A. W. Dodd & Co. v. Tarr

Braley, J. The city of Gloucester, the domicil of the parties, has never established a system of sewerage. But prior to 1874, an open brook, having its rise in swampy land and fed by springs, ran from Prospect Street on the north, which was laid out in 1833 when Gloucester was a town, down the westerly side of Chestnut Street, laid out in 1850 by the selectmen, on the westerly side of which the premises of the defendant Tarr abut. It flowed for many years in an open channel to within a short distance of Main Street on the south where, crossing under the street, it passed over land owned since February 16,1907, by the plaintiff, to the sea. A sidewalk, at some time not shown by the record, was built over the brook for substantially its entire length from Prospect Street to the northerly side of Main Street, and the city, at the corner of Main and Chestnut streets, built a catch basin and connected it with the brook. Andrew W. Dodd, one of the plaintiffs’ predecessors in title, owned and occupied premises on the north side of Prospect Street as a home from 1881 to January 4, 1889, when he conveyed the property to the city. It is referred to in the master’s report as the “ Huntress Home.” Dodd, previous to 1884, laid a pipe drain under Prospect Street and over private land to Chestnut Street where it was connected with the covered drain into which waste and sewage were discharged. The defendant Tarr, whose premises are connected with the drain, acquired title March 15, 1900. The defendant Burn-ham has owned her property since 1897, which abuts on the northerly side of Prospect Street and by intermediate drains has also been connected with the Chestnut Street drain. The estates of Dodd, Tarr, and Burnham are on the record the only estates which have used the drain. The defendants, however, have acquired no rights by prescription and, unless they have been licensed, or have an easement by grant, they are trespassers. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542. May 16, 1884, Dodd and one Charles H. Parsons, the plaintiffs’ predecessors in title and owners of seven ninths of [194] the land and dock, by an indenture under seal with the city licensed, permitted and empowered the municipality to construct and maintain through their land on the easterly side of Pearce Street, a drain which now runs easterly from said' street, with a clause of revocation, “to give said City six months’ notice of their intention to revoke this license and permission.” The city covenanted and agreed to construct within a reasonable time, a catch basin in Pearce Street at the head of the drain in front of the licensors’ land, “ to be so constructed as to prevent gravel, dirt, sand, and other like materials from washing into the dock . . . through said drain, it being understood and agreed, by and between said parties . . . that this license and permission is granted upon the express condition and consideration that said city shall fully perform its covenant and agreement as above set forth.” The city, however, never acted, and it was not until 1888 when, the cost being paid by private subscription to which Dodd contributed, the natural course of the brook or drain which was “then carrying some sewage from the Huntress Home” was so changed and diverted from its former course at the corner of Main and Chestnut streets, as to run underneath Pearce Street which opened from the southerly side of Main Street, and then turned at a right angle easterly and crossed the land in question, discharging into the dock. The course thereafter of the drain below the northerly line of Main Street “was entirely beneath the public streets until it entered the plaintiff’s land.” It was contended by the defendants before the master that the work of diverting the brook was done by Dodd. But, while Dodd was interested and “ had underwritten, as it might perhaps be called, the financing of the work,” it was done under the direction of the chairman of the board of health who solicited and obtained the money from those who lived in the vicinity and, because of odors from the sewage, were interested in the relocation. While the city, under the terms of the indenture, is also permitted “ at all reasonable times, to enter upon said land for purpose of repairing said drain and to repair it,” there is no finding that any entry has been made. The license never has been [195] exercised by the city, and it is unnecessary to decide whether, if the city had done the work and maintained the drain, and no notice of revocation having been given, the defendants could rely on it as a defence. Ruggles v. Lesure, 24 Pick. 187. Giles v. Simonds, 15 Gray, 441. Smith v. Gloucester, 201 Mass. 329. It is manifest on the foregoing review of essential facts found by the master, that the defendants are not licensees. The deed from Dodd to the city in 1889 contains this language: “A right is granted to said City to have and maintain the drain as it now stands and discharges on my land and wharf,” and the master finds that “the drain as it now stands” is the drain built in 1888, and that the “land and wharf” are the propérty of the plaintiff. It is contended by the defendants that they are within its terms. But, even if the grant is broadly phrased with no suggestion of any limitation of time, or restriction as to the volume of sewage, the easement was appurtenant to the estate conveyed. It cannot be enlarged by construction to include the lands of the defendants. Barnes v. Lloyd, 112 Mass. 224. George v. Cox, 114 Mass. 382. Naumkeag Steam Cotton Co. v. American Glue Co. 244 Mass. 506. The defendants finally urge that the plaintiff ought not to be permitted to maintain the suit because of its unreasonable delay and acquiescence in what had been done. But the defendants are not found to have relied on any representations, or inaction with knowledge of the facts even on the part of former owners who are not shown to have been aware of the defendants’ use of the drain, and the plaintiff apparently did not discover it until November, 1916, when it demanded rental, which, if not paid, “your drain is discontinued,” and the bill was filed January 8, 1917. We therefore are unable to discover any evidence of equitable estoppel, or of laches which defeats relief. Sawyer v. Cook, 188 Mass. 163. Attorney General v. Boston & Albany Railroad, 246 Mass. 292, 298, 299. Seretto v. Schell, 247 Mass. 173,177. The decree dismissing the bill is reversed and the case is to stand for further proceedings in the trial court. Ordered accordingly.