290 Mass. 356 | Mass. | 1935
These cases were argued together. The first
The plaintiffs owned adjoining parcels of land on Massachusetts Avenue, a public way in the defendant town. While the report was pending they plugged the drain causing surface water to back up on the avenue, which endangered travel. Employees of the town sought to relieve this condition. The plaintiffs sought to enjoin the town from entering upon their lands and discharging drainage thereon, by a bill in equity filed in the Superior Court, and on a prayer for a temporary injunction an order of notice was issued. The answer of the defendant contained a counterclaim praying for a temporary injunction enjoining the plaintiffs from plugging the drain and thereby flooding the street until the rights of the parties should be determined. The case was heard in the Superior Court on the parties’ applications for temporary injunctions. At the close of the hearing the judge stated that he would deny the plaintiffs’ application, and that he was inclined to grant the defendant’s application, but no decree was entered. The plaintiffs’ attorney then stated that he would with
In the action at law the Appellate Division reversed the findings of the trial judge for the plaintiff Justin Shea under the first count of the declaration, and for the plaintiff Donald Shea under the second count, and ordered judgment for the defendant on both counts of the declaration. From this order the plaintiffs appealed.
1. The first count of the declaration in the action at law will first be considered. The lands owned by the plaintiffs respectively are located on Massachusetts Avenue in East Lexington, in the defendant town, and consist of four parcels, lots C and B abutting on the avenue, lot A in the rear of these lots, and the Frizelle lot, so called, abutting on the avenue and adjoining lot B. All the lots are situated on the northerly slope of a hill, the apex of which is on the southerly sidp of the avenue opposite the land in question. The plaintiff' Donald Shea took title in 1926 to lots A, B and C. In 1928 the plaintiff Justin Shea purchased the Frizelle lot. Prior to 1902, in front of the Frizelle lot a stone drain, connected with a catch basin at each end, crossed Massachusetts Avenue, which drain extended under the sidewalk and three or four feet into the Frizelle lot. In 1902, the avenue was widened and relocated by the county commissioners, and a taking was made in front of the locus for widening and general drainage purposes. The construction work in connection with the relocation was done by a contractor employed by the Lexington and Boston Street Railway Company, which had been granted a location for its tracks in the avenue. At this time the old stone drain was removed, and a new drain was constructed for a distance of
White testified that from time to time his department did work on the Frizelle drain and that he got his directions from the selectmen; that before doing work on the plaintiffs’ land he had talked with the selectmen; that he remembered talking with one Spaulding who was at that time a selectman but who is now dead; that he did not remember talking with any other member of the board, and was unable to remember that the men with whom he talked told him in what capacity they were acting; that he remembered that there were at one time surveyors of highways in Lexington; and that he remembered talking with them about different work, but did not recall the exact time when the town ceased to have surveyors of highways.
The most that this evidence shows is that the selectmen and surveyors of highways were the same persons at the time the work in question was done; that the records of the selectmen, which were the same as those of the surveyors of highways, show the appointment of White as superintendent of streets; that White said he got his directions for doing the work from the selectmen; and that he was unable to remember that the men with whom he talked told him in what capacity they were acting. There was therefore nothing upon which to base a finding as to the capacity in which the men were acting when they gave White his orders. Malinoski v. D. S. McGrath, Inc. 283 Mass. 1, 10. The same persons were elected selectmen and surveyors of highways at the time the drain was constructed in 1916. Surveyors of highways at that time had the exclusive control of the ordinary repair and care of highways. R. L. c. 25, § 81 (G. L. [Ter. Ed.] c. 41, § 62). See Twombly v. Selectmen of Billerica, 262 Mass. 214, 217,
2. The second count of the declaration was to recover for damage to the property of the plaintiffs alleged to have been caused by water diverted thereon. The judge found that “In 1916 the drainage of surface water flowing through this drain, while harmful to the property and in violation of the legal rights of the then owners, did not continuously seriously' interfere with their enjoyment thereof. There were times when excessive drainage would temporarily interfere with the enjoyment of the property; but during the greater part of the year the land was still useable and could be traversed on foot or on horseback without danger of sinking into it because of its wet condition. In 1923 the defendant resurfaced a street [Oak Street] . . . running in part from the apex of the hill down to Massachusetts Avenue at a point almost directly opposite the Frizelle property. In the course of surfacing this street, the defendant constructed open stone drains on each side of the street, each of which carried the surface water from the street to two catch basins . . . said catch basins were in turn connected with [other] catch basins . . . which were in turn connected with the manhole in front of the
