Washburn & Moen Mfg. Co. v. City of Worcester
| Decision Date | 19 May 1891 |
| Parties | WASHBURN & MOEN MANUF'G CO. v. CITY OF WORCESTER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from superior court, Worcester county.
HEADNOTES
Eminent Domain 98
148 ----
148II Compensation
148k94 Elements of Compensation for Injuries to Property Not Taken
148k98 Alteration of Flow or Discharge of Water.
Under St.1867, c. 106, §§ 2, 3, giving the city council of Worcester authority to fix the boundaries of a certain brook to change its course, and use it as they shall adjudge necessary for purposes of sewerage, and providing for the recovery of damages by persons injured by the exercise of such authority, an owner of a mill on the river, into which the brook flowed at a point above the mill, may recover for the diminution in worth of the waters of the brook for use in connection with his land, by reason of the increased pollution thereof, through the appropriation of the brook for a common sewer.
148 ----
148II Compensation
148k94 Elements of Compensation for Injuries to Property Not Taken
148k98 Alteration of Flow or Discharge of Water.
He is not in such case entitled to damages as for a diversion of the whole of the brook from his premises.
148 ----
148IV Remedies of Owners of Property; Inverse Condemnation
148k271 Recovery of Damages.
Where after the filing of a petition by the owner of a mill on a river to recover from a city for the pollution of a brook flowing into the river at a point above the mill the council divert the waters of the brook, causing them to flow into the river below plaintiff's mill, he cannot, in such action recover damages therefor.
Kent & Dewey, for plaintiff.
Frank P. Goulding, for defendant.
The statute of 1867, c. 106, § 2, gives the city council of Worcester authority "to fix the boundaries of Mill brook," and other brooks therein named, "to alter change, widen, straighten, and deepen the channels of said brooks, and to use and appropriate said brooks, cover them pave and inclose them in retaining-walls, so far as they shall adjudge necessary for purposes of sewerage, drainage, and the public health." Section 3 authorizes the city council to take and hold land, water-rights, dams, or other real estate for the purposes above mentioned, and provides for the recovering of damages by persons injured by the exercise of authority under this statute. The statute of 1871, c. 354, § 5, extended the time within which applications for damages might be made by persons whose property had been taken or injured to two years from the passage of the act, and the petition in the present case was filed before the expiration of that time. Under these statutes, the petitioner may recover any damages which it suffered by the action of the city council under the provisions of the above-mentioned act at any time prior to the filing of the petition. The petitioner is a mill-owner on the Blackstone river, of which Mill brook is a tributary, and it has been accustomed to use the water flowing from Mill brook to furnish power for its mill. The city council, acting under the authority of this statute, passed five different votes or orders before the petition was filed, all having reference to different parts of Mill brook, and, in accordance with the terms of the orders, changed the course and diverted the waters of the brook in various places, and returned the waters, more or less affected by sewage, to the natural channel at a point above the land and mill of the petitioner, and above the point where the natural channel of Mill brook joined the Blackstone river. The waters of the stream in that condition came down into and through the works of the petitioner, and the waters were injuriously affected by the pollution from sewage. By the terms of each of these votes, the portion of the brook to which the vote related was appropriated to be used and forever after maintained as a main drain and common sewer. Long after the filing of the petition, by a vote passed March 8, 1880, the waters of Mill brook were diverted from the mill of the petitioner, and made to flow into the river at a point below the petitioner's land. It is contended in behalf of the petitioner that the several votes of the city council passed before the...
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