The decisions of this Court in the cases of the
City of
Boston v. Lecraw, 17 How. 426, and
Richardson
v. City of Boston, 19 How. 263, referred to and
explained.
Indictments against the City of Boston, in 1848, for permitting
unhealthy vapors and exhalations to arise in that part of the city
which the sewer in question was erected to remedy were admissible
in evidence on the part of the city to show that the conduct of the
city did not tend to oppression, and as part of the history of the
case. An instruction of the court below was correct,
viz.,
that a former verdict and judgment, though admitted in evidence,
should have little or no weight on the decision of the case,
because it was founded on erroneous instructions on the law.
So also an instruction was correct which told the jury that
there was no evidence in the case which would authorize them to
find that the City of Boston had ever dedicated to the public use a
public highway, town way, dock, or public way between the wharves
in question for the access of boats and vessels between said
wharves to high water mark or the egress therefrom to the sea.
These instructions were in conformity with the previous
decisions of this Court.
This was an action for the continuance of an alleged nuisance
from 13th September, 1850, to 15th April, 1852. It will hereafter
appear why the first of these dates was named.
The nuisance charged is described in two preceding cases,
viz., 58 U. S.
Lecraw, 17 How. 426, and
Richardson v. City of
Boston, 19 How. 263. Without noticing at present
the first-named case, it may be proper to give the history of the
present one.
The action was brought by Richardson in the Circuit Court of
Massachusetts to October term, 1850.
Page 65 U. S. 189
1851, March. General issue pleaded, and special plea; plaintiff
demurs to special plea.
1851, April. Plaintiff has leave to amend his declaration by
adding two counts.
1851, May. A statement of facts submitted.
1851, October. Agreement of counsel that the case should be
carried to the Supreme court.
1852, May. Plaintiff has leave to amend declaration.
1852, October. Boston files petition to remove the case, because
Mr. Justice Curtis had been counsel and judge Sprague was
interested; removed to Rhode Island.
1853, June. Argued before judge Pitman on the agreed statement
of facts; verdict guilty; damages and costs, $2,026.87 up to 13th
September, 1850; judgment on sixth count; motion for new trial;
pending which, the case of
Lecraw v. City of Boston was
decided by this Court, as reported in 17 How.; case continued by
agreement.
1855, June. New trial granted; plaintiff amends writ and
declaration by adding a count, which is the subject of comment by
this Court in the present opinion; verdict not guilty; plaintiff
sues out writ of error, and brings the case up to this Court to
December term, 1855.
1856, December term of this Court. Case tried, and reported in
60 U. S. 19 How.
263; judgment reversed.
1857, November term of circuit court. Mandate from this Court
presented; new trial ordered.
1858, June term. Plaintiff amends writ and declaration by
striking out the words constituting the
ad damnum in said
writ, as the same now stands, and inserting in lieu thereof the
words following,
viz., "ten thousand dollars."
"By S. BARTLETT,
his Attorney."
"And now, by agreement of parties, and with the leave of the
Court here, plaintiff amends the several counts of his declaration
by striking therefrom such parts thereof as claim damages for the
injury to the ends of his wharves by material deposition near the
same, by means of the structure complained of."
The case then went on to trial before Mr. Justice Clifford
Page 65 U. S. 190
and Judge Pitman. Under the instructions which were given by the
court, the jury found a verdict for the defendant, and the
plaintiff again brought the case up to this Court by a writ of
error.
The bill of exception was very long, and included the record of
the former case, together with a vast quantity of other matter. The
instruction of the court, admitting this record in evidence, was as
follows:
"That the record of the former verdict and judgment is
admissible in evidence, but inasmuch as it appears that the verdict
was found by the jury under an erroneous instruction given by the
court, the judgment is entitled to very little weight upon the
question of the right to recover in this case, and none whatever
upon the question whether the supposed way or dock before described
was duly laid out and established by the town of Boston, or the
authorities thereof, pursuant to law, either as a public highway,
town way, or public way, for the access of boats and vessels to
high water, or the egress therefrom to the sea, as is alleged in
the seventh count of the plaintiff's declaration."
