152 Mass. 365 | Mass. | 1890
The answers of the jury to the first, second, and fourth questions put to them show that the culvert was sufficient to discharge all the water of the brook in its natural condition, even in times of extraordinary freshets, and that it was insufficient to carry off all the water that came to it in the flood of 1886 only in consequence of the increased flow of water caused by the changes in the stream made by the county commissioners under the St. of 1869, c. 378. The culvert was made in 1844. The changes made by the county commissioners, consisting of removing a dam and other obstructions, and straightening and widening the bed of the brook and its tributaries, were ordered in 1871, and were completed and established in 1875. These changes increased by artificial means the flow of water in the brook, and the culvert was inadequate to discharge the water of the extraordinary flood of 1886, but would have
Spot Pond Bi’ook ran from Spot Pond in Stoneham to tide water in Malden. Ell Pond Brook, an outlet of Ell Pond in Melrose, was a tributary to it, and below the junction the brook crossed Pleasant Street by the culvert in question.
The St. of 1869, c. 378, gave the control of the ponds, and the streams or brooks running from them to tide water, to the county commissioners for purposes of drainage and the public health, and authorized them to “ change, widen, straighten, and deepen the channels of said brooks or streams ... in such manner as they shall deem necessary for the purposes aforesaid.” Under this authority, the commissioners, among other things, ordered “ that the streams or brooks named in said act of 1869 should be located and their courses and widths described,” and they were accordingly located, and widened, straightened, and excavated, under an agent appointed by the commissioners, and his report of his doings and of the location of the brooks and streams and drains was adopted, the courses, distances, and widths being given. Spot Pond Brook was located twelve feet in width. No change was made in the culvert by the commissioners, and it was stated at the argument that no changes were actually made in the brook below Pleasant Street, although that part of the brook was included in the location. It was the changes made in the brooks above Pleasant Street that brought the increased quantity of water to the culvert in times of freshet, and the question is whether it was the duty of the town to enlarge the culvert to meet the artificially changed condition of the brook.
It is very clear that the town was not obliged to provide a passage across the highway for water brought artificially to it by riparian proprietors on the stream above, whether brought by a separate channel or mingled with the natural waters of the stream, nor to provide for occasional unnatural volumes of water caused by artificial changes in the channel of the stream by such proprietors. The duty of the town to the plaintiff was so to
In this ease the change in the stream above the culvert was not made by the proprietors upon it, but by express authority of the Legislature, and for the public good; and the argument is that the duty of the town to make its public ways conform to such a change is implied. If the action of the Legislature had been only to improve the channel of the brook above the culvert, excluding that, and the manifest effect of the improvement provided for had been to render the culvert insufficient, the argument would deserve serious attention. But jurisdiction over the culvert was given to the county commissioners, and they were directed to lay out such watercourses on or adjoining the brook from the pond to tide water as they should deem necessary, and they exercised the authority given to them over the brook. The petition upon which they acted, as stated in their decree, was for removing obstructions in the stream from Spot Pond to tide water. The object of the statute was to utilize the brooks for drainage into tide water, and the commissioners established a system of drainage which included the culvert in question. It is immaterial if the courses and distances of the drains located did not include the culvert, or if they did no work upon the channel below the culvert. Whatever they did was for the purpose of securing a more free and unobstructed flow of the stream to tide water, and if they made no change in any part of it, the reason must have been that they deemed such part sufficient. It was for them, and not for the town, to determine upon the sufficiency of the culvert as a part of their system of drainage.
Exceptions sustained.
