corrective action.

The corporation argues that the Commonwealth's use of its land constitutes a private nuisance. The issue is whether the Commonwealth as an owner of or in control of real property can be liable for creating or permitting a private nuisance to the real property of another. The corporation contends that (1) the Commonwealth abrogated its sovereign immunity in tort as well as contract actions by the express provisions of G.L. c. 258, § 1; (2) municipalities of the Commonwealth are liable for private nuisances and there is no logical reason why the Commonwealth should not also be liable for private nuisances; and (3) as a matter of sound public policy, whatever residual immunity of the Commonwealth from tort liability now exists should be abrogated. On the other hand, the Commonwealth argues that it cannot be sued in tort except with its consent as expressed by a statute, and that G.L. c. 258, § 1, is not an expression of such consent.

Consistent with the corporation's contention (2) above, we hold that, just as in the case of its political sudbidivisions, the Commonwealth is not immune from liability if it creates or maintains a private nuisance which causes injury to the real property of another.

1. The corporation argues that the Commonwealth waived its sovereign immunity in tort as well as contract by the express provisions of G.L. c. 258, § 1, which states in relevant part, '(t)he superior court, except as otherwise expressly provided, shall have jurisdiction of all claims at law or in equity against the commonwealth.' Whether this statute is merely jurisdictional as we suggested in Smith v. Commonwealth, 347 Mass. 453, 456, 198 N.E.2d 420, or whether it incorporates a limited waiver by the Commonwealth of its sovereign immunity as we held in R. Zoppo Co., Inc. v. Commonwealth, 353 Mass. 401, 404, 232 N.E.2d 346, is irrelevant since the providing of a forum to hear claims against the Commonwealth would be a meaningless gesture unless it assumed that the Commonwealth is not immune to at least some suits. Compare 28 U.S.C. § 1346(b) (1970), with 28 U.S.C. § 2674 (1970). See, generally, Davis, Administrative Law Treatise, § 25.06, fn. 10. The case of Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N.E. 854, has defined the extent of that statutory waiver in this Commonwealth for nearly eighty-three years. The well-spring of the case was the case of Troy & Greenfield R.R. v. Commonwealth, 127 Mass. 43, 46, where we said without reference to prior authority in point that '(i)t is a fundamental principle of our jurisprudence, that the Commonwealth cannot be impleaded in its own courts, except by its own consent clearly manifested by act of the Legislature.' In the face of the contention that 'all claims' as used in St.1887, c. 246, the predecessor to G.L. c. 258, § 1, included tort claims, the court in the Murdock Parlor case, supra, examined the legislative history of the statute in question. Since Pub.Sts. c. 195, § 1, referred to 'all claims against the Commonwealth which are founded on contract.' the court held that St.1887, c. 246, which gave to the Superior Court 'jurisdiction of all claims against the Commonwealth, whether at law or in equity,' did not extend the waiver to tort claims, but merely expanded the extent of waiver to additional contract claims. Since the court assumed that the extension of any waiver must come from the Legislature, it ruled that if the Legislature had intended to extend liability to tort claims, 'it certainly would have done so in express terms' 152 Mass. at 32, 24 N.E. at 856, and therefore the plaintiff's contention in that case failed.

Since sovereign immunity is a judicially created common law concept, we reject the assumption of the Troy case, supra, 127 Mass. 43, and the Murdock Parlor case, supra, 152 Mass. 28, that the consent of the Commonwealth to suit may be derived only from the Legislature. The cases cited for this proposition in the Troy case refer to the rule that suits against the United States cannot be maintained without an act of Congress, and are therefore distinguishable. The Davis, 10 Wall. 15, 19, 19 L.Ed. 875. Carr v. United States, 98 U.S. 433, 437, 25 L.Ed. 209. However, we accept the conclusion of the Murdock Parlor case that the consent incorporated in G.L. c. 258, § 1, does not extend to tort claims.

2. We agree with the corporation's second argument that municipalities of Massachusetts are liable for private nuisances and there is no logical reason why the Commonwealth should not be similarly liable. Municipal liability for private nuisances arises from a court made exception to the rule of governmental immunity, viz Where a municipality is the owner of or in control of real estate and creates or permits a private nuisance to the real property of another, it is liable in a common law action just as a natural person would be. Lawrence v. Fairhaven, 5 Gray 110; Miles v. Worcester, 154 Mass. 511, 28 N.E. 676; Towner v. Melrose, 305 Mass. 165, 168, 25 N.E.2d 336. This liability attaches even where the nuisance arises out of the performance by the municipality of a governmental duty. Wershba v. Lynn, 324 Mass. 327, 333, 86 N.E.2d 511; Kurtigian v. Worcester, 348 Mass. 284, 287--288, 203 N.E.2d 692.

The Commonwealth argues that logic does not indicate an extension of this exception to cases against the Commonwealth because the immunity of the municipality rests upon a different basis than does the immunity of the Commonwealth. However, we conclude that, while it is true that there is a distinct difference in the legal basis, the difference is of no significance in our reasoning here. The separate reasons why the rule of immunity was established for the municipality, on the one hand, and for the sovereign, on the other hand, may have been sound in their inception but they have long since lost their validity. An examination of the origin of the doctrine establishes this conclusion.

The immunity of municipalities to tort claims is judge made and first appeared in our law in the case of Riddle v. Proprietors of the Locks & Canals on Merrimack River, 7 Mass. 169, 187. As was the practice in 1810, this court looked to the English courts for precedent and said, 'counties and hundreds, in England; and counties (and) towns . . . in this state . . . are liable to information or indictment, for a neglect of a public duty imposed on them by law; yet it is settled in the case of Russel & Al. v. Inhabitants of the County of Devon (2 D. & E. 667, 100 Eng.Rep. 359 (1788)) that no private action can be maintained against them for a breach of their corporate duty, unless such action be given by statute. And the sound reason is, that, having no corporate fund, and no legal means of obtaining one, each corporator is liable to satisfy any judgment rendered against the corporation.'

While this doctrine appeared in the Riddle case as a gratuitous statement, it became a firm holding in Mower v. Leicester, 9 Mass. 247, 250.

Despite the fact that the reason for the rule no longer obtained (since counties, cities and towns do have corporate funds), we have followed the rule in a long line of cases. See, e.g., Bigelow v. Randolph, 14 Gray 541; McKenna v. Kimball, 145 Mass. 555, 14 N.E. 789; Bolster v. Lawrence, 225 Mass. 387, 114 N.E. 722; Molinari v. Boston, 333 Mass. 394, 130 N.E.2d 925.

Emphasis in many cases has been that a municipality is not liable for the tortious acts of public officers and employees working under their direction performing public duties imposed by the Legislature. Molinari v. Boston, 333 Mass. 394, 395--396, 130 N.E.2d 925. The reasoning here is that...