Washburn & Moen Manufacturing Co. v. City of Worcester

A bill in equity against a city to abate a nuisance alleged the conversion by the city, under authority of the Legislature, of the channel of a natural stream into a sewer, and the opening into it of other sewers and drains into which all the sewage of the city was received; that it flowed thereby into another natural stream and was discharged upon the plaintiffs land, thereby creating a nuisance and causing special damage to property of the plaintiff. Held, upon demurrer, that, in the absence of any allegation of negligence on the part of the city, either in the mode of discharging the sewage, or in omitting to take proper precautions to purify it, the bill could not be maintained.

Bill in equity to abate a nuisance, alleging the following facts : 1. The ownership by the plaintiff, a manufacturing corpora-. tian, of a tract of land in the southerly part of Worcester, in the village of Quinsigamond, lying on both sides of Blackstone River, having thereon a rolling mill, and tenement houses used by the workmen in the mill, and a dam across said river, and a pond of water for supplying water power for working said mill. 2. That the river is a natural stream of water, and the plaintiff is entitled to have the same flow through its estate pure and uncorrupted, and that it used the water thereof for the purpose of generating steam for the use of the mill. 3. That on April 16,1867, the voters of the city of Worcester accepted the St. of 1867, e. 106, entitled, “ An act concerning sewers and drains in the city of Worcester.” 4. That Mill Brook, mentioned in said act, is á natural stream of water flowing through the populous parts of the city, and empties into Blackstone River a short distance above the premises of the plaintiff. The bill then set forth various orders of the city council whereby the channel of Mill Brook had in some places been changed, and it had been laid out and appropriated as a main sewer, connected with and emptying into which were about thirty-one miles of sewers. The bill then proceeded as follows: “ From the sewers and drains entering Mill Brook channel as aforesaid, great quantities of sewage matter and filth, both solid and liquid, are discharged and carried into the water of said brook in the new channel, and the same, flowing through said new channel, are discharged and carried into said river, and are thence deposited upon the plaintiff’s said premises. “ By means of this filthy and deleterious matter, the water of said river flowing through the plaintiff’s premises is fouled and corrupted, and the plaintiff’s mill-pond filled up, and the most noisome, offensive and unwholesome smells, vapors and gases are emitted and discharged upon said premises. “ Thereby the plaintiff’s said premises are rendered filthy, unwholesome and inconvenient, and the plaintiff and those occupying the premises are greatly annoyed and incommoded, and the water of said river is rendered unfit for the plaintiff’s purposes, and the plaintiff is otherwise injured, and its said estate diminished in value. “ All which acts and doings of the defendant and its officers and agents are unauthorized by law and in violation of the rights of the plaintiff, and constitute a nuisance both private and public, from which the plaintiff derives special damage as aforesaid, and the defendant intends to continue and maintain the same.” The prayer of the bill was that the city be required to abate said nuisance, and discontinue said wrongful acts, and for further relief. The defendant demurred for want of equity; and the case was heard by Gray, C. J., and reserved for the consideration of the full court.