#### Edmund Baker *versus*The City of Boston.

It is not only the right but the duty of the city government of Boston, so far as they may be able, to remove every nuisance which may endanger the health of the citizens.

And they have necessarily the power of deciding m wnat manner this shall be done, and their decision is conclusive, unless they transcend the powers conferred on them by the city charter.

Police regulations to direct the use of private property so as to prevent its being pernicious to the citizens at large, are not void although they may in some measure interfere with private rights without providing for compensation.

The property of a private individual may be appropriated to public use in connexion with measures of municipal regulation, and in such case compensation must be provided for, or the appropriation will be unconstitutional and void.

By an indenture between the town of Boston and the Boston Mill Corporation, this corporation granted to the town a certain proportion of a tract of land covered with water, *u*excepting the mill creek and such other canals as may be agreed to be kept open for the passage of boats;” and by a subsequent indenture between the same parties it was agreed, that the town might put a covering over part of the creek (or canal), “ provided only that no interruption or impediment shall be made or permitted below said covering, to boats or rafts passing through or into said canal.” It was *held,*that these provisions did not amount to a license to the abutters to navigate the creek.

The creek however was in fact kept open for the purpose of boat navigation, and it was *held,*that although there was an implied license to every one so to use it, yet that this was not a perpetual license which could be pleaded as a *grant or*a dedication to the public; and that no use of the creek while it was permitted thus to remain open, would give to any individual a prescriptive right.

It was also *held,*that an abutter could not gain any prescriptive right by using the creek, while thus kept open, for the purposes of a drain, because such use was not adverse.

In an action of the case for an injury caused by a public nuisance, it is not a sufficient allegation of special damage, to aver that by reason of the nuisance the tenant of the plaintiff's messuage refuses to pay his accustomed rent, for the *189tenant is liable to pay the rent, so long as he occupies, and can claim no re duetion on account of any unlawful obstruction caused by a third party.

Nor is it sufficient to aver that the tenant threatens to quit in consequence of the nuisance, for the plaintiff cannot recover *quia timet.*

Action *on the case.*In the first count the plaintiff alleges, that he is seised of a messuage, situate in Boston, bounded southerly on Mill creek, on the southerly side of which messuage and contiguous thereto, and through and along the creek, the waters of the sea have been accustomed and of right ought now daily to flow and reflow, without any obstruction caused by the defendánts, yet the defendants, well knowing the premises, but regardless of the rights of the plaintiff, and of the comfort and health of the inmates of his messuage, wrongfully, on August 1, 1828, and on divers other days between that day and the day of the date of the writ, (November 20, 1829,) placed large quantities of stones, plank and dirt in and across the easterly end of the creek, whereby the creek was and still is greatly obstructed, and the waters of the sea almost wholly excluded, and in consequence of such exclusion most noisome and offensive smells have been generated in the immediate vicinity of the plaintiff’s messuage, and the comfort and health of the inmates greatly endangered and diminished, by reason whereof the plaintiff has been and still is greatly prejudiced and injured in his aforesaid estate, and the same messuage is thereby become of little value to him, and one Newcomb, the tenant, has refused to pay his accustomed rent to the plaintiff for the messuage, since the committing of the grievances aforesaid, and threatens and is about to quit the possession of the messuage.

The second count alleges, that along the southerly side of the messuage a navigable creek or arm of the sea has been for more than sixty years last past situate, and the waters of the sea have, until the committing of the grievances, &c. been during that time accustomed to flow and reflow daily without obstruction, and the plaintiff, and those whose estate he has in the messuage, have during that time had and enjoyed the right, and the plaintiff and his tenants now ought to have and enjoy the right, by reason of his owning the messuage, of having boats and other vessels pass and repass in the creek from *190the sea to the messuage, and from the messuage to the sea, for the purpose of transporting all such things as they might desire ; yet the defendants, well knowing, &c. on September 1 1828, &c. (averring the obstruction as in the first count) prevented the passage of boats, &c.; by means whereof the plaintiff and his tenants could not, during the time last aforesaid, nor yet can, enjoy the benefit of the creek as a navigable highway, as they of right ought to have done, in consequence whereof the plaintiff has been and still is greatly prejudiced, &c., (concluding as in the former count, with an averment of the like special damage).

