Morton, J.
As the presiding judge directed a verdict for the defendants, we must, for the purposes of this hearing, assume an [226]*226established all the facts in favor of the plaintiff which the jury would be warranted in finding upon the evidence.
There was evidence tending to show that the plaintiff is the owner of a wharf and adjoining land, situated upon a creek in which the tide ebbs and flows, and which is the outlet of a natural stream flowing from the Watuppa ponds to the sea; that before the commencement of this suit, the city of Fall River had constructed a system of drains or sewers by which the water over a huge tract of land was collected into one channel and discharged into the head of the creek, and that the gravel, sand and sediment carried by the sewers had accumulated and partially filled up the creek in front of the plaintiff’s wharf. It was for the jury to determine whether this created a nuisance. The question presented for our decision is whether, upon any facts which the jury might find upon the evidence, the plaintiff can maintain a private action for such nuisance.
The defendants contend that what the plaintiff calls sewers were mere street gutters, designed to provide for the surface water, and built as a part of the construction and repair, of the streets. It is well settled law in this state that a city or town is not liable to an action for an injury done to a landholder by diverting the surface water and causing it to flow upon his land, if this is done in constructing of repairing a highway. Flagg v. Worcester, 13 Gray, 601. Turner v. Dartmouth, 13 Allen, 291. But the acts of the defendants went much beyond the mere diversion of surface water as an incident of the repairs of the streets. They built an extensive and connected system of drains by which the water from a number of streets was collected into one current and discharged into a cesspool or into the creek at a point outside the limits of the streets/ They thus drained into the creek a territory of sixty to seventy-five acres, of which only about fifteen to twenty acres naturally drained into it. If the design of the system was merely to provide for the surface water, we are of opinion that the case does not fall within the principle of Flagg v. Worcester and the other cases cited by the defendants. But there was evidence tending to show that these were more than street gutters. The records of the city government generally [227]*227describe them as “ sewers,” and show that a portion of them, at least, were laid out under the laws authorizing the mayor and aldermen to lay out and make main drains and common sewers, and to assess a portion of the expense upon such as enter their particular drains into them or otherwise receive benefit from them. By their nature and construction they are calculated to serve the purposes of common sewers. Although there was no direct evidence that any individuals had entered their drains into them, it was competent for the jury to find that they were a part of the system of common sewers maintained and owned by the city.
The defendants had the right to make these sewers or drains, and to discharge them into the sea. But this right is subject to some limitations. It does not include the right to create a nuisance, public or private. If the sewers or drains are so built or managed as to create a public nuisance, the defendants are indictable ; if a private nuisance is created, they are answerable in damages to the person injured. Haskell v. New Bedford, 108 Mass. 208. Emery v. Lowell, 104 Mass. 13. Child v. Boston, 4 Allen, 41. Richardson v. Boston, 19 How. 263. Gerrish v. Brown, 51 Maine, 256. Attorney General v. Birmingham, 4 Kay & Johns. 528.
The remaining and perhaps most difficult question in this case is, whether the plaintiff has proved such an injury as entitles him to maintain a private action. There is" no doubt as to the general rules of law upon this subject. An individual cannot maintain a private action for a public nuisance by reason of any injury which he suffers in common with the public. The only remedy is by indictment or other public prosecution. But if, by reason of a public nuisance, an individual sustains peculiar injury, differing i:i kind, and not merely in degree or extent, from that which the general public sustains from the same cause, he may recover damages in a private suit for such peculiar injury. The difficulty usually is in applying these rules, and determining what injuries are peculiar and different in kind from the common public injury. The authorities upon the subject are numerous, but we shall refer only to a few of the cases decided in this state, where the ten[228]*228dency has been to restrict the right t$ bring a private suit within narrower limits than seem to have been adopted in some cf the English cases.
In Blood v. Nashua Lowell Railroad Co. 2 Gray, 137, the nuisance was a bridge built across a stream in such a manner as to obstruct it, the plaintiff owning and carrying on a saw-mill above the bridge. It was held that the plaintiff could not recover for damages caused by the obstruction of the stream rendering it more difficult and expensive to float logs to his mill, that being an injury suffered by the plaintiff in common with the rest of the public, and differing only in degree and not in kind; but that he might recover for setting back the water on his mills, that being an inconvenience special and peculiar to himself.
In Brightman v. Fairhaven, 7 Gray, 271, the obstruction complained of was a bridge across a navigable stream. The plaintiff owned land above the bridge, purchased after the bridge was built, and claimed damages upon the ground that the obstruction prevented the use of his land as a spar yard, and interfered with his access thereto from the sea. But the court held that as the damages claimed were “ such as might be sustained by the other owners of land on the stream by reason of its not being navigable, and tending only to show a general depreciation of the land occasioned by the obstructions in the river,” he could not maintain a private action.