I of highways relative to public ways . . . .” G. L. c. 41, § 64. Acting as such they are public officers and not agents of the town. Clark v. Easton, 146 Mass. 43. Wood v. Concord, 268 Mass. 185, 190, and cases cited. It is plain that in the absence of evidence that the construction of these drains and the discharge of water were caused by the acts of individuals acting as agents of and for the town, there can be no liability imposed upon it for any damage caused thereby. Malinoski v. D. S. McGrath, Inc. 283 Mass. 1, 10. There was no evidence that the original drain, which discharged water on the locus, was constructed by agents of the town. The drain constructed in 1902 was not placed there by agents of the defendant. The drain laid by White in 1916 was, upon a reasonable construction of the evidence and the inferences properly drawn therefrom, placed there by him acting as the agent of public officers and not as the agent of the town. The reconstruction and repair of Oak Street likewise were performed by him acting for public officers. Agency for the town has not been proved in any case. As the drain laid in 1916 was originally constructed by public officers or their agents, and the additional flowage of water upon the plaintiffs’ lands was brought about by the acts of public officers or their agents, there is no liability on the part of the town in this action. Smith v. Gloucester, 201 Mass. 329. Dupuis v. Fall River, 223 Mass. 73, and cases cited. Malinoski v. D. S. McGrath, Inc. 283 Mass. 1, 9. In Blaisdell v. Stone-ham, 229 Mass. 563, it was said at page 565: “An officer charged with the duties of a surveyor of highways is a public officer, and not an agent of the town. . . . An action of tort at common law will not lie against a city or town for diverting the surface water from its streets in order to keep them safe, and causing it to flow upon adjoining
3. The suit in equity was brought by the same plaintiffs as are named in the action at law against the town of Lexington. This suit was brought in the Superior Court before the action at law had been decided by the Appellate ■ Division. In the suit in equity the plaintiffs seek to enjoin the town of Lexington and its servants and workmen from trespassing upon the lands of the plaintiffs and from discharging surface water thereon; and seek damages. The defendant included in its answer a counterclaim asking that the plaintiffs be enjoined from plugging the pipe and flooding the street until the rights of the parties as to the disposal of this surface water should be finally determined. The parties were heard by a judge on the question, of the issuance of a temporary injunction. At the end of that hearing the judge stated that he would deny the plaintiffs’ application for a temporary injunction and was inclined to grant the defendant’s application for a tern
It is the contention of the defendant that the plaintiffs were not entitled to have the bill dismissed since the defendant had acquired rights by filing a counterclaim. It is a general rule that the court will dismiss a bill with costs on the plaintiff’s motion, unless something has been done in the case which entitles the defendant, on equitable grounds, to have the cause finally disposed of on the merits. If there has been a decree or other proceeding whereby the defendant’s position has been changed, and he has acquired rights which did not exist or had not been determined when the suit was brought, and it is equitable that these rights should be fully secured by further proceedings in the case,- the judge will retain the cause for a decision on the merits. The action to be taken depends upon whether anything has been done by the court or the parties that has changed the position in which the parties were when the suit was begun. Something more than the incidental annoyance of a second suit for the same cause is required to prevent a decree allowing a dismissal without prejudice on payment of the defendant’s costs. The plaintiff is allowed to have his bill dismissed on the assumption that it leaves the defendant where he stood if the suit had not been instituted, and there must be some manifest legal prejudice to the defendant’s rights to warrant a denial of the motion to dismiss. If the defendant has acquired some right which might be lost or rendered less efficient by the dismissal, then the judge in the exercise of a sound discretion may deny the motion. Hollings
In the action at law the entry will be order of Appellate Division affirmed. In the suit in equity the entry will be exceptions sustained; decree reversed.
Ordered accordingly.