The third count' (which was like the first as to the statement of title, &c., and as to the rights in the creek) alleges, that along the southerly side of the messuage a stream of water has for- more than sixty years last past, and until the committing of the grievances, &c., freely run and flowed, to the great benefit and advantage of the plaintiff and those whose estate, &c., yet the defendants, regardless, &c.

The fourth count alleges that the plaintiff is now, and for thirty years last past has been seised, &c., and during all that time, and for more than fifty years before, &c. the waters of Mill creek contiguous to, &c. have been accustomed to flow and have flowed daily, until the committing of the grievances, &c. without interruption or obstruction caused by the defend ants, to the great benefit and convenience of the plaintiff, &c., yet the defendants, regardless, &c.

The cause was tried upon the general issue, before *Putnam*J.

It appeared on the trial, that the plaintiff was the owner of the messuage described in the declaration. The land over which Mill creek passed, was originally granted by the town of Boston, in 1643, to Henry Simons and others, for the purpose of establishing thereon one or more corn mills, which were accordingly erected, and the creek was made for a sluice way for the mills.

About the year 1804, the owners of the mills stopped the mills and sluice way. In that year they conveyed their mills and Mill creek, with the appurtenances, to the Boston Mill Corporation, and that corporation, by deed of September 22, *1911828, conveyed the Mill creek and appurtenances to the city of Boston.

In 1792 the town of Boston deemed it necessary that a bridge, called Mill bridge, which crosses the creek in Hanover street, near the plaintiff’s messuage, should be repaired or made anew, and the town agreed with the mill owners to re make the same, at the joint expense of the parties, without prejudice to either as to the question of liability to keep it in repair for the future. In pursuance of this arrangement a permanent bridge of stone was erected *at that time*; the effect of which was to .narrow the Mill creek in that part, and to impede the passage of the water, and to increase the then existing obstructions to the free use of the creek for the purposes of navigation. No evidence was offered by the plaintiff, that any objection was ever made by himself or any other person to the erection of the bridge.

. About the year 1798 the proprietors of the mills shut up the floodgates, so called, of their mills, near the westerly end of Mill creek, and thus prevented the flowing of the water through the creek in like manner as it had before flowed while the mills were kept in operation. The inhabitants of Boston thereupon directed their selectmen to inquire into the right of the proprietors so to shut their floodgates, and further directed them to take suitable measures for having the same opened again, with a view to the health of the town. The floodgates were, however, still kept shut, and no prosecution was instituted by the town against the proprietors for not opening them again.

Between 1798 and 1828 complaints were made from time to time to the town and city ofiicers, that the creek was be come so foul by reason of the discharge of offensive matter into it from the drains and privies belonging to the adjoining estates, and from common sewers built under the direction of the municipal officers, and of putrid vegetable and animal remains thrown into it, that it was a nuisance and injurious to the health of the inhabitants of the town. Different plans were suggested by the officers of the city, for remedying the evil complained of, but none was deemed so eligible as the filling up of the creek ; and after due consideration it was at length *192decided by them to begin the execution of that plan, by filling UP southeasterly end, extending from Marginal Street to Ann Street, leaving however a common sewer four feet high and four feet and a half wide, running through the middle of the creek. This part of the contemplated work was begun in November 1828, and was finished in the following spring.

In July 1829 it was determined by the mayor and aldermen of the city, that for the health of the inhabitants it was necessary to proceed in the execution of the plan of filling up the creek, and another portion of it was undertaken, to wit, from \nn Street to Hanover Street; and while this part of the work was proceeding the plaintiff commenced this action.

