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CITY OF BOSTON.
Ordered, That the Committee on Claims, with the approval of His Honor the Mayor, and the City Solicitor, be and they are hereby authorized and empowered to settle and adjust the claim of Thomas Richardson, against this city, in such manner and upon such terms as they may deem most advantageous to the interest of the city; and that they report to the city the terms of such settlement, if any should be made ; the expense of such settlement to be charged to the appropriation for Incidentals.
Passed May 3, 1872.
IN BOARD OF ALDERMEN, May 20, 1872. In accordance with the requirements of the foregoing order, the Committee on Claims beg leave to report, that they have succeeded in effecting an amicable settlement of the long-standing controversy between Thomas Richardson and the City of Boston in regard to damages caused by the extension of a sewer at the foot of Summer street. The terms of the settlement are recited in the indenture, a copy of which is transmitted herewith.
In connection with this record of the settlement it may be well to present a brief statement of the litigation which has been carried on between the parties in interest during a period of twenty-two years.
The Summer-street dock cases arose out of the extension by the city, in 1849, of the Summer-street sewer, over a strip of flats, lying between two wharves, owned by Thomas Rich
ardson, and used by him as a dock in connection with his wharves. The strip of flats or dock was in continuation of Summer street as anciently laid out, and the sewer which emptied into it was one of the oldest and most important in the city. When Mr. Richardson purchased these wharves, in 1835, one of them was a mere bulkhead and the other a short pier. He soon after extended them both several hundred feet seaward, and the consequence was that the outlet of the sewer was left at the head of a long dock, and, the tides failing to carry away the deposits from the sewer, they became offensive to the neighborhood. In December, 1848, the Grand Jury of Suffolk County found an indictment against the city for suffering and maintaining a nuisance at the foot of Summer street, "in and upon the land of said city," occasioned by the sewer. The complaint on which this indictment was found was in the handwriting of Mr. Richardson, although not signed by him. The city authorities undertook to remedy the difficulty by cleaning out the dock, but the remedy was not effectual, and in June, 1869, another indictment was found for the same cause. The city authorities were then convinced that some more effectual measures must be adopted, and the following order was passed :
IN BOARD OF MAYOR AND ALDERMEN, Tuesday, July 3, 1849.
"Whereas, there are two indietments pending against the City of Boston, for a public nuisance on the flats at the foot of Summer street, in said city, which nuisance is said to be caused mainly by an ancient sewer which has its outlet upon the said flats; and whereas, great complaints of said nuisance have been made to this Board, by divers citizens ; and whereas, due notice has been given to Thomas Richardson, and all persons interested, to appear and show cause, if any they have, why the said flats should not be filled up, and the said sewer extended to low-water mark, and such other means taken in the premises as should effectually prevent the said nuisance for the future; and at a meeting of this Board, on the twenty-fifth ultimo, the said
Richardson did appear, and was heard in his own behalf; and
That the common sewer at the foot of Summer street be extended five hundred feet over the land or flats belonging to the city, in the direction of the channel, under the direction of the Superintendent of Sewers and Drains."
The sewer was built in accordance with this order, and has been the subject of litigation ever since. Mr. Richardson, calling himself a citizen of Rhode Island, commenced no less than ten suits in the United States Circuit Court, and Mr. Lecraw, his tenant, also commenced one suit in the same Court. The suits of Mr. Richardson all embrace the same subject matter, extending over different periods of time, and might have been embraced in a single suit if he had chosen so to do. The main allegation was that the plaintiff, as the proprietor of the two wharves, had a right of access to and from the sea, through the dock, to the sides of his wharves, and that the sewer interrupted his easement, and did him great damage.
At the trial of the first case, in Rhode Island, before Judge Pitman, at the June term of the United States Circuit Court, 1853, the Court decided that the space between the plaintiff's wharves was an ancient public dock, or way, over which plaintiff had a right of access to his wharves; that this right could not be taken away from him without compensation, and, as it was destroyed by the city's drain, and no compensation had been made, plaintiff could recover in damages. The jury returned a verdict for the plaintiff ; but as the amount was not large enough to enable the counsel for the city to carry the case before the Supreme Court at Washington, we were obliged to pay the judgment, and he
now has the money, although in a subsequent case it was decided, at Washington, that the ruling of Judge Pitman was wrong.
At the same term of the Court, Lecraw's case was tried, which embraced the same subject-matter, and in which the ruling of the judge was similar. The verdict in this case being large enough to enable the city to carry it to Washington, they did so, and the result was eminently satisfactory in establishing the right and duty of the city authorities to extend the sewer as they had done.
“ It was," said the Court, “not only the right, but the duty of the city, to extend their sewers to low-water mark, for the purpose of removing a nuisance injurious to the health of the citizens; and having done so on their own land, the damage to the plaintiff, if any, was damnum absque injuria, and he was not entitled to recover.”
Subsequently to this, the second action of Mr. Richardson was brought on for trial at Newport, Rhode Island, when the judge, on request of the defendants, ruled that there was not sufficient evidence in the cause to authorize the jury to find the rights claimed by the plaintiff, and the violation of those rights by the defendants so as to sustain the plaintiff's action, and a verdict was rendered for the city. The plaintiff carried the case to the Supreme Court, where a new trial was ordered, on the ground that the judge erred in ruling that there was not sufficient evidence to sustain the action, and that some of the evidence offered by the plaintiff ought to have been submitted to the jury, with proper instructions as to the weight to be given to it.
The new trial which was thus ordered took place at the June term, 1859, in Newport, before Judges Clifford and Pit
After a long and patient investigation of the whole matter, the Court ruled as follows, upon the main point: