Butler v. Worcester. southerly line of Front Street, to straighten, deepen and pave the channel of the brook between these points, and to inclose it in retaining walls, and to appropriate, establish and lay it out as a main drain and common sewer; and they located it by metes and bounds, and adjudged that this section of the brook be established and laid out as a main drain and common sewer, and suitably paved and inclosed in retaining walls. The location of this part of the sewer runs through the Fox mill-pond and dam, and by its subsequent construction as laid out, the pond, dam and water privilege were destroyed. June 28, 1869, the city council passed an order by which they adjudged it necessary for the purposes of sewerage, drainage and the public health, that the location of Mill Brook between the northerly line of Green Street and the northerly line of Cambridge Street be changed from its present circuitous location; that it be located parallel with Millbury Street between said points; that the new channel be excavated, paved, walled and inclosed by an arch or retaining walls, at such times thereafter as the city council might adjudge it fit and proper; and adjudged that the same be appropriated, established and laid out to be hereafter constructed and maintained as a main drain and common sewer, and located the same by metes and bounds. July 12, 1869, the city council passed a similar order with respect to that portion of Mill Brook between Front Street and Exchange Street; February 28, 1870, they passed a similar order with respect to that portion of the brook between Exchange Street and a point near Court Mills; and April 3, 1871, they passed a similar order with respect to that portion of the brook between the point near Court Mills and a point north of Lincoln Square. By these orders the several sections were in terms laid out as main drains and common sewers. April 3, 1871, the city council passed an order authorizing the joint standing committee on sewers to cause to be prepared all the necessary plans and specifications, advertise for proposals, and make all the necessary contracts for excavating and walling up that portion of the Mill Brook extending from Green Street to Cambridge Street, over the new location of June 28, 1869, and to Butler v. Worcester. build bridges over the brook at the crossing of each of the streets over the new location. February 3, 1868, the city council passed an order by which they authorized the joint standing committee on sewers to prepare the necessary specifications, advertise for proposals, and make all necessary contracts for excavating and walling a portion of Mill Brook extending northerly of the portion walled in 1867, not less than 1250 feet, in accordance with the plan submitted to and adopted by the city council in 1866, and to contract for the building, renewing or repairing stone bridges at the crossing of Winter Street, Temple and Franklin Streets; also the bridge at the intersection of the Boston and Albany Railroad; these streets crossing the brook by bridges upon the section to be built under the order. The several sections of the Mill Brook sewer laid out under the orders above referred to were put under contract, and had been nearly or quite completed before the assessment. The sewer follows for a part of its distance the old channel of the stream, and for the remainder of its length is located entirely outside of the old channel. It is located partly through the public streets, and partly through private lands. That portion of Mill Brook sewer extending north of the south line of Front Street is covered over by an arch of uniform size, the whole distance, including such portions as are crossed by streets. That portion of the sewer south of Front Street is not covered over by an arch except at points where it is crossed by existing streets, or by contemplated streets, and at such points arched bridges are built across the sewer for the streets. Three of these arched bridges were substituted for bridges previously existing at the same points, and the new structures were more substantial and costly than the old ones. The arched bridges in all cases were built as part of the sewer under the same contracts, and the expenses were charged to the expenditure for sewers. Mill Brook runs through the lowest part of the populous portion of the city, and the sewage of the city can be conveniently conveyed away in no other mode than into and by it. All the sewers of the city either discharge directly into Mill Brook sewer, or into other sewers that discharge directly into Mill Brook Butler v. Worcester. sewer, except such sewers as discharge into the natural channel of the stream between Green and Cambridge streets, and the sewage from the last named sewers passes into Mill Brook sewer with the waters of the stream at a point about fifty feet above Cambridge Street. All the sewers, including Mill Brook sewer, are entered by the particular drains of persons whose estates border upon them, and are designed and constructed to be so used. The city council, by orders passed at various times from June, 1867, to November 20, 1871, laid out and constructed various sewers and drains in streets and private lands in the populous portion of the city. These sewers and drains vary largely in size and cost. In some instances the orders embraced a number of sewers in different streets, and in others only a single sewer in a single street or part of a street. The first four of the orders were passed after issuing an order of notice, and hearing the parties; and all subsequent orders, including that by which the sewer in Gold Street was