Wilson v. City of New Bedford

Chapman, C. J. The act of 1863, e. 163, for supplying the city of New Bedford with pure water, grants authority to the city to exercise the right of eminent domain by taking the land and streams therein named, erecting dams and laying water pipes. By § 6, the city is made liable to pay all damages that shall be sustained by any persons in their property by the taking of land, water or water rights, or by the construction of any dams, aqueducts, reservoirs or other works for the purposes of the act. This provision is in conformity with the tenth article of the Declaration of Rights ; and both the grant of authority and the obligation to make compensation are to have a reasonable interpretation. The city has taken the stream mentioned in the petition, and erected a dam across it, thereby creating a reservoir. The petitioner alleges that this reservoir has caused damage to him by reason of the percolation of water from the reservoir, under [265] ground, to his house cellar and barn cellar, about a thousand feet distant from the dam, and alongside of it, and preventing the natural passage of water underground into the natural stream on which the dam is constructed. The respondents contend that they are not hable to make compensation for an injury of this character. It is true that the rights of neighboring proprietors of lands > in underground waters which remain still, or naturally percolate through the soil without forming channels, are very different from their rights in watercourses. The percolating water belongs to the owner of the land, as much as the land itself, or the rocks and stones in it. Therefore he may dig a well, and make it very large, and draw up the water, by machinery or otherwise, in such quantities as to supply aqueducts for a large neighborhood. He may thus take the water which would otherwise pass by natural percolation into his neighbor’s land, and draw off the water which may come by natural percolation from his neighbor’s land; and his neighbor may, by a wall or other obstruction, retain the water which is upon his own land, and prevent the water from coming into his soil. This principle was discussed in Greenleaf v. Francis, 18 Pick, 117; and afterwards in Chasemore v. Richards, 7 H. L. Cas. 349 ; and also in several other cases in England and this country. But the present case is of a different character. The respondents have so raised their dam and reservoir as to cause an artificial pressure of the water through the soil, and by its action it has flooded the petitioner’s cellars. Probably it cannot be ascertained precisely how it acts underground. In this Commonwealth, complaints under our mill acts have for many years presented cases quite similar to this. Lands are overflowed by mill ponds, and instead of an action at common law a process is provided by statute for the recovery of damages, quite similar to the process in this case. The question what kind of damages should be estimated has been discussed and settled in several cases. In Monson & Brimfield Manufacturing Co. v. Fuller, 15 Pick. 554, it was decided that damages occasioned by the percolation of water through the earth from the pond to neighboring uplands, and causing them to produce poorer grass [266] or a smaller quantity of grass, could be recovered. In Fuller v. Chicopee Manufacturing Co. 16 Gray, 46, it was decided that damages occasioned by raising the pond, so as to affect injuriously the water of the plaintiff’s well, were recoverable; and no distinction was made as to whether it affected the well by overflowing or percolation. This principle is just; for the water often injures land which it never overflows; and where the soil is porous, the water may by percolation render a dwelling-house uninhabitable, or destroy the value of large tracts of land. Upon the same principle, it was held in Ball v. Nye, 99 Mass. 582, that it was actionable to cause filthy water to percolate from the defendant’s vault through his own soil and thence into his neighbor’s soil, and thus injure his neighbor’s well and cellar. In Pixley v. Clark, 35 N. Y. 520, the same principle was held in regard to water which percolates through the banks of a reservoir created by erecting a dam across a stream, and damages the plaintiff’s land. Rylands v. Fletcher, Law Rep. 3 H. L. 330, affirming the decision of the exchequer chamber, states the same principle, in application to a reservoir created artificially, from which the water flowed through some passages apparently filled up, and long disused, into the plaintiff’s mine. Lord Cranworth, in delivering his opinion, said : “ If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.” He distinguishes between natural percolation and that which is caused artificially. On this point he says: “ If water naturally rising in the defendant’s land had by percolation found its way down to the plaintiff’s mine through the old workings, and so had impeded his operations, that would not have afforded him any ground of complaint.” “ But that is not the real state of the case. The defendants, in order to effect an object of their own, brought on to their land, or on to land which for this purpose may be treated as being theirs, a large accumulated mass of water, and stored it up in a reservoir. The consequence of this was damage to the plaintiff, and for that damage, [267] however skilfully and carefully the accumulation was made, the defendants, according to the principles and authorities to which 1 have adverted, were certainly responsible.” The cases cited from Vermont are, to some extent, in apparent conflict with these authorities. They do not seem to distinguish, as these authorities do, between natural and artificial causes of injury. We think the petitioner’s claim is not only sustained by authority, but is founded on justice. He ought to be compensated for such an injury as the petition describes, and the law would be defective if it failed to give him a remedy.' The agreement which was made by the petitioner to sell to the respondents a tract of land on the stream, and the deed made by him in conformity thereto, are not to be construed as a release of damages for any injuries which the respondents might occasion to his other land. The agreement relates merely to the land to be conveyed, and the deed conveys merely the land and a way thereto. Neither of them purports to be a release of damages, . and we think the same rule of construction is to applied to them which was applied to the conveyance in Lyman v. Boston & Worcester Railroad Co. 4 Cush. 288. Case to stand for trial.