City of Cambridge v. Munroe

Ames, J.

Upon a reconsideration of these cases with the aid of the arguments submitted in writing on the motion for a rehearing, we see no reason to change the result already announced, or to alter the opinion in any respect, except by stating the grounds of decision somewhat more fully.

The St. of 1872, o. 299, was passed, as its title imports, “for the prevention and abatement of nuisances, and the preservation of the public health in the cities of Cambridge and Somerville.” It was passed for the reason that a portion of the territory of each of these two cities was too low for convenient and proper occupation in its natural condition, and that, in order to secure the sanitary advantages of a complete drainage, it was necessary that these two cities should be entrusted with the power of raising such low lands to a proper level above mean low-water mark. This power is given, not to the boards of health, but to the boards of mayor and aldermen of these cities respectively.

By the fourth section of the statute, the board of mayor and aldermen was authorized to order the owners of lands, the surface of which was below thirteen feet above mean low-water mark, to raise the grade of such lands, “filling up the same with good ma *500 terials,” k so as to abate and prevent nuisances, and to preserve the public health of the city.” By the fifth section, in case the owner of such land fails to comply with such order within six months after it is served upon him, the board of mayor and aider-men of the city may raise the grade, and all necessary expenses incurred thereby shall constitute a lien upon the land so filled, and may be collected “ as is provided by law for the collection of taxes upon real estate, and in case of land sold for taxes.’ The remaining sections provide remedies for any party who is dissatisfied with the assessment of the expenses, by petition to the county commissioners for a jury to revise the assessment, or by surrendering his land to the city.

It appears by the bill of exceptions that the premises owned or occupied by these defendants were situated in a part of the city of Cambridge where the natural surface of the soil was so low as to come within the description of land to which the statute above cited might well be considered applicable. It is expressly stated that the nuisance complained of consisted of stagnant and filthy water from cesspools, privies, &c., and surface water flowing from adjacent land of a higher grade, for which there was no practicable outlet from the defendants’ premises. It is also found by the judge who tried the cases that the principal, if not the exclusive, cause of this state of things was the filling of West Dock by the city to a grade higher than the grade of the defendants’ land, thereby cutting off their drainage and exposing them to the flow of surface water from West Dock.

Such being the condition of the defendants’ premises, they presented a joint petition, not to the board of health, but to the board of aldermen, eo nomine, for relief from the nuisance, which they describe as having been occasioned by the filling up of the land and territory known as West Dock, caused by an order from the city of Cambridge under the grade law passed in 1872. Upon the facts of the case, they contended that the nuisance was occasioned, not by any act or neglect of their own, but that it resulted directly from the act of the city itself. The aider-men, instead of acting upon this petition, as such, saw fit to refer it to the board of health. It is true that both boards are made up of the same persons, yet the powers of the two boards *501 are entirely distinct and separate. The result of this reference of the petition was, that the defendants were ordered to fill their lands up to grade at their own expense; and, upon their failure to do so, the aldermen, “ as a board of health,” caused the city engineer to perform the work. By the bill of exceptions, it appears that the grade to which the lands were raised by the engineer under this order was “ grade 13 above mean low-water, that is, grade 18 of city of Cambridge base, which is five feet below low-water mark.” It thus appears that the city of Cambridge had established a grade, which must have been under the St. of 1872. The proceedings recognize the existence of a preexisting and established grade, which the board of health had no authority to establish, but which the board of mayor and aldermen on behalf of the city was authorized to establish by the terms of that statute.

Whatever aspect the case may take upon a new trial, we do not find upon the facts reported anything that satisfies us that the case as presented on this bill of exceptions was one which could be dealt with by a board of health, under the general powers conferred upon it by the Gen. Sts. c. 26. If the defendants had a right to claim the benefit of the St. of 1872, they could not be deprived of that right by the determination of the aldermen to act in the matter merely as a board of health. The improvements or operations which that statute has in view might, and ordinarily would, require the filling up of extensive tracts of land, and could rarely, if at all, be effectively carried out by the separate labor of independent landowners, each within the limits of his own land. The cases now before us apparently apply to a tract of land occupied by numerous owners, and bounded on each of its four sides by a street. It may be that no one of these proprietors could fill up his own land to the proper height without encroaching upon, and partially occupying, the land of his neighbors. The statute evidently contemplates the prevention or abatement of nuisances upon a general system, applicable to lots of land belonging to any number of proprietors. If the plaintiff is right in its view of the case, the aldermen, by acting as a board of health, might enclose a large and populous district with a wall or embankment of the height prescribed by the statute, and compel the landowners within the enclosure to *502 complete the rest of the filling at their own expense, and thus deprive them of all the remedies intended to he given them by the statute. The law will not bear this interpretation.

The powers conferred upon boards of health by the Gen. Sts. c. 26, were intended to provide a summary and speedy remedy for the ordinary case of a local nuisance occasioned by the neglect or mismanagement of an individual upon his own land, which could be removed or abated by him personally. On the other hand, where the city, by establishing a new grade under the St. of 1872, has created a necessity for filling up lower lands to the prescribed new level, the proceedings must be such as are pointed out by the statute. It is true that the fourth section in terms provides that the mayor and aldermen may order the owner to raise the grade, but we do not understand this form of expression to give to them any right, if they give such order, to enforce it in any other manner than that statute prescribes, or to take away any of the rights or remedies intended to be secured by it to the landowner.

If these cases come within the terms of the St. of 1872, the only mode in which the city could throw upon the landowners the expense.of the raising and filling would be that which is expressly pointed out by the statute itself. It gives no authority to the city to recover that expense by an action of contract against the landowner, and in that event the present actions could not be maintained.

If, however, it should be found that the case was one in which proceedings under the general power of the board of health could have been maintained under the Gen. Sts. e. 26, there still remains a question, upon which we do not now express any opinion, whether it was competent for the board of health to pass an order requiring a numerous body of landowners, taken collectively, to abate a nuisance upon the lands of all of them, produced by a cause affecting all of them; or whether the order should not have been addressed to the proprietors severally, and by name, requiring each to provide for his own land. However that may be, we find it necessary that there should be a new trial.

Exceptions sustained.