"
By his Honor judge Pitman"
"The record above referred to was in a case decided by me upon
an agreed statement of facts, which was excluded in this case. It
was therein admitted by the defendant that the place between the
said wharves was 'an ancient public dock or highway.' This fact,
and the case having been submitted to judge Sprague and decided by
him in favor of the plaintiff before the case was sent to the Rhode
Island District, I was disposed to decide the same way unless I saw
it was manifestly erroneous. It was to be determined under the law
of Massachusetts, with which I believed he was much better
acquainted than myself. I did not, therefore, so critically examine
the documents in the case, and their legal effect as I have since
done. Since the decision of the Supreme Court of the United States
in the case of
Lecraw v. City of Boston, I have considered
the opinion erroneous which I then delivered, and the judgment as
entitled to no weight for that reason as evidence to a jury, and
therefore I excluded the judgment
Page 65 U. S. 191
from the consideration of the jury in the former trial. I am now
of the opinion that it is entitled to no weight, though it be
admissible."
"I did not decide that the supposed way was laid out as a way
for boats and vessels by the town of Boston or its authorities. I
instructed the jury that the plaintiff was entitled to recover upon
the sixth count of his declaration, the one on which he rested his
case, and they found a verdict accordingly."
"JOHN PITMAN"
"
District judge U.S., R. Island District"
"SEPTEMBER 16, 1858."
MR. JUSTICE GRIER delivered the opinion of the Court.
This is the third time in which this claim to have damages from
the City of Boston, for erecting drains and sewers on their own
land for the preservation of the health of the city, has come
before us.
The plaintiff is the owner of two wharves, called Bull's Wharf
and Price's Wharf, running from high water to low water mark. The
space between these two wharves belongs to the City of Boston,
being situated at the foot of Summer Street, and as it was but
thirty feet wide, it became, by the mere accident of its position,
a very convenient dock, or slip, for plaintiff, so long as the city
did not see fit to reclaim their land. Formerly, the drains and
sewers which ran under Summer Street discharged at the end of that
street at high water mark; but, as the city increased, this
discharge of drainage
Page 65 U. S. 192
became pestilential, and a nuisance to the neighborhood. To
remedy this evil, the city was compelled to extend their drains out
to low water mark, and this is the nuisance complained of in this
and the other suits.
The case of
Lecraw v. Boston, to be found in
58 U. S. 17 How.
426, first introduced this controversy to this Court. Lecraw was
tenant of Richardson and his title consequently the same. It was
claimed that the City of Boston, by not wharfing out their land at
the end of Summer Street, had dedicated it to the public, or rather
to the private use of Richardson to whose wharves it afforded a
most convenient dock or slip. This claim was declared by this Court
to be wholly without foundation, and that
"whether it was called 'town dock' or 'public dock,' it would
furnish no ground to presume that the city had parted with their
right to govern and use it in the manner most beneficial to the
citizens."
It is not our purpose to again discuss this question or again
repeat the arguments and principles on which our judgment was
founded. The correctness of that decision has not been impugned or
denied, and it needs no interpretation.
During the pendency of this suit of Lecraw, the tenant, and
before its decision in this Court, Richardson had brought a suit
for damage to his reversion by the same alleged nuisances, and the
verdict and judgment being for less than two thousand dollars, the
city could not have a writ of error to reverse it, as in the other
case. When the present case came on for trial, the decision of this
Court in the
Lecraw case being known, in order, if
possible, to avoid the effect of that decision, a new count was
added to the declaration, drawn with great ingenuity and subtlety,
charging that "there had
been A HIGHWAY, or TOWN WAY, or PUBLIC
WAY, to the sea or low water, duly laid out and established
pursuant to law," and that the drains made by the city had
"caused mud, earth, and other materials, to be thrown and deposited
upon and near the said wharves."
The report of our decision on this case will be found in
60 U. S. 19 How.
263.
We then decided that a former verdict and judgment in an
Page 65 U. S. 193
action on the case for continuance of the same nuisance was not
conclusive evidence, but is permitted to go to the jury as
persuasive evidence. We stated in what cases it ought to have
weight and in what it could have little or none, as where the
former verdict was the result of an erroneous instruction on the
law by the court.
