BRAYTON, C.J.[fn*] [fn*] DURFEE, J., being interested, did not sit in the trial of this case.
The plaintiff alleges in substance that he has been and is possessed of a wharf estate known as the Dorrance street wharf, and of a dock appurtenant thereto, and of other rights also appurtenant which are not specified. The only appurtenance which he sets out as the basis of any claim, is the dock.
He alleges that by the acts of the defendant, (the city,) he has been unable to use his said wharf and dock to so good advantage as he might otherwise have done, and has lost large rents, profits, wharfage, and income which he might have received, and has been and still is greatly annoyed, disturbed, and incommoded, in the occupation of his said dock and wharf.
The acts of the defendants, by which this injury has been caused, he alleges to be, that they have during all the time of his possession so used and maintained, and wrongfully, a certain drain or sewer, called the "Dorrance street sewer," and caused the sewer wrongfully to discharge into said dock dirt, sediment, filth, and other matter in large quantities, that the dock has been greatly filled up and obstructed so that he could not use said wharf and dock as before; that from the matter discharged into said dock have arisen noisome and unwholesome stenches and smells, by which he has been greatly annoyed and incommoded in his occupation of said wharf and dock.
What is now denominated Dorrance street sewer in the plaintiff's declaration, was originally constructed to carry off the water accumulating in Broad street, at the head of what was then called Dorrance street, to the nuisance of that neighborhood and of the streets. It was made upon the complaint of many people. Upon the report of the standing committee on highways, to whom the complaint was referred, the city council directed the surveyor of highways to cause a suitable culvert to be laid from Broad street through the middle of Dorrance street, to the river. In obedience to this resolution and direction, the so-called sewer was made and has since been maintained.
Upon the trial it was claimed, in defence, that the city was empowered to build and construct sewers within the city, and if injury resulted to individuals in consequence of such construction, the city was not responsible.
Upon this point the judge instructed the jury, that the General Assembly had not expressly granted to the city the right to construct sewers, and that the city had not such power to be implied from, or as incident to, any of the powers granted to the city.
This direction is claimed to be erroneous, and is one of the alleged grounds for a new trial.
We have not been referred to any statute giving to the city any powers, in which the term sewer is used. The counsel, who argued the case, were not agreed as to the legal definition of the word sewer, or what constituted a sewer, and we have not been referred to any case or text book for such definition.
It is defined to be "A drain or passage to carry off water under ground," and "A subterranean canal, particularly in cities."
The argument of the plaintiff's counsel against the existence of the power, is based upon what they conceive to be the proper definition of a sewer, what constitutes it, namely, that it is a passage or canal underground by which filthy, corrupt, and offensive matter may run off or may be carried off by water; and so they concede the power to construct drains to carry off water beneath the surface, while they deny the right to make one which is to carry away matter which is noisome and offensive. They give no authority for such a definition, either in law or philology.
There can be no doubt that there is an implied power in the city, arising from the duties imposed upon it in relation to the streets and highways within its limits, and as incident to the proper discharge of those duties, to construct drains upon the surface of the streets to carry off the water falling upon them, or coming upon them in whatever way, either to prevent their accumulation at points where it would be injurious, or to prevent the waste or washing away of the streets.
The same duties would oftentimes require, and still more frequently render it expedient and proper, to carry it off under ground.
The water, in its passage off, whether upon the surface or beneath it, must necessarily carry along with it the matter thrown or deposited in gutters, and coming upon the surface from travel, — the natural accumulation of a city, all the matter not pure, but of every degree of impurity to the last degree. If noisome and offensive, it would impose upon the city a high duty, to cause it to pass off without being an offence in its passage.
The streets are dedicated to all such necessary uses. It is not, however, to be inferred from this duty or this necessity, that the city may not subject itself to liability, if, in making such drains or sewers for the purpose of preventing a nuisance, it creates a public nuisance in another place, and so merely transfers it from one locality to another. For such a drain, creating a public nuisance, the city of Boston was indicted and convicted.
If, then, the city, by means of this drain, either from its improper construction or improper use, have accumulated at this dock, corrupt matter producing noisome and unwholesome stenches, creating there a public nuisance, — if they have, by carting down into the tide water such an accumulation of mud and earth as to interrupt the passage of vessels, there caused a nuisance to navigation, they would be indictable.