It was testified by thirteen witnesses, that for several years before the city began to fill up the creek, it had, from the causes before mentioned, become extremely offensive at times, in some parts of it, and was described by some of the witnesses as a nuisance. Three witnesses on the part of the plaintiff testified that it had not become very offensive until the filling up was begun. It appeared, however, that it was more offensive during the time of filling up, than before that operation was begun, and that the tenants of the plaintiff never complained to him of the offensiveness of the creek, until after the city had begun to fill up the easterly end of it.

For more than twenty years past the drain and the privy belonging to the plaintiff’s messuage had emptied themselves into the creek.

It appeared that the creek had been used till within a few years past, for navigation by canal boats and other boats ; but this was generally for the purpose of transporting goods through the creek from the southeasterly side of Boston to Charles River or *vice versa,*and not for landing goods on the borders ; and it did not appear that the plaintiff or his tenants or servants had ever in any one instance used the creek for the purpose of navigation.

On July 24, 1807, by an indenture of that date, made between the Boston Mill Corporation and the town of Boston, that corporation, among other things, released to the town all its right in a certain proportion of the tract of land called the Mill Pond, which was a part of the estate anciently granted to *193Henry Simons, ct excepting the Mill creek and such other canals as may be agreed to be kept open for the passage of boats.” By another indenture between the same parties, dated July 20, 1808, it was agreed, that Mill creek or canal should be of a certain width, and that the town might cover over a part of it with timber and planks, &c., “ provided only that no interruption or impediment shall be made or permitted below said covering to boats or rafts passing through or into said canal.”

On this evidence it was contended by the defendants, that the Mill creek was private property until 1828, when it was conveyed to the city of Boston by the release first mentioned ; that it was an artificial canal, and not a natural arm of the sea, accustomed to flow and reflow, as set forth in the declaration, and was not a navigable water within the intendment of law, and therefore that the plaintiff had not acquired any rights of navigation as upon a natural arm of the sea. But they contended further, that if it were a navigable water, it was then in law a public highway, and the plaintiff could acquire only the right of using it for the purposes of navigation and fishing, but not for the use of the drain and privy belonging to his messuage, as claimed by him. They further contended that they were justified in filling up the creek, because the health of the citizens required the removal of the nuisance, and the only effectual mode of removing it was to fill up the creek.

The plaintiff contended, that whether the creek was an artificial or a natural inlet, the sea had flowed and reflowed by his messuage from time immemorial, and that as an abutter he had acquired the rights claimed by him, by the user proved in the case.

The juiy were instructed, among other things, that the indentures of 1807 and 1808, containing certain provisions respecting the use of the creek for the passage of boats, were evidence of rights acquired by abutters on the creek, and that the jury might upon that evidence find that the plaintiff had the right of navigating, as claimed by him ; that the flowing and reflowing of the tide waters in the creek were such as to make it a navigable water ; that it was true, as the defendants contended, that the plaintiff could not prescribe for a nuisance *194in a public highway, but that there was another rule oi law, that if a special injury was done to an individual in a highway, the party injured was entitled to redress from those whose duty it was to keep the highways in order. The jury were further instructed, that if the plaintiff had no rights in the creek, regarded as navigable water, yet if the defendants by their act had caused an injury to the plaintiff, in the manner alleged in the third and fourth counts, and if *the*defendants were chargeable with unnecessary delay, or had not used reasonable despatch, in filling up the creek, the plaintiff was entitled to recover.

The jury found a verdict for the plaintiff for $ 125 damages. In reply to interrogatories, they stated as their opinion, that the defendants had been guilty of unnecessary delay; that the creek had not become a nuisance until after the defendants had begun to fill up the south end ; that the plaintiff had the right of using the creek as a vault for the privy attached to his messuage ; and that the plaintiff and others had the right of using the creek for the purpose of navigation ; but the jury further stated, that they did not give any damages to the plaintiff on account of the obstruction to navigation caused by the defendants.

