Manners v. City of Haverhill

135 Mass. 165 | Mass. | 1883

Field, J.

The declaration contains three counts. These should have been answered separately; but no objection has been taken to the answer, on the ground that it purports to answer the whole declaration, as if it contained but one cause of action. The answer contains two paragraphs. The first paragraph denies that a part of the close described in the declaration is the soil and freehold of the plaintiff, and alleges “that the same is within the limits of a town way,” which it was the duty of the defendant to keep in repair; and that “ the plaintiff had erected on said way a wooden building obstructing said way,” which was a public nuisance; and that the “ defendant by its agents entered upon said way and removed said building.” This paragraph answers the first count only in part, does not describe the portion of the close which it alleges was a town way, and does not allege that the building removed was the same building, of the destruction of which the plaintiff complains. Standing alone, it would not have been a sufficient answer. The second paragraph denies that the defendant “ broke and entered the plaintiff’s close, and that it converted to its own use the goods and chattels of the plaintiff, as alleged in his writ.” The first clause of this second paragraph may therefore be taken to be a denial of the breach of the close alleged in the first count, and the last clause to be a denial of the conversion alleged in the second and third counts. The allegation in the first count, that the defendant “ tore down and destroyed a.certain wooden building thereon,” is matter of aggravation, and is not the gist of the action; this allegation was properly made, and if the defendant did not intend to admit it, it was its duty to deny it in the answer, or to allege its ignorance of it. Knapp v. Slocomb, 9 Gray, 73. This allegation is then admitted by the answer, even if it were not expressly admitted, because not denied. But to maintain the action on the first count, under the issue raised by the denial contained in the second paragraph of the answer, if that denial extends to the whole close described in the declaration, it was incumbent on the plaintiff to prove a forcible breach of the close by the defendant. An admission that it tore down and destroyed the building would not render such proof unnecessary. Knapp v. Slocomb, ubi supra. Phelps v. Morse, 9 Gray, 207. Merriam v. Willis, 10 Allen, 118. The defendant not only should have answered each count separately, but, in answering the first count, it should have described the part of the close, which it alleged was a town way, on which it entered, and should have denied that it broke or entered any part of the close except the part described as a town way. If the first paragraph had set out a good defence by itself, the admissions in that paragraph could not have been used as evidence on the trial of an issue raised by the second paragraph. Lyons v. Ward, 124 Mass. 364. Pub. Sts. c. 167, § 75. The second paragraph, considered apart from the first, except for the defect that it answers three counts as if they were but one, purports to set out a complete defence by itself; and as it denies that the defendant broke and entered the plaintiff’s close, as alleged in his writ, we think, if the defendant was permitted to go to trial under this answer, that it must be taken that this denial extends to the whole close. On this construction, it was open under the pleadings for the defendant to contend that the act of the superintendent of streets in forcibly entering with his men upon the close of the plaintiff, in pursuance of the vote of the board of aldermen, even if the act constituted a trespass by these persons, did not constitute a breaking and entering by the defendant. Haskell v. New Bedford, 108 Mass. 208, 212.

The plaintiff clearly was not estopped, by the deeds put in evidence by the defendant, from showing, as against the defendant, where the location of the way was. There was no privity of title between the plaintiff and the defendant. As the plaintiff relied upon a possessory title, the court rightly refused to rule “ that those deriving their title through Gubtal took no further than was conveyed to her by her deed from Smith.”

The statement in the exceptions that the defendant admitted an entry upon the close described in the declaration, by its agents, when considered in connection with other facts appearing in the exceptions, ought not to be held to conclude the defendant upon the question of law, whether the act of the superintendent of streets, an.d of the men under him, in entering upon the close of the plaintiff, pursuant to the vote of the board of aldermen, constituted a trespass for which the city is responsible.

This act does not appear to have been done under any vote of the city council of the city, or in reference to any property which the city claimed to own, or in the performance of any work which the city was specially authorized to do, or in which the city had a corporate interest distinct from that of the inhabitants generally of the Commonwealth, and the cases, cited by the plaintiff, of Thayer v. Boston, 19 Pick. 511, Hawks v. Charlemont, 107 Mass. 414, Gordon v. Taunton, 126 Mass. 349, and Deane v. Randolph, 132 Mass. 475, are not, strictly speaking, in point.

The mayor and aldermen of a city, if no other provisions are made in relation thereto, have the powers, and are subject to the liabilities, of selectmen; Pub. Sts. c. 28, § 2; and they, as well as the superintendent of streets of a city, in keeping the streets clear of obstructions, act as public officers, and for such acts the city is not liable. The fact that the superintendent and the men who acted under him were paid by the city is immaterial. Haskell v. New Bedford, 108 Mass. 208, 211. Barney v. Lowell, 98 Mass. 570. Hafford v. New Bedford, 16 Gray, 297. If such officers, in performing their duty of removing obstructions from the public ways, under the general laws of the Commonwealth, enter upon the land of an individual, under the mistaken belief that the land is a public way, the city is not liable for the trespass. Haskell v. New Bedford, ubi supra.

Exceptions sustained.