An action, however, could not be maintained in favor of an individual, simply because the city might be indicted. He must suffer some peculiar and special damage above that arising to the public generally, to entitle him to sue. If he can prove such special damage, he is entitled to sue for it.
The right of action as to the injury to a wharf is recognized in Richardson v. City of Boston, 19 How. 263, holding that the plaintiff was entitled to sue if he could prove that the drain in that case had lessened the depth of water at the head of the wharf, where the city did not own the soil.
It was made a point in the argument, that a portion of the land here called Dorrance street was private property, and not in fact a public street, and so the city had no right to make a sewer through it, and that the city might be liable to the plaintiff, when it would not be were the title in the city. We do not think this can vary the plaintiff's right, he not being the owner. No one but the owner of the land can sue for any injury caused by building the drain upon it.
The court was requested to charge the jury, that the plat and agreement of the Dorrance Street Association, placed on record by them in 1829, in evidence on the trial, were in legal effect a dedication of the land designated on the plat as Dorrance street to the purposes of a highway; and the refusal of the court so to charge is claimed to be an error.
The judge held, and so charged, that the agreement and plat were a dedication so far as the lines were actually drawn upon the plat, and no further.
When we read the agreement, which refers to the plat, we find that these proprietors laid out what is now called Dorrance street wharf into thirteen lots, leaving an open space on every side, all of which they declared should be kept open for the benefit of the owners of the thirteen lots, and should be owned by the owners of the lots as tenants in common; that the open space on the south-westerly side of the lots was declared to be bounded by Dorrance street and Dorrance street dock, and to extend from the river to the street leading from Dorrance street to Central street, recognizing thus the line of Dorrance street as extending to the dock.
The street on the northwest end of the lots was to be forty feet in width, and to be kept open from Dorrance street to Central street. By the fifth clause they declare that all the streets, lands, docks, and wharves on the southwesterly side of Dorrance street aforesaid and Dorrance street dock, so called, and on the northerly side of Ship street and Ship street dock, so called, as now marked on the plat, and not embraced in any lots marked out on the plat, shall forever remain open and unencumbered for passing and repassing. They provide that, on the southerly side of Dorrance street dock and street, these open lands, whether streets or wharves, should belong, not to the owners of the lots in common, but each owner should hold in severalty, that which lay in front of his lot, and as part of it.
Here, again, they recognized Dorrance street as extending to the so-called Dorrance street dock upon a line common to both, and they leave both the dock, and the street unappropriated, though they provide that the owners, for the use of the land in front of their lots, may collect wharfage.
The residue of the lands of the association are laid down upon the plat as bounding upon Dorrance street, as the line is actually drawn upon the plat, and are declared to be bounded upon it; but the agreement neither gives to the owners of the lots nor recognizes any right in them to, any portion of the space designated as Dorrance street.
The dedication, gift, or offer by the association to the public, for public use, is not equivocal; and it should have been left to the jury to inquire whether the offer had been accepted.
The court were requested, also, to charge the jury, that the documentary evidence put in by the plaintiff did not show in him any title to the strip of land in part flooded by tide-water, designated on the plat referred to as Dorrance street and Dorrance street dock; but the court did instruct them that the plaintiff had such an interest in it as authorized this suit. Upon an examination of the papers, in their bearing upon the question of dedication, we have found that the strip of land, whether flowed or not, was left by the articles of agreement of the association entirely unappropriated, undisposed of, not granted; nor is there any provision as to the other streets and the other docks, that the land should be held or occupied by the owners of any lot or lots into which these lands of the association were divided, or that it was intended as an appurtenance to any land, if it could be made appurtenant. There is no attempt apparent to vest in any body any title to this strip of land.
The lands as to which any agreement is made are simply bounded upon it, describing it as street and as dock, the same lines which bound the street being extended into the dock to the harbor line as the limit of the unappropriated dock; and we think the defendant was entitled to the instruction asked for.
