Washburn & Moen Manufacturing Company v. City of Worcester

• Decision Date: 04 January 1875
• Citation: 116 Mass. 458
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Washburn & Moen Manufacturing Company v. City of Worcester

116 Mass. 458

Washburn & Moen Manufacturing Company v. City of Worcester

Supreme Court of Massachusetts

January 4, 1875

Argued October 2, 1874

Worcester. Bill in equity to abate a nuisance, alleging the following facts:

1. The ownership by the plaintiff, a manufacturing corporation, of a tract of land in the southerly part of Worcester, in the village of Quinsigamond, lying on both sides of Blackstone River, having thereon a rolling mill, and tenement houses used by the workmen in the mill, and a dam across said river and a pond of water for supplying water power for working said mill.

2. That the river is a natural stream of water, and the plaintiff is entitled to have the same flow through its estate pure and uncorrupted, and that it used the water thereof for the purpose of generating steam for the use of the mill.

3. That on April 16, 1867, the voters of the city of Worcester accepted the St. of 1867, c. 106, entitled, "An act concerning sewers and drains in the city of Worcester."

4. That Mill Brook, mentioned in said act, is a natural stream of water flowing through the populous parts of the city, and empties into Blackstone River a short distance above the premises of the plaintiff.

The bill then set forth various orders of the city council whereby the channel of Mill Brook had in some places been changed, and it had been laid out and appropriated as a main sewer, connected with and emptying into which were about thirty-one miles of sewers. The bill then proceeded as follows:

"From the sewers and drains entering Mill Brook channel as aforesaid, great quantities of sewage matter and filth, both solid and liquid, are discharged and carried into the water of said brook in the new channel, and the same, flowing through said new channel, are discharged and carried into said river, and are thence deposited upon the plaintiff's said premises.

"By means of this filthy and deleterious matter, the water of said river flowing through the plaintiff's premises is fouled and corrupted, and the plaintiff's mill-pond filled up, and the most noisome, offensive and unwholesome smells, vapors and gases are emitted and discharged upon said premises.

"Thereby the plaintiff's said premises are rendered filthy unwholesome and inconvenient, and the plaintiff and those occupying the premises are greatly annoyed and incommoded and the water of said river is rendered unfit for the plaintiff's purposes, and the plaintiff is otherwise injured, and its said estate diminished in value.

"All which acts and doings of the defendant and its officers and agents are unauthorized by law and in violation of the rights of the plaintiff, and constitute a nuisance both private and public, from which the plaintiff derives special damage as aforesaid, and the defendant intends to continue and maintain the same."

The prayer of the bill was that the city be required to abate said nuisance, and discontinue said wrongful acts, and for further relief.

The defendant demurred for want of equity; and the case was heard by Gray C. J., and reserved for the consideration of the full court.

Demurrer sustained.

G. F Hoar & T. L. Nelson, for the plaintiff. 1. The plaintiff concedes that the city is not liable for such injuries to the stream below, caused by the construction of public works like sewers and streets, as would result to the riparian owner from the reasonable use of the stream above him by the inhabitants of a populous city, nor liable as a wrongdoer for any consequences of the execution with due care and skill of the lawful orders of the city council for the construction and maintenance of such works. The ground of the complaint is not the injury to the purity of the stream; but the injury to the atmosphere and the land, by discharging upon the plaintiff's estate, by artificial means, the sewage of a large city, to an extent which creates both a public and private nuisance. The demurrer confesses that by means of the defendant's structure "great quantities of sewage matter and filth,...