Melrose v. Cutter , 159 Mass. 461 ( 1893 )

Morton, J.

The plaintiff concedes that only an easement was granted in the location. We also think that the town is bound to maintain the drain and keep it in repair, and that it is the proper party to bring this bill. Clark v. Worcester, 125 Mass. 226. Needham v. New York & New England Railroad, 152 Mass. 61.

The drain is for the benefit of Melrose and Malden, and within their respective limits belongs to them. They naturally would be expected to maintain it and keep it in repair. Unless they are to do so, there is no provision for its maintenance and repair. The county commissioners have nothing further to do with it after locating, constructing, and paying for it. We think the intention was that it should be kept in repair and maintained by Melrose and Malden.

The court found that, if the brook were generally covered, it would be very difficult to clear it out, and cause extra expense and damage to the town. If the drain belongs to the town, and the town has the right to maintain it as an open drain, the proposed action of the defendants will directly interfere with the rights of the town as a town, and render it the proper party to bring this bill. Needham v. New York & New England Railroad, ubi supra.

The principal contention of the plaintiff rests on the ground that" there was a two-foot passageway or place for deposit on each side of the drain which would be obstructed. But although it is said in the location that the stakes are driven eight feet from the centre line, it is also said that the drain is laid "out twelve feet wide, and that the location is six feet from the centre line. It is found, it is true, that the drain was widened by the defendant Benson without, so far as appears, any right to dó so, or any authority from the town, to the full width of-twelve feet, which implies that it was constructed originally of less width than the location. But that does not show the existence of a passageway under and as part of the location.

There is, however, another ground on which we think the plaintiff is entitled to the relief which it seeks. If the defendants have a right to build and maintain their shop over the drain in the manner in which they have done or propose to do it, other abutters on the drain have a like right. If an abutter can cover the drain with a building he can cover it with stone. The result would be that the easement granted by the Legislature would be limited to the right to build and maintain a covered drain. We find nothing in the act indicating any intention on the part of the Legislature to limit in such a manner the enjoyment of the easement granted. It is a general rule, that, in taking land for public purposes, all uses of the land necessary or incident to the enjoyment of the public right are included. Brainard v. Clapp, 10 Cush. 6. The uses thus included are not to be extended beyond those reasonably necessary and incident to the purpose for which the land is taken, but are to be confined to them. Clark v. Worcester, 125 Mass. 226.

If a fee is not taken the landowner may make any use of his premises which will not interfere with the enjoyment of the public right. Usually, however, damages are assessed on the theory that the public use will be exclusive. There is nothing to show that such was not the fact in the case.

Further, the act in question was a measure in the interest of the public health. In the absence of anything in it limiting its scope to the maintenance of a covered drain, there is abundant reason for construing it so as to give the public authorities the right to maintain the drain as an open or covered one as they may deem best. If the drain had been constructed and maintained as a covered drain, as was the case in Clark v. Worcester, then it is possible that the defendants could rightfully build over the location. That, however, is not the case.

We think the conduct of the defendants constitutes an invasion of the rights of the plaintiff, and that it is entitled to the injunction which it seeks. It is not necessary that it should appear that the plaintiff has sustained actual damage. Stowell v. Lincoln, 11 Gray, 434. Harrop v. Hirst, L. R. 4 Ex. 43.

Decree dismissing hill reversed, and decree to he entered for plaintiff.