1. There is no doubt but that an action of tort may be maintained against a town or city to recover damages for a trespass committed by any of its agents or officers acting under its authority, or in pursuance of directions given them, upon the property or estate of another party. This is the settled and established law of this commonwealth, as is clearly shown by the decisions of this court in the several cases cited by the *350counsel of the plaintiff. And therefore, since it is admitted by the defendants that they built and still maintain their Ocommon drain upon and through his lands as is alleged in the declaration, he has a good cause of action, and ought to prevail against them, unless the defence upon which they rely exhibits a good and legal justification of the acts complained of.
2. They rely upon the proceedings of the city council in laying out and establishing a drain or common sewer, which extends through and under certain public streets in the city, and in and through land belonging to the plaintiff, over which there is a private way. The plaintiff objects that they cannot avail themselves of this defence, because the facts are not specified and set forth in their answer, in clear and precise terms, according to the requirements of the St. of 1852, c. 312, § 18. But upon recurring to the allegations in the answer, it is very clear that there is no ground for this objection ; for it is there expressly stated, as a special and distinct matter of defence, that the city council in the year 1849, by a resolution duly adopted, laid out according to law a drain from the rear of the Museum Building through a passage way there situate to Merrimack Street. This is the same drain of the building and maintaining of which the plaintiff complains, and the passage way referred to over and upon that part of his land where he alleges that trespass was committed. It would be difficult to express the matter relied upon in avoidance of the action in terms more direct and explicit than these; and. the defendants may therefore avail themselves of it in defence.
3. The plaintiff next contends that the proceedings above de» scribed of the city council were so irregular and illegal that they must necessarily be held to be inoperative and void.
The act incorporating the city of Lowell authorizes and empowers the city council to cause drains and common sewers to be laid through any of its streets, and through private lands, upon the payment to the owners thereof the damages which they sustain thereby. St. 1836, c. 129, § 9. The purpose of the legislature in the enactment of this provision is very plain. It was to place in possession of the city council the means of abating nuisances *351offensive to the community and dangerous to the health of the people. The objects therefore to be accomplished by the exercise of the power it confers are so obviously connected with means to be adopted for the promotion of the general welfare of the community, and in which all citizens have a common interest, that the suggestion of a want of constitutional power in the legislature for its enactment seems to be entirely without foundation.
4. The city council, considering, and rightly considering, it to be a perfectly valid enactment, proceeded, by the establishment and adoption of suitable by-laws and ordinances, to determine the manner and circumstances in and under which it might be availed' of. By these ordinances it was provided and directed that before a drain or common sewer should be located or established through private lands, notice in writing should be given to the owners of the land through which it should be laid. City Ordinances, c. 22, § 8; c. 15, § 1. And the plaintiff contends that the location of the drain through his land was illegal, because notice was not given according to the requirements of the ordinance to those persons to whom it ai that time belonged. But in addition to the delivery of copies of the notice to various individuals in person and to others at their respective places of abode, public notice was given by posting up one copy thereof at the city hall and another at the post-office. This was a sufficient compliance with the directions of the ordinance in relation to all the owners of land, where they were non-residents or unknown to the officers of the city. It did not appear at the trial to whom the land now owned by the plaintiff did in fact belong when the proceedings relative to the location of the drain took place, or that any of the officers of the city had knowledge of the existing state of the title therein. The premises were at one time the property of the Freewill Baptist Meeting-house. It is obvious however that there were difficulties in ascertaining or determining who were subsequently the rightful owners of the land. One conveyance, certainly, was made under such circumstances that it was afterwards declared to be illegal and void, *352and different parties preferred their respective claims to the estate. And it was undoubtedly this difficulty which induced the committee, to whom the petition for a drain had been referred, to give public notice to all persons interested of the intended action of the city in the location of it, by causing the substance of the petition to be printed in certain newspapers there published, and by causing also copies of the notice to be posted at the post-office and at the city hall, as is stated in the return of the constable. In the then existing uncertainty concerning the ownership, such public notice to all persons interested seems to be the only safe and effectual, and indeed the only practicable means by which the proprietors of the land could have been apprised of the intended action of the city authorities in the location of the drain. The proceedings of the city council are not therefore invalidated by any failure to give all requisite notice to the owners of land over and through which the drain was laid.
5. Nor does any such consequence result from the omission of the committee to award compensation to such owners, or to give their names, or report that they were unknown, or to state that there was any action upon the question of damages. They did in fact report that at the proposed time and place the committee attended, and heard all persons interested in the premises, who then appeared and expressed a desire to be heard. And they add that no person appeared to object to the laying out and building the sewer as petitioned for; but that several of the abutters appeared and advocated the necessity of its construction. It would have been more correct and regular to have added the names of the several owners of the land through which the drain was to be constructed, and to have stated the reasons why no damages were awarded to any of them. It may be that they all waived their respective claims to compensation ; and if they did so, they would afterwards be precluded from setting up any; and there was consequently no occasion for any assignment or award of damages. But if there was no such waiver, then the omission to mention the name of the owner, or to state whether damages were or were not awarded *353to him, was, so far as he was concerned, equivalent to an express adjudication that he' was entitled to no damages. And he would in that case have been at liberty to pursue the further remedies provided by law for his relief and remuneration. He might immediately have applied for a jury to revise the proceedings in reference to the injury done to his property, and to assess the damages to which he was entitled. Eaton v. County Commissioners, 7 Gray, 109. Thus all his rights were as effectually protected by the omission to mention his name or the subject of damages, as if it had been in terms stated that the committee had formally adjudged that he was in no way injured and ought to recover no compensation.
These are the principal objections argued against the legality of the action of the city council in the location of the drain from the street in the rear of the museum through the passage way and land of the plaintiff to the sewer on Merrimack Street. There are some others of minor importance, which have been suggested by the counsel for the plaintiff. But without entering upon any further discussion in relation to any of his objections, we think it sufficient to say, that none of them can in our opinion be sustained upon any sound legal principle; and therefore there must be
Judgment on the verdict for the defendants.