Murphy v. City of Lowell

124 Mass. 564 | Mass. | 1878

Gray, G. J.

By the present charter of the city of Lowell, it is provided that “ the board of aldermen shall have the power, whenever they shall adjudge it to be necessary for the public convenience or the public health, to cause main drains or common sewers to be laid through any street or private lands, and may repair the same whenever necessary, and shall pay the owners of such lands such damages as they may sustain by the laying or repairing of said main drains or common sewers ; and all such main drains or common sewers shall be the property of the city; ” and that all the existing ordinances of the city shall continue in force until repealed by the city council. St. 1875, c. 173, §§ 27, 36.

Those ordinances provide that “ the superintendent of streets, under the direction of the board of aldermen, shall superintend the building of all common sewers and drains that may be built under the authority of said board, and shall, under the direction of the committee on sewers, make all contracts for labor and materials therefor, shall report to the auditor of accounts the names of all persons liable to be assessed for the expense of constructing or repairing sewers or drains, and shall keep a record of all his proceedings; ” and that a portion, not exceeding one half, of the expense of constructing any main drain or common sewer “shall be assessed by the board of aldermen upon every person who enters his particular drain into such main drain or common sewer, or who by more remote means receives benefit thereby for draining his cellar or land.” Ordinances^ of Lowell, fed. 1876,) 68, lloT

The powers thus conferred by the charter and ordinances upon the board of aldermen of Lowell accord with the general laws of the Commonwealth. St. 1869, o. 111. Gen. Sts. c. 48, § 4. The case is governed by the decisions of this court, by which it is settled that in the ministerial duty of constructing sewers, which become the property of the city, and the expense of constructing which may be assessed upon the lands immediately benefited, the board of aldermen act as agents of the city, and the city is liable for any neglect in the course of construction by which an injury is caused to person or property. Child v. Boston, 4 Allen, 41. Emery v. Lowell, 104 Mass. 13. Hill v. Boston, 122 Mass. 344, 358, 359, 365, 374, 375.

Verdicts set aside.