Clark v. Inhabitants of Waltham

128 Mass. 567 | Mass. | 1880

Morton, J.

The plaintiff was injured while travelling upon a public park having footpaths across it, which, it is alleged, the defendant had negligently suffered to be out of repair and unsafe. The park was conveyed to the town upon the condition that it should “ forever after be kept open as and for a common for the use of said inhabitants of the town of Waltham.” By accepting the deeds of conveyance, the town agreed to the condition, and therefore holds the park for the use of the public. It had constructed footpaths and walks over the park in various directions, but these paths were not a part of the system of highways. They were not laid out as public ways, and the town is not liable under the statutes respecting highways or town-ways for any defect or want of repair which may exist in them. Oliver v. Worcester, 102 Mass. 489. Gould v. Boston, 120 Mass. 300. Nor can the town be held liable upon the ground that it negligently suffered a dangerous place to exist in the park, and failed to give proper notice to persons using the park by its invitation or license. It holds the park, not for its own profit or emolument, but for the direct and immediate use of the public. If it can be said that there is any duty in the town to construct paths ever it, or to keep such paths in repair, it is a corporate duty, imposed upon it as the representative and agent of the public and for the public benefit. For a breach of such a duty, a private action cannot be maintained against a town or city, unless such action is given by statute. Hill v. Boston, 122 Mass. 344, and cases cited.

But the plaintiff contends that this case is not within this general rule, but falls within the second decision in Oliver v. Worcester, above cited. This claim is not sustained by the facts of the case. It is true that a small portion of the land originally conveyed to the town, its northeast corner, is occupied by the Bumford Hall used in part as a town-hall for municipal purposes and occupied in part by the post-office and by stores for which the town receives rent. But this portion is not a part of the common. It is by the deeds excepted from the condition that the land is to be kept open as a common, and it is in fact separated from the common by a fence. The accident to the plaintiff happened in a part of the common remote from Rum-ford Hall, and had no connection whatever with the building or the fact that it was in part used for emolument or profit. The town might be liable, as a private individual would, for negligence in the management or the repairs of Rumford Hall, but this cannot make it liable for a defect in the common, which is entirely distinct, and is held by a different tenure and for a different purpose.

We are, therefore, of opinion that the Superior Court correctly ruled that the defendant was not liable.

Judgment for the defendant.