Miles v. City of Worcester

13 L.R.A. 841, 28 N.E. 676, 154 Mass. 511, 1891 Mass. LEXIS 173

Opinion

Allen, J.

It is obvious that the defendant’s wall, in its present position upon the plaintiff’s land, must be deemed an actionable nuisance, unless the defendant can claim exemption from responsibility on some special ground. Codman v. Evans,

7 Allen, 431. Nichols v. Boston, 98 Mass. 39, 43. Fay v. Prentice, 1 C. B. 828. The defendant suggests that it is not liable, because the wall was built and maintained solely for the public use, and with the sole view to the general benefit and under the requirement of general laws; and that the case cannot be distinguished in principle from the line of cases beginning with Hill v. Boston, 122 Mass. 344, and ending with Howard v. Worcester, 153 Mass. 426. We are not aware, however, that it has ever been held that a private nuisance to property can be justified or excused on that ground. The verdict shows a continuous occupation of the plaintiff’s land by the encroachment of the defendant’s wall. The question of negligence in the building of the wall is not material. The erection was completed, and was accepted by the defendant, and is now in the defendant’s sole charge; and if it is a nuisance, the defendant is responsible. Staple v. Spring, 10 Mass. 72, 74. Nichols v. Boston, 98 Mass. 39. Such an occupation of the plaintiff’s land cannot be excused for the reasons assigned. A city cannot enlarge its school grounds by taking in the land of an adjoining owner by means of a wall or fence. The public use and the general benefit will not justify such a nuisance to the property of another. If more land is needed, it must be taken in the regular way, and compensation paid, but if, by the action of the elements or otherwise, without the plaintiff’s fault, the defendant’s wall comes upon the plaintiff’s land and continues there, it becomes a nuisance for which the defendant is responsible; and so are the authorities. Gorham v. Gross, 125 Mass. 232, 239. Khron v. Brock, 144 Mass. 516. Eastman v. Meredith, 36 N. H. 284, 296. Hay v. Cohoes Co. 2 Comst. 159. Tremain v. Cohoes Co. 2 Comst. 163. Weet v. Brockport, 16 N. Y. 161, 172, note. St. Peter v. Denison, 58 N. Y. 416, 421. Mayor & City Council of Cumberland v. Willison, 50 Md. 138. Harper v. Milwaukee, 30 Wis. 365. Pumpelly v. Green Bay Co. 13 Wall. 166, 181. Dillon Mun. Corp. § 985.

The case is distinguishable from Middlesex Co. v. McCue, 149 Mass. 103, where soil from the defendant’s land upon a hillside was washed into the plaintiff’s mill-pond by the rains, when the defendant had built no artificial structure, and had done nothing more than to cultivate his land in the ordinary way.

Exceptions overruled.