The defendants moved for a new trial, 1. because the jury were directed, that the indentures of 1807 and 1808, between the defendants and the Boston Mill Corporation, relating to the creek, were evidence of the right of navigation acquired in the creek by the plaintiff and other abutters thereon, and that the jury might, upon that evidence, find that the plaintiff had the right of navigating, as claimed by him.

2. Because the jury were instructed, that if the creek were not a natural creek or inlet of the sea, but an artificial channel or passage which was made for the use of the mills erected thereon, and into which the tide water was permitted to come, yet the flowing and reflowing of the tide waters in the creek were such as to make the same a navigable water, in which the public would have the like rights as in the navigable waters of natural creeks or inlets of the sea.

3. Because the verdict was against law and against evidence.

*195Nov, 2d

*J. Pickering,*(City Solicitor,) for the defendants.

The indentures were *res inter alios actce,*and not admissible as evidence of any right acquired by the plaintiff. But if they were competent evidence, they do not sustain the inference which the plaintiff would draw from them. The creek was private property, and the indentures, taking the whole together, show that it was to be' used, as a matter of right, only by the parties to the indentures. Whether it should be kept open or not, was a question solely between those parties.

It should have been left to the jury to find the fact, whether the creek was a natural or an artificial inlet of the sea. If it was a navigable natural inlet, the plaintiff could not acquire a prescriptive right to use it as a receptacle for filth; which would be a nuisance, inasmuch as it would tend to fill up the creek. If it was artificial, the fact of its being navigable would not make it *publici juris.*Hale *de Jure J\£ar. c.*3. The use made of it by the plaintiff was permissive and not adverse, and therefore could confer no right. *Gloucester, fyc.*v. *Beach, 2*Pick. 60 ; *Cooper*v. *Barber,*3 Taunt. 99.

The action cannot be maintained against the defendants. They are a public body having legislative power over certain subjects. This was a matter of police regulation, and the questions of the expediency of filling up the creek, and of the mode and time of doing it, were exclusively within the legislative discretion of the city government. If the defendants have not taken the plaintiff’s property, and have not been guilty of arbitrary and oppressive conduct, the alleged grievance is *damnum absque injuria. Shaw*v. *Cummiskey,*7 Pick. 76; *Dore*v. *Gray, 2*T. R. 358; *Governor, &c.*v. *Meredith,*4 T. R. 794; *Boulton*v. *Crowther, 2*Barn. & Cressw. 703; *Sutton*v. *Clarke,*6 Taunt. 34; *The King*v. *Bristol Dock Co.,*6 Barn. & Cressw. 181; *2*Kent’s Com. 276; *Presbyterian Church*v. *New York,*5 Cowen, 539; *Stuyvesant v. New York,*7 Cowen, 596; *Lansing*v. *Smith,*3 Cowen, 146; *Lebanon*v. *Olcott,*1 N. Hamp. R. 339; *Callender*v. *Marsh,*1 Pick. 418; *2*Dane’s Abr. 713; *Gozler*v. *Georgetown,*6 Wheat. 593.

*Metcalf,*for the plaintiff.

No damages have been given on the two first counts, and the first and second grounds taken in *196the motion for a new trial are therefore immaterial. The in* dentures, however, were admissible in evidence. The defendants were a party to them, and the provision that “ no interruption or impediment shall be made or permitted, &c. to boats Or rafts passing through or into said canal,” is a recognition of the right of the public to navigate the creek.

The creek has not been found to be an artificial canal, and whether it was a natural or an artificial inlet of the sea seems to be immaterial, for the water has flowed and reflowed in it, and boats and rafts of all persons have floated in it from time immemorial. *Miles*v. Rose, 5 Taunt. 705; *Commonwealth.*v. *Charlestown,*1 Pick. 180.

