Stevens v. Worcester

• Decision Date: 18 June 1907
• Parties: STEVENS v. WORCESTER. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 45

81 N.E. 907

STEVENS v. WORCESTER. (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

June 18, 1907

COUNSEL

Ernest H. Vaughan and Charles M. Rice, for plaintiff.

Ernest I. Morgan and J. Fred Humes, for defendant.

OPINION

KNOWLTON C.J.

These are two actions of tort to recover damages for the diversion of water from the plaintiff's mill. Acting under St 1867, p. 541, c. 106, which authorized the city council of Worcester to fix the boundaries of Mill brook and other streams, and to 'alter, change, widen, straighten and deepen its channels, to appropriate and cover, pave and enclose them in retaining walls,' so far as they should judge necessary for the purposes of sewerage, drainage and the public health and to take and hold by purchase or otherwise, lands, water rights, dams or other real estate, the city, at different times, has made changes in Mill brook, and has appropriated different parts of it to use as a sewer, until now, from a point considerably northward of the center of the city to the point where it flows into the Blackstone river, the whole stream is appropriated to this use.

The plaintiff owns a mill on the westerly bank of the Blackstone river, below the place where Mill brook flows in, and, for a long time prior to the acts complained of in these suits, this mill had been run by water power furnished by this river. To carry out the command of the Legislature contained in St. 1886, p. 309, c. 331, to purify the sewage which it was discharging into the Blackstone river, the defendant built an outflow sewer extending from Mill brook, at a point above its junction with the Blackstone river, to the purification works which it constructed. From June 25, 1890, to the date of the second of these writs, the city has been all the time diverting from Mill brook water, bearing sewage, and conducting it to the purification works, and thence discharging the purified liquid into the Blackstone river at a point below the plaintiff's mill, so that the plaintiff has lost the use of this water. He claims damages for this diversion.

By no one of the several votes and orders of the city council relating to Mill brook, prior to March 8, 1880, did the city assume to take or divert its waters from any riparian proprietor below the point to which the last of the changes referred to extends. By these votes, and the action under them, the city acquired no right to divert any part of the water from the plaintiff's mill. The right of the plaintiff to recover damages, under the statute, for the rights acquired by the city, was therefore limited to loss from the pollution of the water and other similar causes, and did not include damage for any diversion of the stream from his mill. This is settled by Washburn & Moen Mfg. Co. v. Worcester, 153 Mass. 494, 27 N.E. 664. There is nothing at variance with this statement in the case of Worcester Gaslight Co. v. County Commissioners, 138 Mass. 289, in which it appears that Piedmont brook had been taken by the city for the purposes for which it was subsequently used, more than two years before the time when the petitioner filed its petition for the assessment of damages. This use involved a diversion of the water from the petitioner's estate. This petition, therefore, came too late.

The defendant contends that the vote of March 8, 1880, gave it a right to divert the water from the plaintiff's mill; but the rights taken under this vote extended down the stream only to the point where the waters were to be discharged into the Blackstone river at the terminus of the 'common sewer which extends from Cambridge street to a point on the Blackstone river, about 50 feet below the stone bridge over said river, on Millbury street, near the works of the Washburn & Moen Manufacturing Company.' This point is above the plaintiff's mill, and the vote gave the city no right to divert the water from the river below, into which the brook was accustomed to flow, and gave the plaintiff no right to damage for an anticipated diversion of water from his mill.

St. 1886, p. 309, c. 331, under which the outflow sewer was constructed, required the city to remove the sewage from the water; but it did not give a right to take property without compensation. It authorized the taking of 'lands, water rights, water privileges, rights of way or easements * * * necessary for the establishment of such system of sewage disposal,' and compelled the payment of damages for all property so taken. A description of property taken was to be filed and recorded in the registry of deeds. The city did not assume to take any water rights under this statute, nor did it file any certificate in the registry of deeds. The diversion of water from the plaintiff's mill was, therefore, unauthorized.

The decisions in Harrington v. Worcester, 186 Mass. 594 72 N.E. 326, and Rome v. Worcester, 188 Mass. 307, 74 N.E. 370, do not relieve the defendant from liability for this diversion of water. The first of these cases merely holds that an agency of the government, charged with the performance of a governmental duty for the benefit of the general public, is not liable to a personal action, in the absence of a statutory provision, for the negligent omission to do that which the statute requires of it. It does not suggest that a city, in...