Buckley v. City of New Bedford

Holmes, J.

This is an action of tort to recover damages against the city of New Bedford for having created a nuisance on the plaintiff’s land. The plaintiff’s case was that the defendant constructed a system of sewers with so narrow an outlet that the sewage and the waters of a natural stream which were taken into the sewer were set back, and when the plaintiff- entered his drain into the sewer his cellar was overflowed through his drain. As we understand the report, the size of the outlet of the sewer was fixed by the mayor and aldermen at the time of the construction. The judge below ruled that the action could not be maintained.

The insufficiency of the outlet, by itself alone, did the plaintiff no harm. If he had not connected his drain with the sewer, so far as appears, his land would not, and could not, have been flowed. We are not called on to consider whether, in case of the adoption of a system resulting in destruction or serious damage to the plaintiff’s land under a statute providing no compensation, the rule would apply that an action does not lie against a city for a defect in the plan or system of drainage adopted by the mayor and aldermen, (Bates v. Westborough, 151 Mass. 174, *67 182 , and Child v. Boston, 4 Allen, 41 ,) or whether somebody, not necessarily the city, would be liable under such circumstances. See Merrifield v. Worcester, 110 Mass. 216 ; Johnston v. District of Columbia, 118 U. S. 19 ; Seifert v. Brooklyn, 101 N. Y. 136 ; Ashley v. Port Huron, 35 Mich. 296 ; Dillon Mun. Corp. §§ 1046, 1047, 1051.

The plaintiff’s cause of action, if any, depends upon and springs out of his right to connect his drain with the sewer. If that connection was wrongful, he could not complain of the consequences of making it. Unless he had a right to open the sewer, the city did him no wrong by keeping it full of sewage and choked. It does not follow, necessarily, that he stands better because he acted rightfully in making the connection. We assume in the plaintiff’s favor that he had a license, that he had paid or in some way had given a consideration for it, and that his right, whatever its exact nature, was one which he could insist on exercising in specie to some extent, and which could not be revoked at the mere whim of the defendant. Still, his right was only to connect with the existing system such as it was. Obviously, he could not complain that the system was not at a lower grade, and would not drain his land below the level at which the sewer was established. Child v. Boston, 4 Allen, 41 , 51, 52. It seems to us that, for the same reason, he could not complain that the sewer would not drain his land below a certain grade above its own level, if its inability to do so was due to the plan on which it was constructed. It cannot matter to which part of the plan the sewer owes its inability to drain lower, whether the level at which it is constructed, the degree of its pitch, or the size of its mouth.

If this be so, it follows that the plaintiff has no right to require the city to keep the contents of its sewer from overflowing any level below that which the sewer will drain in case he sees fit to open a connection into it, — no permanent property right, that is, for we are not considering at whose peril the original opening was made. After the original overflow, at least, the plaintiff had notice of how the sewer worked, and his remedy was in his own hands by stopping his drain. This action is not brought for misrepresentations, or for momentary damage caused by the plaintiff’s doing what he was led to suppose, or had a right *68 reasonably to suppose, that he might do with safety; it is brought for a continuing nuisance on the footing of a right of property which is infringed. The plaintiff’s right of property, if it be one, is not an absolute right to make a hole at a certain height in the sewer, or to connect a pipe having a mouth at a certain height with the sewer, and to require the city thereafter to see at its peril that he does not suffer by the opening. His right is simply to connect a pipe having a mouth at such height as will be safe under the existing system. If he connects one having a mouth lower than that, he maintains it at his own risk after experience has shown the danger.

It will be understood that we are not speaking of a case where there is negligence in the construction or maintenance of a sewer after the plan has been settled, as in Child v. Boston, Bates v. Westborough, and that class of cases. See Fort Wayne v. Coombs, 107 Ind. 75, 83 ; Buchanan v. Duluth, 40 Minn. 402 . Also, we have no occasion to consider what would be the law in the present case if the ordinance of New Bedford had purported to require the plaintiff to connect his drain with the sewer. Barry v. Lowell, 8 Allen, 127 , 128. There is no evidence of any such requirement. Judgment on the verdict.