In Willard v. Cambridge, 3 Allen, 574, the alleged nuisance consisted in the removal of a bridge forming a part of a highway; the plaintiff had a lumber, wood and coal wharf adjacent to the bridge, and alleged that he was injured in his business, that access to his wharf was destroyed, that his houses occupied by tenants were rendered less desirable, and that he was obliged to abate from his rents in order to keep his tenants. But the court held that these damages were of the same kind as those caused to all persons who had occasion to use, and who owned property on, the highway leading to the bridge, and were not special or peculiar to the plaintiff so as to furnish a good cause of action.
In Fall River Iron Works Co. v. Old Colony & Fall River Railroad Co. 5 Allen, 221, it was held that if the public nuisance [229]*229complained of merely caused an obstruction to navigation, the plaintiffs had no private remedy, though the injury sustained by them was, by reason of their proximity to the nuisance, much greater in degree than that sustained by others.
The case of Harvard College v.
Free access — add to your briefcase to read the full text and ask questions with AI
Morton, J.
As the presiding judge directed a verdict for the defendants, we must, for the purposes of this hearing, assume an [226]*226established all the facts in favor of the plaintiff which the jury would be warranted in finding upon the evidence.
There was evidence tending to show that the plaintiff is the owner of a wharf and adjoining land, situated upon a creek in which the tide ebbs and flows, and which is the outlet of a natural stream flowing from the Watuppa ponds to the sea; that before the commencement of this suit, the city of Fall River had constructed a system of drains or sewers by which the water over a huge tract of land was collected into one channel and discharged into the head of the creek, and that the gravel, sand and sediment carried by the sewers had accumulated and partially filled up the creek in front of the plaintiff’s wharf. It was for the jury to determine whether this created a nuisance. The question presented for our decision is whether, upon any facts which the jury might find upon the evidence, the plaintiff can maintain a private action for such nuisance.
The defendants contend that what the plaintiff calls sewers were mere street gutters, designed to provide for the surface water, and built as a part of the construction and repair, of the streets. It is well settled law in this state that a city or town is not liable to an action for an injury done to a landholder by diverting the surface water and causing it to flow upon his land, if this is done in constructing of repairing a highway. Flagg v. Worcester, 13 Gray, 601. Turner v. Dartmouth, 13 Allen, 291. But the acts of the defendants went much beyond the mere diversion of surface water as an incident of the repairs of the streets. They built an extensive and connected system of drains by which the water from a number of streets was collected into one current and discharged into a cesspool or into the creek at a point outside the limits of the streets/ They thus drained into the creek a territory of sixty to seventy-five acres, of which only about fifteen to twenty acres naturally drained into it. If the design of the system was merely to provide for the surface water, we are of opinion that the case does not fall within the principle of Flagg v. Worcester and the other cases cited by the defendants. But there was evidence tending to show that these were more than street gutters. The records of the city government generally [227]*227describe them as “ sewers,” and show that a portion of them, at least, were laid out under the laws authorizing the mayor and aldermen to lay out and make main drains and common sewers, and to assess a portion of the expense upon such as enter their particular drains into them or otherwise receive benefit from them. By their nature and construction they are calculated to serve the purposes of common sewers. Although there was no direct evidence that any individuals had entered their drains into them, it was competent for the jury to find that they were a part of the system of common sewers maintained and owned by the city.
The defendants had the right to make these sewers or drains, and to discharge them into the sea. But this right is subject to some limitations. It does not include the right to create a nuisance, public or private. If the sewers or drains are so built or managed as to create a public nuisance, the defendants are indictable ; if a private nuisance is created, they are answerable in damages to the person injured. Haskell v. New Bedford, 108 Mass. 208. Emery v. Lowell, 104 Mass. 13. Child v. Boston, 4 Allen, 41. Richardson v. Boston, 19 How. 263. Gerrish v. Brown, 51 Maine, 256. Attorney General v. Birmingham, 4 Kay & Johns. 528.
The remaining and perhaps most difficult question in this case is, whether the plaintiff has proved such an injury as entitles him to maintain a private action. There is" no doubt as to the general rules of law upon this subject. An individual cannot maintain a private action for a public nuisance by reason of any injury which he suffers in common with the public. The only remedy is by indictment or other public prosecution. But if, by reason of a public nuisance, an individual sustains peculiar injury, differing i:i kind, and not merely in degree or extent, from that which the general public sustains from the same cause, he may recover damages in a private suit for such peculiar injury. The difficulty usually is in applying these rules, and determining what injuries are peculiar and different in kind from the common public injury. The authorities upon the subject are numerous, but we shall refer only to a few of the cases decided in this state, where the ten[228]*228dency has been to restrict the right t$ bring a private suit within narrower limits than seem to have been adopted in some cf the English cases.
