Fiske Wharf & Warehouse Co. v. City of Boston

60 N.E. 7, 178 Mass. 526

• Court: Massachusetts Supreme Judicial Court
• Decided: April 13, 1901
• Status: Published

Opinion

Loring, J.

We understand that it is agreed by the parties that the old wharf was removed by the board of park commissioners of the defendant city, and that the construction of the new pier only was done by an independent contractor. It is further “ agreed that if, from the facts herein stated, the court should be of the opinion that the defendant is liable to the plaintiff in this action, judgment shall be entered for "the plaintiff in the sum of fifteen hundred and ninety-nine dollars and fifty cents (§1,599.50) and interest from February 20, 1899.”

It is plain that on the facts agreed the defendant city could be found to be liable for injury to the plaintiff’s dock, caused by water-logged timber and piles, part of the old wharf, being allowed to drift into, and to the bottom of, the plaintiff’s dock. The only defence set up by the city to. this claim is that the plaintiff’s remedy for that injury is not an action of tort but a petition for damages under St. 1875, c. 185, § 5. There is nothing in that; that section applies only to cases where damages are caused as part of the taking of land under the power of eminent domain, as in Holleran v. Boston, 176 Mass. 75.

As it is agreed that judgment shall be entered for the plaintiff in the sum of §1,599.50, if any liability is disclosed on the part of the defendant, it is immaterial that some of the piles and timber in. the bottom of the plaintiff’s dock came from the construction of the new pier by an independent contractor for whose acts the defendant was not liable.

Judgment affirmed.