Titus v. City of Boston

Holmes, J. The power given by St. 1885, c. 249, § 1, to the board of aldermen, to “ take in fee for the city of Boston any land that they may deem necessary for ” “ the purposes of building and maintaining the system of sewers of said city, and discharging sewage therefrom,” is a power to take the title in fee simple absolute to the land. Page v. O'Toole, 144 Mass. 303. Dingley v. Boston, 100 Mass. 544, 554. It follows that the plaintiff cannot maintain her bill on the ground of her supposed possibility of reverter in the lands taken by the city for a sewer. See further Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544, 547. The plaintiff claims relief on the further ground that her remaining land will be seriously injured by the proposed use of the city’s sewer. It is true that, under the contract between the city and the Commonwealth, more sewage naturally will be discharged than would be if the city should use its sewer for its own sewage alone. But while the contract is authorized by St. 1889, c. 439, § 4, it is assumed by the plaintiff that no provision is made in that statute for compensation to her for damage which her remaining land may suffer from the increase in the discharge. We make the same assumption, without deciding the point or expressing an opinion upon it. It might be possible to read the words of § 4, that the Commonwealth “ shall pay . . . all damages that shall be sustained by any person or corporation by reason of such taking or entering as aforesaid,” as referring to any taking or entering authorized by the section, and also to say that the statute did not require a description to be filed of the plaintiff’s remaining land affected by the entering. Taft v. Commonwealth, 158 Mass. 526, 547. But granting so much to the plaintiff, we still are of opinion that the bill shows no ground for relief. The act of 1885, when it authorized land to be taken for a system of sewers in the language quoted at the beginning of this decision, authorized the building and use of 'the sewers. It is true that the only [212] damages provided for are those “ sustained by any person in property by the taking of any lands as aforesaid,” and that this does not include damage to adjoining lands by the use of the sewers, except so far as that caused by increased proximity may be allowed in estimating the damages for taking land, on the principle of Walker v. Old Colony & Newport Railway, 103 Mass. 10, and Taft v. Commonwealth, 158 Mass. 526, 548, 549. But within bounds a statute may authorize what but for it would be a nuisance, and it does not appear that this statute goes beyond the bounds. Taft v. Commonwealth, ubi supra. Sawyer v. Davis, 136 Mass. 239. The only question is what kind of a sewer and what extent of use are authorized by the act of 1885. It was as plain then as now that the city might grow, and that it might take in new territory. We cannot think that the extent of the use permitted was intended to vary with the accident of municipal limits. The sensible view seems to us to be that the city is granted the right to make and use any drain which is natural to the configuration of the ground. It does not appear that the intended use of the sewer is beyond the scope of the act of 1885, so construed. We decide nothing as to what the plaintiff’s rights would be in case it should turn out hereafter that the use of the sewer destroys the whole value of the plaintiff’s remaining land. Bill dismissed.