In Blood v. Nashua Lowell Railroad Co. 2 Gray, 137, the nuisance was a bridge built across a stream in such a manner as to obstruct it, the plaintiff owning and carrying on a saw-mill above the bridge. It was held that the plaintiff could not recover for damages caused by the obstruction of the stream rendering it more difficult and expensive to float logs to his mill, that being an injury suffered by the plaintiff in common with the rest of the public, and differing only in degree and not in kind; but that he might recover for setting back the water on his mills, that being an inconvenience special and peculiar to himself.
In Brightman v. Fairhaven, 7 Gray, 271, the obstruction complained of was a bridge across a navigable stream. The plaintiff owned land above the bridge, purchased after the bridge was built, and claimed damages upon the ground that the obstruction prevented the use of his land as a spar yard, and interfered with his access thereto from the sea. But the court held that as the damages claimed were “ such as might be sustained by the other owners of land on the stream by reason of its not being navigable, and tending only to show a general depreciation of the land occasioned by the obstructions in the river,” he could not maintain a private action.
In Willard v. Cambridge, 3 Allen, 574, the alleged nuisance consisted in the removal of a bridge forming a part of a highway; the plaintiff had a lumber, wood and coal wharf adjacent to the bridge, and alleged that he was injured in his business, that access to his wharf was destroyed, that his houses occupied by tenants were rendered less desirable, and that he was obliged to abate from his rents in order to keep his tenants. But the court held that these damages were of the same kind as those caused to all persons who had occasion to use, and who owned property on, the highway leading to the bridge, and were not special or peculiar to the plaintiff so as to furnish a good cause of action.
In Fall River Iron Works Co. v. Old Colony & Fall River Railroad Co. 5 Allen, 221, it was held that if the public nuisance [229]*229complained of merely caused an obstruction to navigation, the plaintiffs had no private remedy, though the injury sustained by them was, by reason of their proximity to the nuisance, much greater in degree than that sustained by others.
The case of Harvard College v. Stearns, 15 Gray, 1, at first view, seems opposed to the plaintiff’s right to maintain this action, There the nuisance consisted in filling up a navigable creek so as to cut off the plaintiffs’ access to their land bordering on the creek, and it was held that the action could not be maintained. But it will be seen that the only damage claimed by the plaintiffs was for the diminished value of their land by reason of the obstruction of the creek, and the court decide the case upon the narrow ground that the action would not lie solely for this injury. In the opinion the court say: “ No evidence appears to have been offered, or any claim set up or instructions asked of the court upon the ground of any particular actual hindrance or delay to the plaintiffs, or obstruction in reference to any case of actual intended use of their land by passing through the creek. The. claim was for injury to their land by reason of an obstruction placed in a navigable stream or public way, whereby them land would be rendered more difficult of access and less valuable.”
The case at bar would have been like that, if the plaintiff had merely proved that the defendants had obstructed the creek, and that such obstruction had diminished the value of his wharf by making the access to it more difficult.
It follows from the authorities we have cited that the plaintiff cannot maintain a private action for any loss or injury to him arising merely from an obstruction to navigation caused by the defendants. If, for instance, the effect of the defendants’ acts had been merely to create a bar across the mouth of the creek, so as to destroy or injure its navigability, the plaintiff could not maintain an action because it was thereby rendered more difficult and expensive to reach his wharf, or because his wharf was rendered less valuable. Those would be injuries of the same kind sustained by all other persons who have occasion to use the creek, or who owned land bordering upon it. But in this case the evi[230]*230dence tended to show that the effect of the sewers had been to fill up the creek directly in front of and adjoining the plaintiff’s wharf, so that his vessels which he was accustomed to employ to bring grain to his wharf and elevator could not lie at the wharf on account of the diminished depth of water. We are of opinion that this was an injury, special and peculiar to him, for which he may maintain this action. He has a right to the water at his wharf at its natural depth. By the filling up of the creek, his use of his wharf for the purposes for which it had been constructed and actually used, was impaired, and he was subject to an inconvenience and injury which was not common to the public. Suppose a person had tipped stones off his wharf, forming a pile which prevented any profitable use of it. It would be an obstruction to the navigation of the creek, and to that extent the injury would be a common one to all the public, but the plaintiff would suffer an injury, in the hindrance of the use of his property, to which no one else would be exposed.
In Blood v. Nashua & Lowell Railroad Co., ubi supra, the plaintiff recovered damages because an obstruction in the stream caused the water to flow back upon his mills.
In Haskell v. New Bedford, ubi supra, the plaintiff was held entitled to recover, among other elements of damage, for injuries of the same character as those complained of in this case. See also Stetson v. Faxon, 19 Pick. 147; Brewer v. Boston, Clinton & Fitchburg Railroad Co., ante, 52.
Upon the whole case we are of opinion that there was evidence which should have been submitted to the jury, tending to show that the defendants illegally created a nuisance by filling up the creek, and that the plaintiff suffered thereby an injury special and peculiar to himself, for which he is entitled to recover in this action. Verdict set aside.