Bacon v. City of Boston

28 N.E. 9, 154 Mass. 100, 1891 Mass. LEXIS 65

• Court: Massachusetts Supreme Judicial Court
• Decided: June 25, 1891
• Status: Published

Opinion

Allen, J.

The St. of 1881, c. 303, § 3, by its true construction, does not authorize the city of Boston to create the nuisance to the plaintiff’s land for which he seeks to recover damages. For purposes beneficial to the water supply of Boston, the city was authorized to take such lands in Woburn or Winchester, on or near the line of a sewer, as it should deem necessary, and construct works in order to treat sewage, and free it from noxious and offensive matter and properties. The selection of the lands to be taken, within the prescribed limits, was left to the city. It does not appear that it was necessary to create such a nuisance as the plaintiff has suffered from. We need not consider whether the Legislature had power to authorize such an injury without payment of compensation. The general rule is, that the Legislature may authorize small nuisances without compensation, but not great ones. Sawyer v. Davis, 136 Mass. 239, 243. But it will not be assumed that the Legislature intended to authorize a nuisance, unless this is the necessary result of the powers granted. Morse v. Worcester, 139 Mass. 389, 391. Boston Belting Co. v. Boston, 149 Mass. 44. Baltimore f Potomac Railroad v. Fifth Baptist Church, 108 U. S. 317. See also Metropolitan Asylum District v. Hill, 6 App. Cas. 193; London, Brighton, & South Coast Railway v. Truman, 11 App. Cas. 45; Cogswell v. New York, New Haven, & Hartford Railroad, 103 N. Y. 10, 21; Edmondson v. Moberly, 98 Misso. 523. In the statute of 1881, the Legislature enacted that one nuisance should cease, and authorized the taking of lands and construction of works for the purpose of treating sewage, giving a wide discretion as to the selection of the place, it provided for compensation for the taking of the lands, but none for other injury to owners of lands, and upon well established rules it must be deemed that the Legislature did not intend to sanction a serious nuisance to lands not taken.

It is contended by the plaintiff, that the nuisance to his land is such as to amount to a substantial taking of it; to which the defendant replies, that, if so, the plaintiff’s sole remedy is under the proceedings provided for in the statute, and not by an action at law. Without going into the vexed question of what sort of a nuisance may amount to a taking of property, it is enough for present purposes to say that here was no taking of the plaintiff’s land within the meaning of the St. of 1881, c. 303, § 3. That section only provides compensation for lands actually taken by the city, and does not include compensation for such an injury as was shown in this case. The statutory remedy, therefore, was not open to the plaintiff, and he was left to his action at law.

Fxceptions overruled.