Stanchfield v. City of Newton
| Decision Date | 29 June 1886 |
| Citation | 7 N.E. 703,142 Mass. 110 |
| Parties | STANCHFIELD v. CITY OF NEWTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
This was an action of tort to recover damages arising from the alleged flooding of plaintiff's premises situated in Church street, in Newton. At the trial in the superior court, before BRIGHAM, C.J., there was evidence, on the part of the plaintiff, tending to prove the following facts:
That the plaintiff was the owner of certain premises on Church street, extending back from said street about 180 feet on the southerly side, to a brook or drain, also described by some of the witnesses as a "ditch," by a gradual descent; that there was a brook or drain commencing at Maple place, westerly of his premises, and adjacent thereto, with a small channel, gradually deepening until it reached Center street, where it was about two and a half feet deep, having a regular channel and banks, but that there is little water therein except at the wet seasons of the year, and much of the time none at all; that it passed under Center street, a public highway, through a culvert, which it appeared by the evidence had been there for upwards of 40 years, and thence down to the Charles river; that southerly of the plaintiff's premises was a long range of hills, the natural drainage of which was in part in the rear of the said premises, and in part to the east and west of the same; that the natural drainage of Church street, and other streets northerly of said premises, was for the most part westerly and northerly and away from said premises,--the descent from Church street southerly being towards said brook; that in 1875 the city laid a large cement drain-pipe along Church street, with catch-basins for collecting the water, and turning it into the same, and said drain extended about 700 feet easterly along Church street, and then, turning down Maple place, extended about 180 feet, terminating in a catch-basin, from which the water passed into the rear of the plaintiff's premises,--the intention being to empty the water coming through the drain-pipe into the brook or drain before named, and so carry the same to the Charles river; that, instead of connecting directly with said brook, the drain-pipe was stopped at the catch-basin, where was a discontinued blind drain made of loose rubblestone and dirt, through which only the water could pass to the brook so that the water rose to the surface, and spread over the land during the springs of 1876, 1877, and 1878; that the flowage through the drain-pipe was very great after rains and in wet seasons; that Center street crossed Church street about 700 feet east of Maple place, at right angles, coming down the hill in a southerly direction, and leading into the street on the east and west were a number of other streets along which there were, within the limits of the street constructed side drains for surface water, which brought a large amount of water down said Center street into said culvert, let into it by grated openings made for that purpose; that naturally large portions of said water could not come to said culvert, or to the plaintiff's premises that this water brought to said culvert large quantities of sand, gravel, etc., so that in 1876 it became more or less filled up, and this water also, not finding an outlet to the Charles river through the culvert, was turned back into the rear of and upon the plaintiff's premises; that this water, with that brought there from the west end of Church street by the said drain-pipe, flooded the plaintiff's premises, his cellar, kitchen, and out-houses, doing the damage complained of in this action; that this state of things continued from March, 1876, to 1879, when the superintendent of streets took up the blind drain, and connected the drain-pipe or catch-basin directly with the brook, and cleared out and deepened the channel of the brook from Maple place, and the culvert under Center street, it taking from 15 to 20 men about 30 days to do the work, and thereupon the flooding ceased.
The verdict was for defendant, and the plaintiff alleged exceptions.
E.W. Cate, for plaintiff.
W.S. Slocum, for defendant.
The plaintiff sought to recover upon two distinct grounds: First, that being a riparian proprietor upon the brook, water-course, ditch, or drain (for it is called by all these names) which flowed in the rear of his premises, he was entitled to the natural flow of water therein, and that such flow had been greatly increased in volume and rendered foul by the acts of the defendant; and, second, that, even if not a riparian proprietor, he was injured by the imperfect construction of the drain through Maple street, by which the water from Church street was intended to be conducted to the brook, and also, by the defective preparation of the line of the brook, considered with reference to its channel, the means of discharge from it by a culvert, and the drainage brought to it, the land of the plaintiff in the vicinity having been overflowed, and injury to him thus occasioned.
There was evidence on behalf of the plaintiff that a drain-pipe had been constructed along Church street, in the city of Newton, for some 700 feet, whose only object was the collection of surface water; that the natural drainage of a portion of the territory was in a different direction from plaintiff's premises; and that in the rear of the plaintiff's premises was a small brook or ditch,--whether it was a natural water-course or not was in dispute, and also whether it was entirely outside of and beyond the plaintiff's premises. There was further evidence that the drain in Church street was connected with another drain-pipe, through which its waters passed, 180 feet in length, that extended through Maple place, a private way, by leave of the proprietors thereof, and terminated in a catch-basin, from which water passed, by overflow, to the plaintiff's premises; that this drain-pipe, at the time of the injuries of which plaintiff complained, did not extend to the brook or ditch; and that, the only connection being by a discontinued blind drain of rubble-stone and dirt, the water, by reason of the flowage in rains or wet seasons, rose to the surface, and thus spread over the plaintiff's land. There was further evidence that the land of the plaintiff had been overflowed by the overflow of the brook or ditch, and that there was no sufficient outlet from the same; that the only outlet provided was by a culvert under Center street, which was insufficient, and had also been permitted to be choked up; that, further, there was a drainage of surface water not naturally coming there, near Center street, and that this back-water had been thrown upon the plaintiff's land. The evidence on behalf of defendant was more or less contradictory as to the said facts and causes of damage as alleged by the plaintiff.
The second, third, and fourth instructions requested were, in substance, that the defendant could not lawfully collect, from a great extent of country, water not naturally coming near the plaintiff's land; and, conducting it by an artificial channel, through a private way, precipitate it upon the rear of his lot, with force and volume increased by the mode in which it was conducted, and the extent of country from which it was drawn. The seventh, eighth, and ninth instructions requested were, in substance, that if there was a natural water-course or ditch running in the rear of plaintiff's premises, which passed across Center street, defendant was bound to make there a suitable culvert for the passage of the water through the same, which might naturally come there, or which might be brought there by its acts and doings, as by the construction of a drain through Maple street; and further provide that it should not be obstructed; that if there was a culvert maintained by private persons for more than 20 years, that it was the duty of defendant to see that it was not obstructed, even if the waters were not those of a natural water-course; and, further, that if, by neglect in these respects, the water overflowed, or was thrown back upon plaintiff's premises, the defendant was responsible.
These latter requests are apparently intended to prevent the inquiry as to the rights of the plaintiff, even if it be assumed that he was not a riparian proprietor. The requests do not clearly distinguish between the two grounds upon which the plaintiff was entitled, upon the evidence, to present his case, and it would have been impossible to give them precisely as asked. In the instructions as given this distinction was carefully made by the presiding judge, and it is to be considered whether, as given, they accurately and sufficiently cover the case as presented.
The first portion of them is devoted to considering the rights of the plaintiff as a riparian proprietor upon the brook. They hold that...
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