Young v. City of Boston , 104 Mass. 95 ( 1870 )

Chapman, C. J.

By the St. of 1846, c. 167, entitled “An act for supplying the city of Boston with pure water,” the city was authorized by and through the agency of three commissioners to construct its now existing aqueduct. It was to be maintained and regulated under the authority of the city council, and at the expense of the city; and one of its principal objects was to "supply the occupants of tenements in the city.

The plaintiff occupies a tenement in a model lodging-house so called; and a special provision is made in the city ordinances for this class of tenements. A section of the ordinances cited, establishing the rates of charges for the use of the water in such houses, provides that, “ for each tenement having water fixtures within the same,” the rate shall be “ three dollars annually; and for each tenement not having water fixtures within the same, but taking the water from general fixtures used in common with other tenements, two dollars annually.” The word “tenement” is obviously used to describe such part of the house as is separately occupied by a single family, in contradistinction from the whole house. The water board and registrar are to be governed by this ordinance. Parker v. Boston, 1 Allen, 361. And no more authority is conferred upon them by the ordinance to compel the occupants of a tenement to take the water in common with the occupants of the other tenements in the house, than to compel the occupants of all the separate houses in a block or a street to take the water in common with each other; it being agreed that the plaintiff’s tenement has separate fixtures, and he not using, nor desiring to use, the water in common with others. Decree for the plaintiff.