The Worcester spy. [volume] (Worcester, Mass.) 1898-1904, 1899-08-27
Question of Overflow
of Sewage in South
Worcester.
CITY is NOT LIABLE
For Damage of Character
Described by Pc
titioners.

City Solicitor Rugg has rendered TIL
following opinion in answer to the re
quest of the common council for al
opinion in the matter of the claim TO
damages for overflow of sewage il
South Worcester:
To the common council of the city O
Worcester:
You have requested the opinion of tn,
city solicitor relative to the legality o
the claims Of the different petitioner
for damages resulting from the over
flow of the sewer at this particular tim,
when the damages occurred, it being
understood that such damages wer,
the result of negligence on the part o.
the city Of Worcester"
The petitions referred to are those
of Patrick and Mary Foley, Patrick
Flnneran, and many others, requesting
"a payment of damages occasioned Ii
them by reason of an overflow occur
ring in August, 1898, at time of al
extraordinarily heavy shower.
The latter part of your request, which
states that it is understood that such
3 damages were the result of negligence
on the part of the city of Worcester, ;
Is ambiguous and susceptible of tive
constructions. Negligence, using the
word in its popular sense, as applied tc
the sewers of any municipality, may
have either one of two meanings
First, that the system or plan on which
The work of construction and mainten-
'ance is done is imperfect and insult
Gent, by reason of ignorance, careless
ness or misjudgment of those who de-
vised the scheme. Or, second, that, al
though the general plan be sufficient,
yet the construction or maintenance of
the particular structures has been care
less.
1 will address myself to the inquiry,
having in mind both these interpreta-
lions. / desire, however, to state by
way of preface, that the assumption
stated in your order is contrary to all
facts known to the city officials. I am
INFORMED that every effort known to
science has been made to prevent any
overflow, yet during the construction
or the separation system these over
flows show that they cannot be entirely
prevented, although it is expected that
lat the completion of that system there
VIII be no repetition.
The situation of the city of Worces-
Ter with reference to it's sewage is a Pc
culiarly unfortunate one. BY act of
the legislature passed many years ago,
eAtS lily Was TO convert MIL
brook and certain other natural streams
in the city into main sewer carriers. 1t
acted upon the authority thus conferred
ana constructed an extensive and ex-
pens1Ve system of sanitary sewage, on
the theory that it was quite justified
by the act of the legislature, and that
IT was thereby authorized to turn the
entire discharge from the sewage sys-
Tem into the Blackstone river. In
~ Tf1aAo \, L,
been 5udicially determined to be a nui-
sance existed in the river, although
whether it was due directly or chiefly
90 the act of the city has never been
directly determined. At all events, by
reason of agitation of citizens and
WINS upon the Blackstone river below
lester, legislation was enacted
elled the city to purify its
se"age t requiring it to undo,
or a. s vn =Tv materially mod
1fy the E9Fa L1 uH5srtaken under
authority OF tE.2 nr pi9rs rtes, Civ
ing to towns upoa the 5arhst ne river
authority to enforce ice seduirement
for publication by pf1e edings in
equity. The city of Worcester is thus,
With reference to its sewage constant
~ bound to see to 1t that its sewage is
purified, or suffer the consequences
which may be entailed upon it by pro-
ceedings in court.
The facts which appeared at the
hearings before the committee on
claims, and which l assume are true
Tor the purpose of this discussion, very
briefly stated are that in August, 1898
there was a very sudden and exceed
lngiy heavy rainstorm. Almost imme-
d1ately the water rose in the Mill brook
main sewer beyond its capacity, and
overlooked through manholes and
catch basins, flooding the streets and
the adjoining land in the vicinity of
Cambridge street, and perhaps some
other streets doing in this way consid-
cradle damage TO garden crops AT
the same time there was an overflow
from the sewers through the plumbing
of a number of houses, thus causing
some damage. All this probably result
ed from the fact that the quantity of
water thus suddenly poured into the
main sewer was too great for its ca
pacity. No satisfactory evidence was
submitted by any petitioner directly
bearing upon this point, but it was sug-
gested that the damage was caused BY
the plan of the device to connect the
main sewer with that leading to the
publication works. This device how
ever, is an essential part of the scheme
for the publication works, and its re-
moval or failure to perform its func-
tlons would probably discharge the
sewage directly into the Blackstone
river without publication.
The general principles governing liza.
bilities of cities in reference to sewers
have been frequently reiterated, ant
are widely acquiesced in. A concise
statement Of them was made by Jus
tice Gray, in the recent case OF
Johnston VS.. District of Columbia, 118
u. s., 10, as follows:
The duties of municipal authorities
in adopting general plan of drainage
and determining when and where sew
ers shall be built of what size and al
what level, are of a quasi judicial ma
ture, involving the exercise of delib.
crate judgment and large discretion
and depending upon considerations af-
fecting the public health and general
convenience throughout an extensive
territory; and the exercise of such tudg-
ment and discretion in the selection
ana adoption of the general plan or sys-
TEN or drainage, Is not subject to a
revision by court or jury in a pri-
waite action for not sufficiently draining
a particular lot Of land. But the con-
struction and repairs of sewers. accord
ing 70 the general plan so adopted, are
simply ministerial duties; and for any
negligence in so constructing a sewer
or Keeping it in repair the municipal
1ty which has constructed and owns the
sewer may be sued by person whose
property is thereby injured"
This is re-statement Of the doctrine
established in this commonwealth in the
early case Of Child VS.. Boston, 4 Allen.
Il. Stated briefly. the rule Is that for
any injuries resulting from a faulty
plan In the system OF sewage, the mn
nicipality is not liable, but from iniu-
ries resulting from negligent construc-
ton or repair Of the sewers after con-
struction, 1t may be liable
II will be observed from the forego-
ing statement OF facts that perhaps the
whole damage resulted from "vis ma
jor'' or "aet Of God" but IL not, that
there Is no evidence showing any fault