The • defendants are liable for an injury of this chaiactei done to an individual; and an action at law is his only remedy. American Jurist, No. 4, *p.*203; *Chichester*v. *Lethbridge,*Willes, 71; *Jeveson*v. *Moor,*12 Mod. 262.

The two last counts are sufficient for the plaintiff’s purpose, and, if necessary, the Court can enter up judgment for him on those alone.

Supposing the health of the citizens to have been the sole object of the defendants m filling up the creek, still the jury have found that they were guilty of unreasonable delay, and that the plaintiff suffered in consequence ; and he is therefore entitled to recover.

Wilde J.

afterwards drew up the opinion of the Court. This is an action of the case for obstructing and filling up a certain creek or watercourse adjoining a messuage and lot of land belonging to the plaintiff, but which at the time of the injury complained of was in the occupation of a tenant for a term of years. The declaration alleges, that the creek was a navigable creek, or arm of the sea, in which the tide daily ebbed and flowed ; and that the plaintiff, and those whose estate he has had, for more than sixty years enjoyed the right, as appurtenant to his messuage, to pass and repass in boats and other vessels, in the creek, to and from the messuage to the sea, until he was obstructed in the enjoyment of that right and.privilege by the defendants. The declaration also alleges, that by filling up the creek and stopping the flow and reflow of the waters, noisome and offensive smells had been generated, *197and that by reason thereof his tenant had refused to pay the accustomed rent for the messuage, and threatened to quit the same in consequence of the premises. And furthermore, that the plaintiff had been generally deprived of the use, benefit and advantage of the waters flowing and reflowing through the creek as they were accustomed to do before the obstruction complained of.

In the defence it was proved, that for a long time previous to the acts complained of, the creek had become foul by reason of the discharge of offensive matter into it from the drains belonging to the adjoining estates, and from common sewers built under the direction of the municipal authorities, and by putrid vegetable and animal remains thrown into it, so that it was a nuisance and injurious to the health of the inhabitants , that complaints to this effect had been from time to time made to the town and city authorities ; that different plans were suggested for remedying the evils complained of, but that none was deemed so eligible as the filling up of the creek ; and that at length, after due consideration, it was decided by the city authorities to begin the execution of that plan, which was accordingly done under their direction ; that the filling up of the southerly end from Marginal Street to Ann Street was completed in the spring of 1829 ; and that in July of the same year it was determined by the mayor and aldermen, that it was necessary for the health of the inhabitants, to proceed in the execution of the plan ; and that in pursuance of that determination the filling up of another portion of the creek, viz. from Ann Street to Hanover Street, was undertaken, and that while this part of the work was proceeding the present action was commenced.

Upon these facts, which were abundantly proved at the trial, we are of opinion that a full defence has been made out, and that there is no legal ground on which the verdict can be sustained.

It has not been denied, nor can it be, that the mayor and aldermen are clothed with legislative powers and prerogatives to a certain extent, and that they are fully empowered to adopt measures of police, for the purpose of preserving the health, and promoting" the comfort, com enience and general *198welfare of the inhabitants within the city. Among these powers no one is more important than that for the preservation of the public health. It is not only the right but the imperative duty of the city government, to watch over the health of the citizens, and to remove every nuisance, so far as they may be able, which may endanger it. And they have necessarily the power of deciding in what manner this shall be done ; and their decision is conclusive, unless they transcend the powers conferred by the city charter, or violate the constitution.

