Trowbridge v. Town of Brookline

• Citation: 10 N.E. 796,144 Mass. 139
• Parties: TROWBRIDGE v. INHABITANTS OF THE TOWN OF BROOKLINE.
• Decision Date: 26 February 1887
• Court: United States State Supreme Judicial Court of Massachusetts

144 Mass. 139

10 N.E. 796

TROWBRIDGE v. INHABITANTS OF THE TOWN OF BROOKLINE.

Supreme Judicial Court of Massachusetts, Norfolk.

February 26, 1887

COUNSEL

M. &amp C.A. Williams, for defendants.

The bill of exceptions shows that not only no part of the petitioner's land was taken for the sewer, but also that the estate did not even abut upon the land taken for the sewer, but, on the contrary, was separated therefrom by the intervention of the entire estate of one Beals. Chandler had the right to dig on her land, and intercept or draw off, as the case might be, the under-ground waters, even though the effect of such excavation would be the draining of plaintiff's wells. Acton v. Blundell, 12 Mees. & W. 324; Greenleaf v. Francis, 18 Pick. 117; Chasemore v. Richards, 7 H.L.Cas. 349; Frazier v. Brown, 12 Ohio St. 294; Chatfield v. Wilson, 28 Vt. 49. And, when the town paid Chandler for the easement in her land, it bought and paid for this right, as well as all other rights it acquired of Chandler. The petitioner could not, by the common law, in the absence of the statute, maintain any action against the town for the doing of this very act; and it will be presumed the legislature intended (unless more clearly appears) to give the statute remedy for those injuries only for which an action could, but for the statute, have been brought at common law. Such is the rule in England. New River Co. v Johnson, 2 El. & El. 435; Metropolitan Board of Works v. McCarthy, L.R. 7 H.L. 243. There is no doubt that, where a part of petitioner's land is taken, the injury done by draining a well would be included as an element of damage to the remaining land, (Hartshorn v Worcester, 113 Mass. 111;) but we believe there will be found no case in Massachusetts for damages for the laying out of a road under Pub.St. c. 50, § 3; and the damages in this case are to be determined as in the case of the laying out of town ways, where it has been held that the petitioner can recover, unless a portion of his land is taken for the way or, at least, unless his land abuts upon the way, ( Hartshorn v. Worcester, 113 Mass. 111; Walker v. Old Colony R. Co., 103 Mass. 10; Presbrey v. Old Colony R. Co., 103 Mass. 1.) As to the rule of damages in the case of laying out of highways, see Com. v. Norfolk Sessions, 5 Mass. 435, 437; First Church v. Boston, 14 Gray, 214; Hilbourne v. Suffolk, 120 Mass. 393.

If this sewer had run through Washington street, instead of through the land of Chandler, and had drained the wells, the petitioner would have had no cause of action. Pierce v. Drew, 136 Mass. 75, 80, 81; Boston v. Richardson, 13 Allen, 146, 149. How, then, can a cause of action accrue to this petitioner because land is taken, not from her, but from Chandler? We suppose that Parker v. Boston & M.R. Co., 3 Cush. 107, will be relied upon as authority for the maintenance of this petition. But we respectfully suggest that it does not differ from the case of Hartshorn v. Worcester and Walker v. Old Colony R. Co., before cited, inasmuch as in Parker v. Boston & M.R.R. the facts show that a high embankment had been made on the Winterhill road at the point where the petitioner's estate bounded on the said road, and that thus the petitioner's access to said road was rendered difficult. See Dodge v. County Com'rs Essex, 3 Metc. 380, and Ashby v. Eastern R. Co., 5 Metc. 368; Clapp v. Boston, 133 Mass. 367. The petitioner may be regarded as the licensee, drawing water from the land of Chandler by an implied license to use the water till Chandler should want it. When the respondent took the land, the right to the water in it was in Chandler, and not in the petitioner, and, in using the land for the purpose for which it was taken, no right of the petitioner was interfered with, and no damage was done to her property. Fay v. Salem & Danvers Aqueduct Co., 111 Mass. 27; Castle v. Berkshire, 11 Gray, 26. An examination of the statutes, we submit, will tend to confirm the position we contend for. Pub.St.Mass. c. 50, §§ 1-3. See, also, chapter 49, § 67. The naming of the persons over whose land the way is to pass, and annexing the award of their damages by the selectmen, is a necessary part of their laying out, to be reported to the town for its acceptance. Russell v. New Bedford, 5 Gray, 31, 34. See Pub.St. c. 49, § 69. This court has held that interest is to be computed, not from the laying out, but from such time as the petitioner's land is actually entered upon. Edmands v. Boston, 108 Mass. 535. The considerations above set forth are entitled to the greatest weight in determining whether the legislature intended to give to individuals rights of action which but for the statute they would not have had. If this plaintiff can recover, so can her next neighbor, and the next, and so on ad infinitum, on both sides of the sewer, and it could never be determined in advance what the expense of laying out a sewer would be.

