Emery v. City of Lowell

109 Mass. 197

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1872
• Status: Published

Opinion

Gray, J.

When this case was before us at a former stage, it was held that under the amended declaration the city was liable to the plaintiff for damages caused to his estate by the improper construction of the drain by the city, as well as by its neglect to keep the drain in proper repair. 104 Mass. 13.

At the second trial, there was evidence tending to show that the subsequent change by the Proprietors of Locks and Canals in the grade of the drain was made by authority from the city ; and it was rightly ruled that, if the plaintiff merely assented to a change made therein by such authority, the city would be liable for neglect in respect to the maintenance and use of the drain for the drainage of the streets, although such change increased the liability to obstruction. Neither the plaintiff’s assent to the alteration in the drain, nor his acceptance of the proposal of the Proprietors of Locks and Canals to save him harmless from any injury occasioned thereby, can affect his right to recover damages for such injury, if the city authorized the alteration.

The plaintiff, under the general allegation of damages in the writ, was entitled to recover for all injuries to his estate, which were the necessary or natural consequence of the acts of the city, alleged in the declaration. Gen. Sts. c. 129, § 2, cl. 3, and schedule of forms annexed to § 87. Prentiss v. Barnes, 6 Allen, 410. The jury were rightly instructed that such damages from the choking up of the drain and the causing of water and filth to flow back into the plaintiff’s cellar included any injury which affected the estate itself, or diminished the value of its use and occupation, by reason of the inconvenience and annoyance of flowing the cellar, or of unwholesome or disagreeable smells, or of insects thereby generated or attracted to the house, and his reasonable expenses in preventing or removing the nuisance, and of changes and repairs thereby rendered necessary, and which he could not by reasonable care and diligence have aveited.

Exceptions overruled.