As the additional count, on which the plaintiff relied, was
rather equivocal or ambiguous as to what was meant by a "highway or
town way" to the sea or low water mark, we decided that public
officers of a town have no power to lay out a town way between high
water and the channel of a navigable river. A board of pilots may
mark by buoys the best channel for vessels in a bay, but this would
hardly be called a "town way on the ocean." Indeed, it did not seem
to be seriously contended on the argument that the selectmen in
1683 had assumed or intended to extend a street or town way
by
water over the great ocean highway. But as the City of Boston
was owner of the soil between high and low water mark, it had equal
right to reclaim the land as other owners, and having done so, a
street or "town way" might be established thereon.
The court decided that if the land was so reclaimed, and a
highway laid out on it, the right to use it as a street or highway
on land becomes appurtenant to the property of the adjoiners, who
might well maintain an action for a nuisance on such street or
highway.
The plaintiff had alleged in this count that he had received
damage to his wharf by accretions of mud &c., below low water
mark, and there was some evidence to support the allegation. The
court decided that this fact should have been submitted to the
jury. It was a question entirely distinct and separate from a claim
of right of highway in the dock.
With this history of the antecedents of this case, there can be
no difficulty in disposing of the exceptions.
The first exception is to the admission of the bills of
indictment against the city. They constituted part of the history
of the case, and were referred to in the testimony of the
plaintiff, and were therefore not wholly irrelevant. They
tended
Page 65 U. S. 194
to show "that the conduct of the city," as disclosed by the
evidence, did not "tend to oppression," as has been charged in the
argument in this Court.
The next exception is to the charge of the court in their
instruction, that the former verdict and judgment, though admitted
in evidence, should have little or no weight on the decision of the
case, because it was founded on erroneous instructions on the law.
This instruction was in exact conformity with the ruling of this
Court. The verdict was on an agreed statement of facts, not now
disputed, on which the court gave an opinion, since decided by this
Court to be a mistake. Like many other matters given in evidence to
support a case, this verdict was received as not irrelevant,
although the proof on the other side might show it to be
worthless.
The last exception is to the charge of the court
"that there is not any evidence in the case which will authorize
the jury to find that the supposed way or dock between the
plaintiff's wharves, from high to low water mark, for the free
egress and ingress of boats and vessels to and from the same, as
alleged and described in the seventh count in his declaration, was
ever dedicated by the Town or City of Boston to the public use,
either as a public highway, town way, dock, or public way for the
access of boats and vessels between said wharves to high water
mark, or the egress therefrom to the sea. That there is not any
evidence in the case which will authorize the jury to find that the
supposed way or dock between the plaintiff's wharves, from high to
low water mark, for the egress and ingress of boats and vessels to
and from the same, as alleged and described in the seventh count in
his declaration, was ever duly laid out and established by the Town
of Boston, or the authorities thereof, pursuant to law, either as a
public highway, town way, or public way, for the access of boats
and vessels between said wharves to high water mark, or the egress
therefrom to the sea."
This instruction is in entire conformity with the previous
decisions of this Court on this subject.
There was nothing, in the opinion of this Court, which should
subject it to the misconstruction of having decided that a
Page 65 U. S. 195
"town way" for boats and vessels could be laid out on the high
seas, or of imputing to the town officers such an obliquity of
understanding as the assumption of such a power would argue; on the
contrary, the court decided that the public officers had no such
power, but that the city, after it reclaimed the land to high water
mark, might continue Summer Street as a highway on land, for a
nuisance, to which the plaintiff might sustain an action, and this
case was remanded in order to give the plaintiff an opportunity to
have the verdict of the jury on this subject and also for any
injury he might have sustained by the drains causing an
accumulation of matter at the outer end of the plaintiff's wharves.
The record shows that the plaintiff abandoned any claim for damages
for either of these causes, and he was, of course, left without any
case to be submitted to the jury.
Judgment of the circuit court is therefore affirmed, with
costs.
