Perry v. City of Worcester

72 Mass. 544

Opinion

Shaw, C. J.

Footnotes

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The question raised and discussed in this case was, whether the damages sustained by the plaintiffs, in the occasional flooding of their mills, by the bridge erected over the Blackstone River, should be claimed as damages and awarded as such by the city or by county commissioners, or whether an action at law will lie to recover them.

We think the distinction is well established by authorities, and founded upon just principles, that where damage is necessarily done to the property of an individual by taking his land for a highway, town way or bridge, or by changing the grade of a way, extinguishing an easement, injuring an adjacent building, draining a well or otherwise, where such work is authorized by public authority for public use, and all damage necessarily incident to such work, such works are legally regarded as warranted by the public, in the exercise of the right of eminent domain they are legal and right; they are not unlawful; and therefore no action will lie, as for a tort, but damage must be sought by the owner of the property in the manner pointed out by law. Dodge v. County Commissioners, 3 Met. 380. Ashby v. Eastern Railroad, 5 Met. 368. Babcock v. Western Railroad, 9 Met. 553. Parker v. Boston & Maine Railroad, 3 Cush. 107.

But this presupposes that the public work thus authorized will be executed in a reasonably proper and skilful manner, with a just regard to the rights of private owners of estate. If done otherwise, the damage is not necessarily incident to the accomplishment of the public object, but to the improper and unskilful manner of doing it. Such damage to private property is not warranted by the authority under color of which it is done, and is not justifiable by it. It is unlawful, and a wrong, for the redress of which an action of tort will lie; whether against the immediate agent or his employers is not now a question.

In recurring to the facts agreed in the present case, it seems to us very clear that the case falls within the latter branch of the above distinction ; the damage suffered by the plaintiffs was not necessarily occasioned by the building of a suitable bridge, but by building a bridge with water ways so nan-owed and reduced that in times of freshet it would not discharge the water of the stream freely, and so set it back occasionally upon the plaintiffs’ mills.

We think the fact that Josiah G. Perry, one of the plaintiffs, was a member of the city council .and of the committee who made the report and the contract for building the bridge, cannot be relied on as a waiver of his right. He was acting in a public capacity. Probably neither he nor the other members actually knew or supposed that the bridge they recommended would cause damage to the mills, and the probability is, that it was not known till after the bridge was erected ; the default was in adopting a plan for a bridge, not contrived with sufficient skill and with a proper regard to the volume of water, the strength and rapidity of the current at all seasons, and the capacity of the water ways to discharge it. For such default, we think i cannot be held that the members of the committee were person ally estopped from asserting their private rights.

Judgment for the plaintiffs.

Thomas, J. did not sit in this case.