Bickford v. Inhabitants of Hyde Park , 173 Mass. 552 ( 1899 )

Lathrop, J.

If we assume in favor of the respondent that the petition cannot be maintained under the St. of 1896, c. 287, § 4, inasmuch as there was no taking of the petitioner’s land, we still are of opinion that the petitioner may recover for the injury done to her estate under § 16 of the act referred to. This section is as follows: “ The provisions of chapter fifty of the Public Statutes and of acts in amendment thereof, so far as applicable and not inconsistent with this act, shall apply to the town of Hyde Park in carrying out the provisions of this act.”

Section 3 of the Pub. Sts. c. 50, is as follows: “ Damages occasioned by the laying, making, or maintaining of main drains or common sewers, shall be ascertained and recovered in a city, as in the laying out of highways or streets therein; and in towns, as in the laying out of town'ways.”

To ascertain what damages may be recovered, we must turn to the Pub. Sts. c. 49, § 16, which is as follows : “ In estimating the damage sustained by laying out, locating anew, altering, or discontinuing a highway, or by an order for specific repairs, regard shall be had to all the damages done to the party, whether by taking his property or injuring it in any manner; and there shall be allowed, by way of set-off, the benefit, if any, to the property of the party by reason thereof.”

It is well settled that under this and similar statutes, allowing all the damages done to a party, whether any of his property is taken or not, injury to a landowner by draining his well may be recovered for by a petition under the act. Sheldon v. Boston & Albany Railroad, 172 Mass. 180, and cases cited. See also Penney v. Commonwealth, ante, 507. Exceptions sustained.