It is clear then that the city government had the right to remove the nuisance complained of by filling up the creek, unless they thereby unlawfully interfered with private property *;*and that they did not so interfere, we think is very manifest. The measure was a mere health law or regulation, and every citizen holds his property subject to such regulations. Police regulations to direct the use of private property so as to prevent its proving pernicious to the citizens at large, are not void, although they may in some measure interfere with private rights without providing for compensation. This principle was settled in the case of *Vanderbilt*v. Adams, 7 Cowen, 349, and in *Stuyvesant*v. *The*Mayor, *&c. of New*York, 7 Cowen, 588. And the counsel for the failing party in the latter case, admitted that the principle was too clear to be questioned. “ The contrary doctrine,” says the court, in the same case, “ would strike at the root of all police regulations.” The order of the mayor and aldermen stands on the same footing as quarantine and fire regulations, and if by such regulations an individual receives some damage, it is considered as *damnum absque injuria.*The law presumes he is compensated by sharing in the advantages arising from such beneficial regulations. *Dore*v. *Gray,*2 T. R. 358; *Governor, &c.*v. *Meredith, 4*T. R. 794.1

But it is true, undoubtedly, that the property of a private individual may be appropriated to public use, in connexion with measures of municipal regulations; and in such case compensation must be provided for, or the appropriation will be unconstitutional and void.

*199But it does not appear by the evidence reported, that any property of the plaintiff has been appropriated to public use, or taken by the city authorities, within the meaning of the constit.utional prohibition. It does not appear that the plaintiff has acquired any right to boat navigation in the creek. It does not appear that the creek was. ever an arm of the sea ; and if that did appear, it does not appear that in its natural state, it was navigable so far up as the plaintiff’s messuage. And furthermore, it does not appear that the plaintiff has acquired any right to navigate the creek, by user, or under the indenture of 1807 between the town of Boston and the proprietors of the Boston Mill Corporation. The report states, that it did not appear that the plaintiff, or his tenants, or his servants, had ever in any one instance used the creek for that purpose. And certainly no such right, was granted to him by the indenture. This indenture provided for filling up the mill pond and ascertaining the proportions of property to be héld by the town and the proprietors respectively ; and the Mill creek, and such other canals as might be agreed to be kept open for the passage of boats, were excepted from the operation of the general provisions of the indenture. This exception however does not amount even to a license to the plaintiff and the other abutters, to navigate the creek and the canals. But as the creek and canals were in fact kept open for the purpose of boat navigation, there was an implied license to every one so to use them, but this was not a perpetual license which could be pleaded as a grant or a dedication to the public ; and no use of the creek and canals while they were permitted thus to remain open, however long continued, would give to any individual a prescriptive right. The plaintiff therefore gained no right by using the creek for the purposes of a drain, &c. ; the use was not adverse. But besides, there does not appear to be any proof thát the plaintiff has been obstructed in the use of the creek for this purpose. In the part filled up and completed from Marginal Street to Ann Street, a large common sewer was left for the purpose of carrying off the contents dis charged from the drains of the adjoining buildings. And no doubt the common sewer will be continued as far as the creek may be filled up.

*200Only one further question remains. The plaintiff complains ^at the creek was not filled up with reasonable diligence and despatch, and that by the negligence of the defendants’ agents the creek had become very offensive, so as to be a great nuisance ; and this claim is supported. by the jury, and probably this is the only ground on which damages were awarded.

As the declaration is framed, it is quite clear that the verdict cannot be maintained on this ground. The nuisance caused by the defendants, if any, was a public nuisance, and an action in the name of an individual cannot be supported. unless he can prove that he had received some special damage. And as this special damage is the gist of the action, it must be specially set forth in the declaration.

This defect may be hereafter cured by an amendment, but the plaintiff’s counsel will do well to consider whether any amendment can avail them, as by the report of the cáse it does not appear that the plaintiff has suffered any special injury. It is averred that Newcomb, the tenant, has refused to pay his accustomed rent, but he is liable to pay, so long as he continues to occupy, and he can claim no reduction by reason of any unlawful obstruction caused by a third" party. It is also averred that he threatens to quit, but whether he will quit does not appear. He had not quitted when the action was brought, and the plaintiff cannot recover *quia timet.*

JV*eto *trial granted.*

1

 See *Austin*v. *Murray,*16 Pick. 126.