229 Mass. 563 | Mass. | 1918
The plaintiff is the owner of real estate on the westerly side of Waverly Street in Stoneham. High Street is north of the plaintiff’s land. To the north and east of her property there is a rising grade for a distance of one half to three quarters of a mile; and a brook, flowing in a westerly direction through the lands of various owners into a culvert under Waverly Street, enters the plaintiff’s premises. Originally, the street drainage from Waverly and High Streets was carried through gutters on both sides of Waverly Street past the plaintiff’s estate to another brook on Elm Street. In 1907 openings were made in the culvert through which the brook flows under Waverly Street and iron gratings were placed in the gutters which turned the water into the culvert. This action is for damages caused by the diversion of the surface water causing the brook to overflow its banks, fill up the pond on the plaintiff’s land and in other ways injure her property.
We must assume from the agreed statement of facts and the evidence, that the work of opening the culvert and placing the
An officer charged with the duties of a surveyor of highways is a public officer, and not an agent of the town. In diverting the surface water from Waverly Street into the culvert, he was doing a public work and was in the performance of his duty in keeping the street reasonably safe and convenient for travel. He was not an agent, employee or officer of the town in doing this work, the relation of principal and agent did not exist between him and the defendant, — he was executing a public duty as a public officer, — and for his acts the town is not responsible. Dupuis v. Fall River, 223 Mass. 73, and cases cited.
An action of tort at common law will not lie against a city or town for diverting.the surface water from its streets in order to keep them safe, and causing it to flow upon adjoining premises, even when the surface water is drained into a culvert or watercourse. The remedy is under the statute. R. L. c. 51, § 15, now St. 1917, c. 344, Part IV, § 21. Woodbury v. Beverly, 153 Mass. 245. Brainard v. Newton, 154 Mass. 255. Holleran v. Boston, 176 Mass. 75.
It does not appear that the town ever took any action with respect to the gutters, the culvert or the catch-basins; and no vote specifically authorizing their installation appears in the town records. See Smith v. Gloucester, 201 Mass. 329; Dupuis v. Fall River, supra; Lead Line Iron Pipe Co. v. Wakefield, 223 Mass. 485; Bolster v. Lawrence, 225 Mass. 387, 389, 390. The town did not assume to perform the work by means of its agents, as in Waldron v. Haverhill, 143 Mass. 582, Butman v. Newton, 179 Mass. 1, and the construction of the gutter and catch basins for the drainage of surface water into the brook, did not make it a sewer or drain under R. L. c. 49. Cases like Bates v. Westborough, 151 Mass. 174, and Diamond v. North Attleborough, 219 Mass. 587, are not applicable.
According to the terms of the report, judgment is to be entered for the defendant.
So ordered.