T. GREGORY SULLIVAN & another vs. COMMONWEALTH.

WHITTEMORE, J. These are the petitioners' exceptions to the direction of a verdict for the Commonwealth on the trial of their petition for the assessment of damages under G. L. (Ter. Ed.) c. 79 for injuries caused to the house owned by them at 320 Chestnut Street, Newton, by rock blasting in the course of the construction of an aqueduct to improve the distribution of water to the metropolitan water district.

There was evidence from which the jury could have found that the blasting over a period of weeks or months between

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April, 1948, and August, 1949, caused serious injury to the petitioners' house including cracked plaster and the breaking of a pipe in the attic when the petitioners were away for several days with consequent extensive water damage, and that the injury was caused by vibrations transmitted from the area of the blasts through the stratum of solid and rigid rock which underlay the petitioners' house and in which the aqueduct, at some distance from the petitioners' house, was being constructed; and also that the vibrations in the rock caused repeated vibrations in the house and in the pipe which extended up through the house to the attic, and eventually caused the pipe to sustain "elastic fatigue" and snap. It was undisputed that the work was done by independent contractors and that blasting was necessary to construct the tunnel. There was no evidence of use of more explosives than was required or would be permitted under any standards which might have been shown to be applicable. The only express testimony as to due care was that "the blasting at all times was performed in a careful and approved manner."

We have discovered no statutory authority express or implied for recovery under c. 79 for injury caused by this particular public work to property not taken. And the facts, in their aspect most favorable to the petitioners, do not show that property of the petitioners has been "appropriated to public uses" so that they are assured "reasonable compensation therefor" by Massachusetts Constitution, Declaration of Rights, art. 10. Therefore, for reasons hereinafter stated the petitioners have no remedy under c. 79. We discuss first the absence of a statutory provision for damages.

1. Since the decision of Callender v. Marsh, 1 Pick. 418, ". . . it has been the almost invariable practice for the Legislature, whenever it authorizes the infliction of damage to private property by a public improvement, to provide that the owner may recover the amount of such damage by petition to the Superior Court . . .." 1. Preliminary Report of the Commissioners to Consolidate & Arrange the

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General Laws (1918) 20. That practice, however, was not followed in respect of the statute under which the subject aqueduct was built.

The authorizing statute is St. 1938, c. 460, as amended by St. 1946, c. 515, in respects not now material. It provides in Section 2 that the metropolitan district water supply commission acting for the Commonwealth may take land and rights by eminent domain and in Section 3 that "Any taking under this act may be in fee or otherwise, perpetual in duration or for a limited period of time, according as the commission shall determine and set forth in the order of taking. All takings under this act and all proceedings in relation to or growing out of the same shall conform to chapter seventy-nine of the General Laws, except in the following particulars: (a) The commission need make no award of damages sustained by persons or corporations in their property by any such taking. (b) The notice required by section eight of said chapter may be given at any time within one year after the recording of the order of taking as provided in section three of said chapter. (c) Petitions for the assessment of damages under section fourteen of said chapter may be filed within two years after the recording of the order of taking provided for in section three of said chapter. So much of section sixteen of said chapter seventy-nine, as amended, as appears after the word `vested', in the third line, shall have no application to takings under this act." There is no express provision in respect of damages for injury to land not taken. We think that this reference to c. 79 is to be interpreted broadly in view of the "almost invariable practice" of the Legislature. But the authorizing words limit the application of c. 79 to "All takings under this act and all proceedings in relation to or growing out of the same . . ." (emphasis supplied). This petition is not in relation to, nor does it grow out of, a taking. It is in relation to and grows out of construction operations authorized by the statute in all lands through which the project might pass, whether owned by, granted to or taken by the Commonwealth. We therefore can find no implication in the reference to c. 79 of

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an intention to authorize the recovery of damages for injuries to land not taken.

The authorizing statute refers to other statutes which provide for earlier related construction but the provisions therein for recovery of damages are not broad enough to cover claims arising under this statute. See St. 1938, c. 460, Section 1; St. 1926, c. 375; St. 1927, c. 321; Connor v. Metropolitan District Water Supply Commission, 314 Mass. 33; Beaman v. Commonwealth, 304 Mass. 443.

We have discovered no general authority for the recovery of damages such as are here claimed in the statutes relating to the metropolitan district commission or predecessor boards. [Note page623-1] General Laws (Ter. Ed.) c. 92, Section 32, contains the only current general provision for recovery of damages. This section, after providing that "The [metropolitan district] commission in constructing, maintaining and operating the water and sewerage system, water supply and sewage disposal may" do various things, provides only that "Any person injured in his property by the entry upon or use of his land by the commission under this section may recover his damages under chapter seventy-nine."

