The Worcester spy. [volume] (Worcester, Mass.) 1898-1904, 1899-08-27

field of ten horses. She has fight o
could possibly be attributed to any ac
of the city, resulted entirely from the
plan adopted by the city council in it!
quasi judicial capacity. Under the rule
of Child VS.. Boston, the city therefore
cannot be liable. Although all the
facts show that this rule must govern
any alleged liability of the city, yet the
comprehensive scope of your order
seems to require some further discus
sion. 1t is not at all clear that any
! system could have been adopted with
| in the limits of reasonable expense
and using the word reasonable" with
reference to the large interests involved
which would prevent in time Of ex-
| traordlnary freshet or sudden heavy
| rainfall, a certain amount of sewage
| overflow in the low sections of the city
Indeed, 1t is quite likely that the land
upon which the houses of many of the
petitioners stood was subject to period
ical overflow before the construction OF
any artificial drainage, and that nc
system of sewers at an expenditure OF
money fairly to be expected of a mu-
nicipality could be devised which would
entirely obviate the burden laid by
nature upon these low lands.
AS to the claim for damages to gar
den crops and other property resulting
directly from the overflow of the sewer
through manholes and catch basins, the
principle enunciated in Barry v. Lowell
s Allen, 127, seems to apply. The gist OF
this decision was that no action could
be maintained against a municipality
for failure to keep cess pool and sewer
in repair, whereby waste water accumu-
lated and overlooked upon property not
directly connected with the public
sewer. This case has never been over.
ruled, although possibly it may be-
somewhat narrowed in some of it's ap.
| phcations by one or two later decis.
ions.
The claim most insisted upon by tbs
| petitioners at the hearing was that the
injuries resulted from the system
| adopted by the city for the establish
ment of the publication works at Quin.
| sigamond, and for the turning of tht
| sewage from the main trunk sewer init
the publication works. This make:
necessary an inquiry into the circum,
stances which led to the establishment
Of the publication works.
1t is we'll enough to keep in mind al
the while that the city is not liable fol
| all the injuries occasioned by a sewage
system, and many attempts, which hav;
! failed, have been made to render tn,
city of Worcester liable. In Washburl
| q Moen VS.. city of Worcester, 116 Mass.
1t was held that, although the city con
verified the channel of Mill brook inrt
a sewer and opened into it other sew
ers and drains to receive all the sewag,
| of the city, and discharged it upon lanC
of the Washburn & Moen Manufacture
| ing Co. in such a way as to create
nuisance and cause special damage t.
! its property this did not render the city
| liable to a bill in equity for an abate
! ment of the nuisance. Later, in Mors,
VS.. Worcester, 199 Mass. 1863, another at
| tempt was made to compel the city t,
! abate what was alleged to be a nuts
] auce in the Blackstone river In tina
| case the court held that while relic
! might be afforded provided that i
| Gould be proved that the city carelessly
negligently and unnecessarily so con
! structed its sewers and drains and 81
| discharged the waters therefrom as Il
/ create nuisance, yet that if 'the only
| mode Of preventing the pollution of thu
| river is found to be by the adoption O.
an extensive system of publication, in
! dependent of the construction o
| the sewer, requiring the taking of large
! tracts of land, We must not be under
| stood as implying that it is within the
! duty or the power of the defendant t.
| do this. The power to convert the brool
! into sewer carries by implication the
power to eXpend money for any plan o.
work which is an incident or part O.
| the main work authorized by the stat
ute, but it would seem that the statute
does not give the defendant power t.
] take lands or expend money for an in
! dependent system of sewage purifica
| ton. If such system is rendered neces
sary by the construction of the sewer
the remedy must be sought by the leg
| islature, which can best adjust and set
| tie the conflicting rights and interests
| of the public and of the riparian owners
upon the river"
Soon after, and perhaps in view Of
| this decision, there was an investiga.
| ton of the subject of the drainage oil
| the Blackstone river valley by order OF
! the legislature, followed by a determi-
nation of the general court in chap 49,
| of the laws of 1885, that the only way
| to deal with the sewage Of Worcester
was by additional legislation. This ac
is quite different in it's general terms
| from any other sewage act in the com.
monwealth, in that 1t is mandatory and
| not permissive command, not an au.
| thorization. The first section provided
| that the city Of Worcester shall
without being limited to any particular
system, within four years of the pas.
sage of this act, remove from it's sew
age DeIOTe It's ulScudIBe III, the BRICK
stone river the offensive and pollutine
properties and substances therein. Sc
that afterits discharge into said river
either directly or through it's tribu.
taries, it shall not create a nuissnct
or endangeT the public health"
1t may be remarked in, this con.
nection and may well be decisive OF
your inquiry that if the device adopt.
ed is the most practicable means o.
accomplishing such removal, and OF
preventing the flow of the sewage into
the Blackstone river before publication
the city under this statute is yet bound
to maintain it, as 1t must be assumed
that the Legislature understood all the
effects of its requirement in enactine
this statute, and that If any relief is tc
be had it must be by application tc
the general court for remedial legisla-
ton. Without relying upon this sug-
gestion and passing to further dis
cussion of this statute, 1t is significant
that no other statute exists with refer
ence TO the construction of sewers by
municipalities in this commonwealth,
with a single exception, hereafter to be