laid out, were passed without any order of notice or hearing of the parties. The last of the four orders was passed August 31, 1867. By an order passed April 17, 1871, the city council laid out a sewer from Washington Street through Gold Street to a point near Assonet Street. The plaintiff's estate is on Gold Street, on the line of the sewer, and consists of a lot of land with a dwelling-house thereon, and the plaintiff has connected his estate by a drain with this sewer by permission of the city. June 6, 1870, the city council laid out a sewer from Mill Brook to a point near the Providence & Worcester Railroad, through Washington Street. These sewers were both constructed within a few months after they were laid out. The sewer in Gold Street discharges into the sewer in Washington Sreet, and the latter discharges into the natural channel of Mill Brook, between Green and Cambridge streets. Many of the sewers in different parts of the city were laid out by orders dated before, and many by orders dated after, the orders by which Gold Street and Washington Street sewers were laid out. Washington Street sewer has several sewers from side streets emptying into it beside the Gold Butler v. Worcester. Street sewer. That portion of the city formerly drained by the Piedmont Street and Austin Street brooks embraces a large section of the city lying in the westerly and southwesterly portion of the city, and is now drained by sewers laid out under some of the orders before referred to, which all finally discharge into a sewer in Southbridge Street, into which are also turned the waters of Piedmont Street and Austin Street brooks, and which empties into the natural channel of Mill Brook between Green Street and Cambridge Street, which channel discharges itself, together with the waters of the Austin Street and Piedmont Street brooks, and the sewage of this section of the city, into Mill Brook sewer above Cambridge Street. The Southbridge Street sewer and the Washington Street sewer are connected with other sewers which enter Mill Brook above Green Street only through Mill Brook sewer; the sewage from the Southbridge Street sewer and the Washington Street sewer entering the Mill Brook sewer through the natural channel of Mill Brook at a point above Cambridge Street, as above stated, while the sewers which enter Mill Brook sewer above Green Street are connected only through Mill Brook sewer. All the sewage of the city passes through these sewers into Mill Brook at points above Cambridge Street. The waters of Mill Brook and Blackstone River below Cambridge Street are polluted so as to occasion damage to the owners of water rights on said streams, by all the sewers, including the Washington Street sewer, and some of the owners have brought suits against the city, under the sewer act, for damages occasioned by the pollutions. These suits are now pending before the county commissioners. The natural channel of Mill Brook where it receives the Southbridge Street sewer is about 3000 feet from the point where the new channel diverges at Green Street. Part of the waters of the stream run in the new channel below Green Street, and part continue to run in the natural channel below that point. The natural channel of Mill Brook between Green Street and Cambridge Street is circuitous, making a large detour to the west. The new channel runs parallel with Millbury Street, and is nearly straight. Whenever, and if, all the waters of the stream shall be Butler v. Worcester. turned into the new channel at Green Street, it will become necessary to extend the Southbridge Street sewer, and connect it directly with the new channel. Before the passage of the act of 1867, c. 106, the city and town of Worcester had laid out and built public sewers in several of the streets, which sewers terminated and discharged into the brook at points above Green Street, and from time immemorial the stream has been used by the city and town and by the inhabitants for sewerage purposes, and numerous private drains have discharged into it. The natural channel of the brook between Green and Cambridge streets has never been laid out as, or become a sewer, unless the same results from the facts and proceedings herein stated. On the first Monday of January 1872, the city government of 1871 was succeeded by one in which the mayor and four of the aldermen were changed. No notice of the intention of the board to make an assessment was ever given except the notice referred to in the following order adopted by the mayor and aldermen December 8, 1871: "Ordered, that notice be given to all persons and parties ownng any real estate upon the streets in which said sewers and drains are laid [referring to streets named in the preamble of the order, Gold Street being one] or upon the line thereof, or whose real estate is benefited thereby, that this board intend to assess upon said owners their proportionate share of the expenditure of said city for said drains and sewers according to law, and the mayor and aldermen will meet in the city hall on the 19th day of December current, at 74 o'clock P. M., to hear any objections which may be made to such assessment." No hearing was ever had except one upon December 19, in pursuance of this notice, and afterwards it was determined "that a portion of the expense of the sewers be assessed upon the property specially benefited, and also that all the papers relating thereto be referred to the next board of aldermen." At a meeting of the mayor and aldermen held April 15, 1872, the committee on sewers on the part of the board, to whom the subject had been verbally referred, but not by any recorded vote, |