Perkins v. City of Lawrence

• Decision Date: 29 January 1884
• Citation: 136 Mass. 305
• Parties: Moses Perkins v. City of Lawrence
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 305

Moses Perkins v. City of Lawrence

Supreme Court of Massachusetts

January 29, 1884

Argued November 8, 1883

Essex. Tort for damages caused to the plaintiff's estate, by the negligence of the servants of the defendant city, in excavating for and laying water pipes. Trial in the Superior Court, without a jury, before Staples, J., who allowed a bill of exceptions, in substance as follows:

The plaintiff, in opening his case, stated that he relied upon the following facts:

By the St. of 1872, c. 79, the defendant city was authorized to supply itself with water. Under this statute, the defendant laid distributing pipes through its streets, and from such pipes smaller service pipes were laid by the defendant to the residences of individuals, under an ordinance of the city providing therefor. The plaintiff, shortly after the laying of the main pipe in the street where he resided, applied under the ordinance for a service pipe to be laid from the main street pipe through his premises into his house, which was located near the street line. Thereupon the servants of the defendant made excavations, and laid the service pipe under the plaintiff's stone and iron fence, which was on the line of the street, and from the fence under the foundation wall of the plaintiff's house. The injury complained of was the settling and twisting of the fence and cellar wall, caused by the negligence of the defendant's servants in undermining the same while digging for and laying the service pipe. The plaintiff paid for all the expense of laying the service pipe beyond the street line, as provided in the ordinance. The plaintiff's premises, through which the service pipe was laid, were never taken by purchase or otherwise under the provisions of the statute, nor claimed nor used in any other manner than as above stated. After the laying of the service pipe, the plaintiff paid the defendant the established rates for the use of the water thus conveyed to him.

The defendant asked the judge to rule that, upon the above facts this action could not be maintained, because the plaintiff's remedy was under the provisions of the St. of 1872, c. 79, and was exclusive. ^[*]

The judge so ruled; and ordered judgment for the defendant. The plaintiff alleged exceptions.

Exceptions sustained.

J. C Sanborn, for the plaintiff.

E. T Burley, for the defendant.

C. Allen J. W. Allen & Holmes, JJ., absent.

OPINION

C. Allen J.

The plaintiff in his opening, as well as in his declaration stated that the injury of which he complains was caused by the negligence of the defendant's servants, and so brought his case directly within the authority of Hand v. Brookline, 126 Mass. 324, where the town was held liable for an injury to the plaintiff's property, through neglect in the construction of water-works which the town had been authorized by a special statute, voluntarily...