136 Mass. 119 | Mass. | 1883
The plaintiff contended, and argued to the jury, that the defendant, by its proper officers, could, and had the right, by means of barriers at the driveway, to prevent the flow of surface water from the church grounds on to the sidewalk where she claimed to have been injured.
The city was bound to keep the way in repair, so as to be reasonably safe and convenient for travellers. How far the surveyor of ways, or other officers, had a right to raise the sidewalk, or what barriers they had a right to erect, might have admitted of question; but we are unable to see any ground upon which the ruling made at the request of the defendant, apparently after the arguments were closed, “ that the city authorities had no right to prevent surface water from escaping to the highway from the land of an adjoining owner, where the highway had been laid out and the grade established by law,” can be sustained. No authority is cited to sustain it, and it is contrary to well-settled principles of law. Gannon v. Hargadon, 10 Allen, 106. Turner v. Dartmouth, 13 Allen, 291. Franklin v. Fisk, 13 Allen, 211. Emery v. Lowell, 104 Mass. 13. The grade of a street is not established with a view to enable adjoining proprietors to turn surface water upon it. And we are not aware that there is any difference in the rights of adjoining proprietors and city authorities as to surface water, whether the grade of a street has been established by law or not, except that a surveyor of ways, in making repairs, would be restricted within narrower limits on a street with a legally established grade, than on one the grade of which had not been established.
This ruling was likely to have misled the jury, as they would naturally infer that, if the city had no right to stop the flow of the water, it ought not to be held responsible for an injury caused by its flow and freezing.
Exceptions sustained.
