163 Mass. 303 | Mass. | 1895
1. The defendant contends that the town had no power to widen the drain or clear it from obstructions, because it was upon private land, and outside the limits of any highway. We cannot see how this fact makes any difference. Drains may be laid through private lands, as well as in highways. St. 1869, c. 111, § 1. Pub. Sts. c. 50, § 1. If a common drain runs through private land, the power and duty of the town to repair it are the same as if it were in a highway. Bates v. Westborough, 151 Mass. 174. Such power and duty might even be made to extend beyond the limits of the town. Commonwealth v. Newburyport, 103 Mass. 129. Carter v. Cambridge & Brookline Bridge, 104 Mass. 236. Coldwater v. Tucker, 36 Mich. 474. Dillon, Mun. Corp. (4th ed.) § 446.
2. The defendant further criticises the decision in Melrose v. Cutter, 159 Mass. 461, and contends that no power to repair this drain was given to the town by St. 1869, c. 378, and that the county commissioners alone had this power and duty, and could
3. It seems that the county commissioners, although they laid out the drain as twelve feet wide, actually built it at the place now in question only about eight feet wide; and the defendant contends that the town had no authority to enlarge it to the width of twelve feet. But the power to repair includes the power to make such enlargement, if reasonable and necessary for the purpose of proper drainage.
4. It was lawful for the town to take an agreement from the defendant for reimbursement of the cost of doing the work on his premises. Arlington v. Cutter, 114 Mass. 344. Springfield v. Harris, 107 Mass. 532. Dillon, Mun. Corp. (4th ed.) § 458, and cases cited. The defendant now contends that the agreement was obtained from him by fraud, or at least that there was evidence of fraud for the jury. But no such question is open upon the report. The nearest approach to raising a question of fraud was in the request for a ruling “ that the defendant’s request to do the work when he was under the impression that he was obliged to do it, not leaving it to his own volition, would not form a contract with the town.” This suggested no question of fraud. We may add, that we find in the report no evidence of fraud.
5. The defendant contends that the town did not authorize the selectmen to take an agreement from the defendant for reimbursement. The agreement was for the benefit of the town, and the bringing of the action upon it is sufficient evidence of an acceptance of it, and of a ratification of the act of the selectmen in taking it. See Arlington v. Cutter, 114 Mass. 344.
If the work done had been beyond the authority of the town, the question would still remain whether the defendant could avail himself of that ground of defence. This question we need not consider. Judgment on the verdict.