The right to recover damages for injury to land not taken is not given expressly or by necessary implication in c. 79. The petitioners claim under Section 9 which provides that "When injury has been caused to the real estate of any person by the establishment, construction . . . [and so forth] of a

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public improvement which does not involve the taking of private property, and he is entitled to compensation by law for such injury, if such establishment, construction . . . [and so forth] was effected by or in accordance with a formal vote or order . . . the damages shall be awarded, determined and collected and notice of the order shall be given in the same manner as if there had been a taking . . . under section one." We do not pause to determine whether the injury here was caused by construction which was effected by or in accordance with a formal vote or order. The commissioners in reporting this section (Preliminary Report, ibid., 20), after stating, as quoted above, the almost invariable practice to provide for such damages, said "this section [9] is intended to provide a procedure for such cases. It does not in itself create a liability for damages, but leaves that to the statute authorizing the particular injury."

If reference is had to Section 10 [Note page624-1] (see United States Gypsum Co. v. Mystic River Bridge Authority, 329 Mass. 130, 141-142), there is no more reason than in the case of Section 9 to construe that the section itself gives a right to recover damages. The commissioners (ibid., 21) said as to Section 10, "This section is intended to provide a remedy when there has been a taking, or an injury for which the owner is entitled to compensation, and there is no formal record which determines the extent of the taking or injury and by which the amount of the damages can be gauged, and the time when they become payable fixed."

Our attention has been directed to no decision of this court, and we have found none, which holds that the provisions

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of c. 79 or like provisions import a right to damages. [Note page625-1] In Wine v. Commonwealth, 301 Mass. 451, the statute (St. 1932, c. 241, Section 3) provided that "The cost of constructing said bridge and land takings for the same, including any damages awarded or paid on account of any taking of land or property therefor, or any injury to the same, . . . shall not exceed, in the aggregate . . . [a stated sum]" and shall be paid from the highway fund. The court (page 458) said that "under similar statutes" special and peculiar, direct and proximate damages could be recovered, and cited cases under express statutory authorizations. In Wyman v. Boston, 282 Mass. 204, there was express statutory provision (St. 1923, c. 480, Section 8) and the statement (page 207) that "the section refers to G. L. c. 79 as the measure of their rights as well as the means of enforcing them" of course does not mean that c. 79 is the source of the rights. In Nichols v. Commonwealth, 331 Mass. 581, 584, the taking was pursuant to c. 81, Section 7C, which made express provision for the recovery of "damages under chapter seventy-nine for the taking of or injury to . . . easements of access . . ." and the reference in the opinion to c. 79, Section 12, states the kinds of damages recoverable under the right given in c. 81. Section 12 defines the "measure of damages" in stated cases but does not purport to create a right thereto. The instant case does not present for construction a statute authorizing by any reasonable implication the recovery of damages for injury to land to the extent that c. 79 (that is, Section 12) provides a measure of damages.

The Legislature from time to time has made special provision for damages which would not be recoverable under a general authorization of recovery for injury to property not taken because the injury is to be deemed except therefor "consequential" [Note page625-2] or general and public. See St. 1927,

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c. 321; Connor v. Metropolitan District Water Supply Commission, 314 Mass. 33; Beaman v. Commonwealth, 304 Mass. 443; St. 1895, c. 488; Fairbanks v. Commonwealth, 183 Mass. 373; Nashua River Paper Co. v. Commonwealth, 184 Mass. 279, 282; McNamara v. Commonwealth, 184 Mass. 304, 305. It has been necessary in many cases to distinguish between such injuries and those which are direct and special. These cases show that, under a general authorization, recovery may not be had for injuries which are remote or general and public; they do not establish that there may be recovery for direct and special injury, which does not constitute an appropriation of property, in the absence of any statutory provision therefor. See Hyde v. Fall River, 189 Mass. 439; Connor v. Metropolitan District Water Supply Commission, 314 Mass. 33, 37, and cases cited; Nichols, Eminent Domain (3d ed.) Section 6.38 [1].

2. The petitioners urge that we call what happened a nuisance (see Hakkila v. Old Colony Broken Stone & Concrete Co. 264 Mass. 447, where material was thrown on the land), and they cite cases in which municipalities or public agencies have been held liable for injury caused by private nuisance in the absence of proof of negligence. But without pausing to discuss the basis of liability in such cases, it is sufficient to note that the Commonwealth is not liable unless the State or Federal Constitution or a statute imposes liability. "[E]ven if the thing authorized would be actionable at common law and a nuisance but for the statute, still it is not necessarily a taking, and unless it does amount to that no compensation can be recovered if the statute does not give it." Lincoln v. Commonwealth, 164 Mass. 368, 374-375. The Commonwealth may be sued only so far as it has consented thereto. Glickman v. Commonwealth, 244 Mass. 148. Putman Furniture Building, Inc. v. Commonwealth, 323 Mass. 179, 185. To the extent that there is liability for a "nuisance" apart from negligence, there being no taking, and no express statutory basis for damages, the remedy is in an action of tort. Bacon v. Boston, 154 Mass. 100, 102. Miles v. Worcester, 154 Mass. 511. Jones v.

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Great Barrington, 273 Mass. 483. See Wesson v. Washburn Iron Co. 13 Allen 95; Jones v. Hayden, 310 Mass. 90. The petitioners have not brought such an action and the Commonwealth, by G. L. (Ter. Ed.) c. 258, or otherwise, has not consented to be sued in tort. Burroughs v. Commonwealth, 224 Mass. 28, 29. Glickman v. Commonwealth, 244 Mass. 148.

