United Elec. Light Co. v. Deliso Const. Co.

• Decision Date: 28 December 1943
• Parties: UNITED ELECTRIC LIGHT CO. v. DELISO CONST. CO., Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 313

52 N.E.2d 553

UNITED ELECTRIC LIGHT CO.

v.DELISO CONST. CO., Inc., et al.

Supreme Judicial Court of Massachusetts, Hampden.

Dec. 28, 1943.

Exceptions from Superior Court, Hampden County; W. A. Burns, Judge.

Action of tort by the United Electric Light Company against the Deliso Construction Company, Inc., and trustee for damage to plaintiff's underground conduits and manholes because of cement grouting operations by named defendant in performing a contract with the City of Springfield for construction of a sewer tunnel. Verdict for named defendant, and plaintiff brings exceptions.

Exceptions sustained.

Before FIELD, C. J., and DONAHUE, DOLAN, and RONAN, JJ.

D. M. Macaulay, of Springfield, for plaintiff.

R. T. King, of Springfield, for defendant.

RONAN, Justice.

This is an action of tort to recover for damage to the plaintiff's conduit lines and manholes, located underground in Columbus Avenue, a public way in Springfield, which it was alleged was caused by the defendant while it was engaged in performing a written contract made with the city of Springfield for the construction of a tunnel, six feet in diameter, with outside circular steel walls, for the purpose of containing a sewer line. There was evidence that steel plates were put in place as the tunnel progressed, and through holes in these plates a mixture of cement and water, known as ‘grout,’ which was subjected to a pressure of fifty pounds per square inch, was discharged by a nozzle for the purpose of forming a cement crust on the outside top of the tunnel and of filling in the fissures in the earth which arose from the construction of the tunnel. The top of this tunnel was twenty-three and one half feet below the surface of Columbus Avenue at Pynchon Street and about twenty-three feet below the surface of this avenue at Worthington Street. The plaintiff had built a manhole near each of these points on Columbus Avenue, and a conduit consisting of a cement envelope containing tile conduits led into and from each manhole. The conduits were about two and one-half feet high and their top was about three feet below the surface of Columbus Avenue. The manholes were seven and one-half to eight feet deep and had sand bottoms. There was evidence that cement was found in these manholes and conduits; and that cement appeared at two places upon the surface of this street and in the cellar of a business building located outside the limits of the way. The city had made borings along the proposed location of the tunnel, and the estimate contained in the contract as the amount of cement that would be required for these grouting operations was stated to be ten thousand bags. There was testimony that more than thirty-five thousand bags were actually used for which the defendant was paid at the rate of $2 a bag. There was testimony that the cement had hardened in the plaintiff's underground structure; and that it was necessary to remove it from the manholes by chipping it with an air compressor, and to remove some of the conduits and to substitute new ones at a cost to the plaintiff of a little more than $4,800. The jury could find that the cement deposited in the plaintiff's underground system came from the grouting operations of the defendant.

The plaintiff's declaration contained four counts, the first for negligence, the second for a nuisance, the third for the escape of a dangerous instrumentality and the fourth for trespass. The judge, subject to the plaintiff's exception, directed a verdict for the defendant on each of the last three counts. The jury returned a verdict for the defendant upon the first count. The only other exception saved by the plaintiff was to the limitation upon the admission in evidence of a provision of the contract, introduced in evidence, between the defendant and the city obligating the defendant to exercise care so as not to injure underground pipes, conduits and other structures in the street, and putting a duty upon the defendant to repair at its expense any damage that might be incurred by these structures, which the judge refused to permit the jury to consider as any evidence of the duty that the defendant owed to the plaintiff.

The plaintiff's manholes and conduits could be found to have been lawfully laid in the public way in accordance with permits duly granted in 1900 and 1921 by the proper municipal authorities to whom that power had been granted by Rev.Laws, c. 122, § 2, G.L. c. 166, § 22. The effect of the permits, however, was to authorize the location of these structures which would otherwise constitute a nuisance. Commonwealth v. Boston, 97 Mass. 555;Lynch v. Lowell Electric Light Corp., 263 Mass. 81, 160 N.E. 413. The plaintiff by virtue of the permits secured the privilege of sharing in a common right, the enjoyment of which was in the public at large, and the participation in this common right by the plaintiff by constructing and maintaining its structures for the use of the public, or that portion thereof that desired to use the facilities furnished by the plaintiff, did not impose an additional servitude upon the way for it was a use of the way that was included within the purposes for which it was taken, laid out and constructed. The rights of the owners of the lands abutting the way, although they owned the fee, were not impaired by the installation and maintenance of this underground system. Pierce v. Drew, 136 Mass. 75, 49 Am.Rep. 7;Lincoln v. Commonwealth, 164 Mass. 1, 41 N.E. 112;Bishop v. North Adams Fire District, 167 Mass. 364, 45 N.E. 925;Sears v. Crocker, 184 Mass. 586, 69 N.E. 327,100 Am.St.Rep. 577;Cheney v. Barker, 198 Mass. 356, 84 N.E. 492, 16 L.R.A.,N.S., 436; Centebar v. Selectmen of Watertown, 268 Mass. 121, 167 N.E. 303.

The permits did not give the plaintiff any title or proprietary interest in that part of the way that was occupied by its structures, and if the city acting under the power of eminent domain changed the grade of the way or even discontinued it, the plaintiff would have no claim for damages, even if it sustained a loss of these structures which could not be removed without destroying them. Natick Gas Light Co. v. Inhabitants of Natick, 175 Mass. 246, 56 N.E. 292;New England Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 65 N.E. 835;Boston Electric Light Co. v. Boston Terminal Co., 184 Mass. 566, 69 N.E. 346;Boston, W. & N.Y. St. R. Co. v. Commonwealth, 301 Mass. 283, 17 N.E.2d 166.

The plaintiff, although without any proprietary interest in the land, and notwithstanding its allegation that the manholes and conduits constituted ‘the plaintiff's close,’ was the owner of the equipment which it had installed in the way. This equipment did not become a part of the realty but was the personal property of the plaintiff which remained in its custody and possession. Lorain Steel Co. v. Norfolk & B. St. R. Co., 187 Mass. 500, 73 N.E. 646;French v. Jones, 191 Mass. 522, 78 N.E. 118, 7 L.R.A.,N.S., 525; Hunt Drug Co. v. Hubert, 298 Mass. 195, 10 N.E.2d 108. It is settled by the verdict returned for the defendant on the count for negligence, to which no exceptions by the plaintiff are pending, that the damage sustained by the plaintiff was not caused by any negligence of the defendant, and the question presented is whether the evidence was sufficient to maintain any of the causes of action set forth in the last three counts of the declaration.

We first consider the count in trespass. The plaintiff was not a licensee toward the defendant but was lawfully occupying a portion of the underground of the street by virtue of its permits. The defendant was also lawfully occupying another portion of this underground area by virtue of its contract with the city. Both were occupying entirely different portions of the way. There was no evidence that the construction of the sewer would necessarily result in damage to the plaintiff's property. The plaintiff's system had been installed years before the defendant began the construction of the sewer, and the plaintiff, so far as the defendant was concerned, was entitled to enjoy its property free from any damage caused by the negligence of the defendant and from any interference due to any trespass by the defendant. Alabama Power Co. v. Guntersville, 236 Ala. 503, 183 So. 396, 119 A.L.R. 429;New Hartford Water Co. v. Village Water Co., 87 Conn. 183, 87 A. 358;Tri-County Electric Membership Corp. v. Meador, 282 Ky. 377, 138 S.W.2d 993;Edison Illuminating Co. v. Misch, 200 Mich. 114, 166 N.W. 944;Atlantic City Gas & Water Co. v. Consumers' Gas & Fuel Co. 70 N.J.Eq. 536,4 Robb. 536,61 A. 750;Western Union Telegraph Co. v. Electric Light & Power Co. of Syracuse, 178 N.Y. 325, 70 N.E. 866;New York Steam Co. v. Foundation Co., 195 N.Y. 43, 87 N.E. 765, 21 L.R.A.,N.S., 470; Frontier Telephone Co. v. Hepp, 66 Misc. 265, 121 N.Y.S. 460;Rutland Electric Light Co. v. Marble City Electric Light Co., 65 Vt. 377, 26 A. 635,20 L.R.A. 821, 36 Am.St.Rep. 868.

Considerable quantities of cement were blown into the soil above the tunnel and some of it reached the plaintiff's underground system. At least the jury could so find. There was, however, no evidence that the defendant intended to damage the plaintiff's property. A trespass requires an affirmative voluntary act upon the part of a wrongdoer and in that respect differs from negligence. There are many instances where a man acts honestly and in good faith, only to find that he was mistaken and had committed a trespass upon his neighbor's land. Blatt v. McBarron, 161 Mass. 21, 36 N.E. 468,42 Am.St.Rep. 385;Congregation Beth Israel v. Heller, 231 Mass. 527, 121 N.E. 400; Cumberland Corp. v. Metropoulos, 241 Mass. 491, 135 N.E. 693;Geragosian v. Union Realty Co., 289 Mass. 104, 193 N.E. 726, 96 A.L.R. 1282. Those cases, however, differ somewhat from the instant case for in all of them the defendant intentionally and knowingly did the final act which itself constituted the...