The City of Boston, Plaintiff In Error v. David Lecraw

• Decision Date: 01 December 1854
• Citation: 15 L.Ed. 118,17 How. 426,58 U.S. 426
• Parties: THE CITY OF BOSTON, PLAINTIFF IN ERROR, v. DAVID R. LECRAW
• Court: U.S. Supreme Court

58 U.S. 426

17 How. 426

15 L.Ed. 118

THE CITY OF BOSTON, PLAINTIFF IN ERROR, v. DAVID R. LECRAW.

December Term, 1854

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Rhode Island.

It was a suit originally commenced in the circuit court of the United States for the district of Massachusetts, and removed into the circuit court of Rhode Island, upon the ground that Mr. Justice Curtis was so connected with the plaintiff as to render it, in his opinion, improper for him to sit in the trial of the suit; and that Judge Sprague was an inhabitant of Boston, and concerned in interest in this cause, so as to render it, in his opinion, improper for him to sit in the trial thereof. It was therefore ordered, (both judges concurring,) that an authenticated copy of the record and all proceedings in the suit, should be certified to the circuit court of Rhode Island.

Lecraw, a citizen of New Hampshire, as surviving partner of the firm of Lecraw and Perkins, brought an action on the case against the city of Boston, for erecting a public nuisance, which was specially injurious to the plaintiff.

Lecraw was in possession of a wharf estate, situated in the southerly side of Boston. His wharf extended to the sea, and was entirely unobstructed at the end seaward. Along the southerly side of the wharf there was a dock about thirty feet wide, extending from the end of Summer-street to the sea. In July, 1849, the board of health ordered a drain, or sewer, to be constructed, from one end of the dock to the other, so as to carry the drainage out to deep water. It was constructed as follows: The obstruction complained of, as appeared by the evidence, was a drain composed of plank and timber, 460 feet long, eight feet wide, and eleven feet high to top of piles, and resting upon the surface of the mud in the dock, which extended

from the head of the dock to within _____ feet of the foot of the same, and at the end of said drain was seventeen feet from the plaintiff's wharf, on the north, and thirty-two feet from the other wharf, on the south.

For this obstruction to the approach of vessels to his wharf, Lecraw brought his action, and upon the trial of the cause the jury found a verdict in his favor, assessing the damages at $9,280.

The bill of exceptions taken by the defendant included all the evidence and the numerous prayers offered to the court, which are sufficiently noticed in the opinion of this court.

The case was argued by Mr. Ames and Mr. Chandler, for the plaintiff in error, and by Mr. Tilton and Mr. Durant, for the defendant.

The briefs on both sides were very voluminous, and it is not possible to do more than state the positions assumed by the counsel respectively.

The counsel for the plaintiff in error endeavored to establish these positions as matters of law, or matters of fact deduced from the evidence. Each one of them was sustained by numerous references.

1. The whole territory of Boston was originally granted to and held by the town, which made grants thereof from time to time to such persons and on such conditions as it deemed expedient.

2. The city of Boston as successor of the town, now owns the fee in this dock, and the title to the estates on each side of it is derived from the town.

The wharf in possession of the plaintiff as lessee, is known as the Bull wharf.

The wharf on the other side of the dock is known as the Price wharf.

The title of both wharves is derived from the town of Boston.

3. It thus appears, that the dock between these wharves has been recognized by all parties, including the plaintiff's lessor, as the property of, and under the control of, the city of Boston.

4. This place has been used for the purposes of drainage beyond the memory of man, the common sewer in Summerstreet entering at the head of it, and emptying its contents therein.

5. The town has always exercised control over this dock.

Upon these positions the counsel for the plaintiff in error made the following points:——

1. It was error in the court below, to rule that the plaintiff was entitled to recover of the city of Boston, damage for the

act of the board of health of said eity. The action was not properly brought, and cannot be maintained against the defendant corporation.

2. The structure, which the plaintiff alleges to be a public nuisance in a public dock, was erected by the board of health in the performance of a duty imposed upon them by law. The act was performed in good faith, for the preservation and protection of the public health, without negligence, and was lawful in itself. Such proceeding, if prejudicial to the interest or use which any individual may have before enjoyed in said dock, affords no ground of action, but is damnum absque injuria, and the judgment and decree of the board of health, not being impeached, are conclusive of the necessity of the structure.

3. If the locus was a public dock, slip, or way, which all the public had a right to use as a public dock, this fact did not vest in the owners of the adjoining wharves or flats any right whatsoever to use it for any other purpose than as a passage-way in boats or vessels to and from other portions of Summer-street, in common with other citizens of the commonwealth; and the plaintiff having no peculiar right, easement, or privilege therein, has no claim for damages in a civil suit, for any obstruction thereof.

4. Inasmuch as the plaintiff below set up a dedication of the locus as a public dock, the nature of the dedication, if any, and the character of the dock thence derived, were questions of fact for the jury, and they should have been cautioned, that, considering 'the rights of the owners of flats in the same as long as the owner leaves such flats open and uninclosed, under the law of Massachusetts, there must be some plain and explicit declaration by the owner of flats that he doth dedicate the same to public use, as a public dock, quay, or waterway, in order that the jury should find that the same were thus dedicated, and that the use of the same for passage or laying of vessels is no evidence of claim of such flats, as a public dock, quay, or way, by the public, and is no evidence of their acceptance of such dedication.'

5. The selectmen of Boston, acting under the express authority of law, as early as 1710, authorized the construction of a common sewer in Summer-street. In 1728, they authorized Vassall, and the deacons of the old church, to lay a drain through this street, 'down to the sea.' In 1804, the sewer was relaid 'through Summer-street to the sea,' and the expense was apportioned upon the inhabitants benefited, by the selectmen, according to law.

At various periods between 1710 and the present time, the existence of this drain has been recognized, and its repair ordered, and, in 1840, it was relaid by the city authorities.

The counsel for the defendant in error made the following points, each one of which, together with its numerous subdivisions, was sustained by a great number of authorities, which there is not room to transcribe:——

I. The first point made by the plaintiffs in error, namely, that the city are not liable, as a corporation, for the acts complained of, is not open to them upon this record. No such point was raised or exception taken before the circuit court; on the contrary, it was admitted that the city were responsible if the acts were illegal.

II. As the case was submitted to the jury, three facts were to be found by them, and are now to be taken as established.

1. The dock was a public dock.

2. The structure complained of was a public nuisance.

3. The defendant in error suffered peculiar and special damages, not common to, and much greater than the public in general suffered.

The case of the defendant in error rests upon this foundation. The dock was a public dock, which he had the right to use; the city destroyed that right by a public nuisance.

The city now set up the justification that their own common sewer, which was exclusively under their own control, created a nuisance in...