3. There was no such "great" nuisance imposed on the petitioners' property as to constitute a taking. See Bacon v. Boston, 154 Mass. 100, 102; Nichols, Eminent Domain (3d ed.) Section 6.33. Compare Lentell v. Boston & Worcester Street Railway, 202 Mass. 115, 120. The question was raised by Shaw, C.J., in Dodge v. County Commissioners of Essex, 3 Met. 380, where there was damage to and near destruction of the plaintiff's nearby home, by necessary nonnegligent blasting. The court held this was recoverable damage under the statute and said (page 381), "It is not now [because of the statute] necessarily a question, whether the property of an individual, thus necessarily and injuriously affected, and in effect withdrawn from the profitable use and beneficial control of the owner, is appropriated to public uses, within the provision of the 10th article of the declaration of rights. It was quite competent for the legislature, in providing for the prosecution of a great public work, to require compensation to be made to persons injuriously affected by it, though not a case coming within the express requisitions of the bill of rights . . .."

Some acts, done by governmental agencies, which could be deemed nuisances and which affected but did not destroy or prevent all use of the subject property, have been held to be takings under the Fifth Amendment to the United States Constitution. Richards v. Washington Terminal Co. 233 U.S. 546 (forcing railroad tunnel smoke and gases to issue from a single portal onto the plaintiff's property). Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (deliberate and repeated firing of batteries over the plaintiffs' land). United States v. Causby, 328 U.S. 256 (repeated flying of military planes so low as to destroy use

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of land for chicken farm). But in all these cases there were such aspects of premeditation and intention of continuance as would support the concept of the creation of a servitude. See United States v. Dickinson, 331 U.S. 745, 748. This principle does not support a claim under the Fifth Amendment for damage to nearby property from blasting. [Note page628-1] Keokuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 126 (Holmes, J. "However small the damage, it may be that deliberate action in some cases might generate the same claim as other forms of deliberate withdrawal of property . . .. But . . . it is enough to say that this is an ordinary case of incidental damage which if inflicted by a private individual might be a tort but which could be nothing else.") Our decisions suggest no basis for a broader concept of appropriation or taking under art. 10 of the Declaration of Rights than is shown in the foregoing cases under the Fifth Amendment. Boston & Roxbury Mill Corp. v. Newman, 12 Pick. 467, 482. Brigham v. Edmands, 7 Gray 359, 363. Cavanagh v. Boston, 139 Mass. 426, 434-435. Miller v. Horton, 152 Mass. 540, 547. Bacon v. Boston, 154 Mass. 100, 102. Chelsea Dye House & Laundry Co. v. Commonwealth, 164 Mass. 350, 353. Sawyer v. Commonwealth, 182 Mass. 245, 247. Lentell v. Boston & Worcester Street Railway, 202 Mass. 115, 120. Home for Aged Women v. Commonwealth, 202 Mass. 422, 431, 436. Connor v. Metropolitan District Water Supply Commission, 314 Mass. 33, 37, and cases cited. United States Gypsum Co. v. Mystic River Bridge Authority, 329 Mass. 130, 135.

Even though here the risk of injury by blasting to some property was necessary [Note page628-2] to the improvement and the possibility

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of injury to some property located on the rock stratum might have been foreseen (compare John Horstmann Co. v. United States, 257 U.S. 138), there was no deliberate act in respect of the petitioners' property, and no basis for inferring an actual intention to withdraw the property from their use for any length of time. There was no act with known result from which, and the repetition of like acts thereafter, an implication of such intention could arise. There is no basis for a claim under art. 10 that a servitude has been imposed on the petitioners' land. We need not decide what precise case would be within the principle that the Legislature does not have "an unlimited right to destroy property without compensation, on the ground that destruction is not an appropriation to public use within Article X of the Declaration of Rights." Miller v. Horton, 152 Mass. 540, 547. It is sufficient to hold as we do that the accidental aspects of the injury to the petitioners' house exclude this case.

Manifestly, if this is so no question arises under the less direct Fourteenth Amendment to the Constitution of the United States. See Connor v. Metropolitan District Water Supply Commission, 314 Mass. 33, 36.

In United States v. Willow River Power Co. 324 U.S. 499, 502, the court said, "The Fifth Amendment, which requires just compensation where private property is taken for public use, undertakes to redistribute certain economic losses inflicted by public improvements so that they will fall upon the public rather than wholly upon those who happen to lie in the path of the project. It does not undertake, however, to socialize all losses, but those only which result from a taking of property. If damages from any other cause are

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to be absorbed by the public, they must be assumed by act of Congress and may not be awarded by the courts merely by implication from the constitutional provision." This principle is applicable in construing art. 10. Whether this is an appropriate case for a provision for compensation for injuries from a public improvement, "a remedial provision . . . made in the spirit of the declaration of rights" (Shaw, C.J., in Parker v. Boston & Maine Railroad, 3 Cush. 107, 113), is not for us to decide.

Exceptions overruled.