So far as the plaintiff alleges any substantial injury to the dock, and claims damages therefor, this action would not be maintainable. He alleges that he has been and is possessed of the dock, and his injury is to that possession. It is merely a portion of the sea, (so much as flows between the wharves there,) which is a mere highway for vessels, and as to which the plaintiff has and can have no other right, than that of passage over and upon it. No length of time could give him possession more than the association under which he claims could give it, and they very properly did not attempt to give any.
The agreement of the association provided for a division, and the deeds convey simply the land, real estate not flowed by the sea, conveying with it whatever may be properly appurtenant.
The agreement speaks of right of wharfage as belonging to some of the land, but it was not necessary. He who had the lawful right to the wharf, if he used it as such, had all the right incident to such ownership, including the right to wharfage, and that whether it was mentioned or not as appurtenant.
The injury, then, for which this action is to be maintained, is that alleged to be done to the Dorrance street wharf, in the plaintiff's possession, by filling up the dock there so as to prevent access to it, and thereby preventing the profitable use, and disturbing him in the occupation by the stenches and smell created there.
It is made an exception to the ruling of the judge, and to his charge to the jury, that he refused to direct them that the plaintiff could not legally maintain an action against the city for maintaining the so called Dorrance street sewer, though he might maintain an action against the surveyor of highways, or other officer of the corporation, for maintaining the same structure. If the maintenance or use of the sewer is actionable at all, so that the plaintiff could maintain an action against any one, there is no principle or rule which should shield the city from liability, if by the action of the authorities of the city it has directed the particular structure to be made, or has directed or controlled its use.
In making themselves principals, they cannot leave the liability to rest solely upon the servant whose acts they command and direct. In Thayer v. Boston, 19 Pick. 511, the court say a corporation is liable for an act which would give an action against an individual, if done by the authority of the corporation or of a branch of the government authorized to act for it upon the subject to which it relates, or if the act be ratified by the corporation or its officers. They are liable for negligence to the same extent as individuals, and for want of skill or care in their agents in construction of work or in repairing public sewers. Lloyd v. City of New York, 7 Seld. 369. These cases, and the case of Richardson v. City of Boston, 19 How. 263, and the other cases on plaintiff's brief, make it quite clear that a case is stated which is actionable against the city. The court had no right to say whether it was or was not proved.
But it was contended in argument that the action, to be sustained, should be trespass, and not, as here, an action upon the case; and this was argued upon the notion that the injury alleged was direct, and not consequential, and that the plaintiff was claiming in fee.
There is no allegation of title in fee. The plaintiff counts upon possession; and though he says he is interested in the property, he states no particular interest or estate. The injury alleged to the wharf is not direct, but consequential. No act is done upon the wharf. The act is done upon other land not owned or possessed by the plaintiff, but reaching in its consequences the plaintiff's wharf; as by a spout upon one's own building water is cast upon that of his neighbor. In all such cases the action is not trespass, but case.
Another exception to the charge to the jury is, that they were not instructed, as requested, that the owners of the land at the head of the dock had the right to fill out the land to the harbor line, without regard to the wishes or interests of the owners of adjacent lots; but that the judge charged that they had the right, unless restricted by their own agreement.
This charge in its terms is entirely correct, but having been requested to direct the jury that this right was without condition, the charge implies that the owners by their agreement precluded themselves from filling out. There is not, in the documentary evidence in the case, any such express agreement that they would not fill out against the land into this dock.
But it is not material whether the right existed conditionally or unconditionally. The riparian owner has not exercised his right, and the defendants do not pretend that they were acting under this right by permission of such owner, or as his servant, in filling in this dock and obstructing the navigation there. It might be a defence in the mouth of the riparian owner, but not in another.
There was still another exception, namely, that the judge instructed the jury that under the act of the General Assembly fixing the harbor line, and permitting the riparian owner to extend his land to that line, such owner, having filled out, had a right to the exclusive use of the land for his own vessels, and refused to charge that such owner could not so improve and occupy it as to prevent other people and the public from landing thereon from vessels.
This point was not argued, nor was any authority referred to.
The point is not material to the case. It was matter of complaint by the plaintiff that it was with difficulty that he could reach the wharf with his own vessels and merchandise, from the obstructions, and that the difficulty of approaching prevented other vessels from coming there, from which he would have received wharfage and income.
New trial granted.