Perkins & Lyman, for petitioner.

This cause is brought under Pub.St.Mass, c. 50, § 3. The exception taken in this case is to the refusal of the court to rule "that petitioner could not recover as matter of law." The respondent contends that no part of the petitioner's land was taken for the location or used in the construction of the sewer. It has been repeatedly decided by this court that the right to recover damages to private property, occasioned by the construction of railroads, highways, and other public works, under statutes similar to the sewer act, does not depend upon the actual taking or entry upon land of the petitioner; but that any damage occasioned, whether upon land taken or not taken, may be recovered. Dodge v. County Com'rs Essex, 3 Metc. 380; Ashby v. Eastern R.R., 5 Metc. 371; Babcock v. Western R. Co., 9 Metc. 555; Brown v. Providence, W. & B.R. Co., 5 Gray, 39; Marsden v. Cambridge, 114 Mass. 490. The respondent contends that no defined streams or currents of water were diverted by the sewer. The sewer act requires the town to pay damages occasioned by "laying, making, or maintaining a common sewer." The cause of action is created by the statute, and does not arise from any tortious act. The case of Parker v. Boston & M.R. Co., 3 Cush. 114, is exactly in point. Rev.St.Mass. c. 39, § 56. The right to recover damages upon a petition of this kind for the loss of a well is again recognized in Perry v. City of Worcester, 6 Gray, 546. The respondents contend that they were not guilty of negligence. It is the foundation of the petition in this cause that no legal wrong had been done by the respondents. If there had been negligence in the construction of the sewer which caused the damage, this petition would not lie, but an action at law must be brought. Tower v. Boston, 10 Cush. 237; Perry v. Worcester, 6 Gray, 546. The respondents contended that they had settled with Mrs. Chandler, the owner of the only private land which was actually taken in the construction of the sewer. Mrs. Chandler settled the damages occasioned only to her estate. It is not contended by the respondents that Mrs. Chandler had any authority to represent the petitioner, or make any settlement for her; and neither is it contended that any compensation has ever been paid for the damages of which this petitioner complains. It would seem that acts of settlement relating to Chandler would have no more significance in determining the rights of petitioner than acts of other persons relating to other parts of the location of the sewer. It is therefore difficult to see what possible bearing Mrs. Chandler's settlement has upon the rights of the petitioner in this case.

OPINION

W. ALLEN, J.

If the petitioner can recover for damages occasioned by making so much of the sewer as is in the land taken from Chandler, the petition can be maintained, and the ruling was correct, even if damages occasioned by making so much of the sewer as is in the highway may be supposed to have been included in damages for the laying out of the highway; and the question presented is whether a town which lawfully takes land, and constructs a common sewer therein, whereby a well upon land not taken, nor adjoining land taken, is made dry, the well being fed by water percolating through the soil, may be liable to pay damages therefor to the owner of the land in which the well is situated.

The respondent is liable for "damages occasioned by laying making, or maintaining" the sewer. Pub.St. c. 50, § 3. The provision in the railroad act is similar: "damages occasioned by laying out, making, and maintaining its road." Pub.St. c. 112, § 95. The provision in regard to public ways is, "if damage is sustained by any person in his property by the laying out," in Pub.St. c....