The opinion
Holmes, J.
The petitioner seeks to recover for the temporary drying up of its pond caused by the work of constructing a part of the metropolitan sewer in a public highway. After the work was finished, the water returned to the pond. The statutes under which the work was done and the damages are claimed are *353 St. 1889, c. 439, and St. 1890, c. 270. By § 1 of the latter act, amending § 4 of the former, the Commonwealth is to pay “ all damages that shall be sustained by any person or corporation by reason of such taking or entering as aforesaid.” The entering referred to is the entering of existing sewers as authorized earlier in the section. With that we have nothing to do in this case. The petitioner’s case must stand on the word “taking.” But as the sewer was built under a highway, and as the board of sewerage commissioners only purported to take “ the right to carry and conduct under the following described lands [viz. the highway], and therein to construct, operate, and forever maintain an underground main sewer,” etc., no additional servitude was imposed upon the land under the highway. Lincoln v. Commonwealth, ante, 1. No right of any sort was taken in the petitioner’s land.
But we do not need to decide that no damages can be recovered in any case under this act where property not taken in terms is injured in a permanent manner. The question is one of construction, and may be left open until it is necessary to decide it. It is enough to say that it is not disposed of by any authority which has been called to our attention. There are further considerations in the case at bar. So far as appears, nothing has been done which would have been actionable if no statute had been passed. It is true that some statutes have been interpreted as giving damages for harm for which no action could have been maintained at common law. But the fact mentioned is a circumstance to be considered. The damage in this case not only would have been damnum absque injuria at common law, but it was temporary in its nature. It is not a permanent consequence of maintaining the sewer, but was merely a temporary interruption caused by the work upon it. Whatever latitude may be given to the statute, it does not extend to damages of this sort. As has been held in Lincoln v. Commonwealth, decided since the argument, such temporary damage is left by the statute to lie where it falls. See Bacon v. Boston, 154 Mass. 100 . It follows that, in the opinion of a majority of the court, judgment must be for the respondent.
Judgment for the respondent.