123 Mass. 311 | Mass. | 1877
This action is brought against the city of Worcester to recover damages suffered by the destruction of the plaintiff’s mill by an accidental fire in consequence of the neglect of the city to maintain a hydrant by which the fire might have been extinguished. The declaration is in several counts, and no objection is made to its form, provided the plaintiff is entitled to maintain any action against the city upon the evidence stated in the bill of exceptions.
The protection of all the buildings in a city or town from destruction or injury by fire is for the benefit of all the inhabitants and for their relief from a common danger; and cities and towns are therefore authorized by general laws to provide and maintain fire engines, reservoirs and hydrants to supply water for the extinguishment of fires. Allen v. Taunton, 19 Pick. 485. Hardy v. Waltham, 3 Met. 163. Fisher v. Boston, 104 Mass. 87, 93. The Worcester Water Act, St. 1864, c. 104, § 3, authorizes the city to make and maintain reservoirs and public hydrants “ in such places as may be deemed proper.” This evidently means “ as may be deemed proper by the city or its officers or agents ” — just as the St. 1867, e. 158, authorizes the selectmen of towns, for the protection of persons and property therein against fire, to order conductors to be put into the pipes of aque-' duct corporations, for the purpose of attaching hydrants or conducting water into reservoirs, and in such places as the engineers of the fire department shall think necessary. The works co be constructed by the city of Worcester, under the St. of 1864, were, so far as related to safeguards against fire, to be erected and maintained by the city for the benefit of the public and without pecuniary compensation or emolument. The questions whether and where public hydrants should be erected were within the exclusive discretion and control of the municipal authorities, as the public interest might seem to them from time
The judgment of the Court of Exchequer in Atkinson v. Newcastle Waterworks, L. R. 6 Ex. 404, much relied on by the plaintiff, in which an action was maintained against a water company for not keeping pipes, in which fire plugs were fixed, charged with water at a certain pressure, as required by its act of incorporation, whereby the plaintiff’s property was destroyed, has been reversed in the Court of Appeal, by Lord Chancellor Cairns, Chief Justice Cockburn and Lord Justice Brett. 2 Ex. D. 441. In Metallic Compression Co. v. Fitchburg Railroad, 109 Mass. 277, the action was not against the city for neglect to furnish proper means to extinguish fires, but against a third party for unlawfully cutting a hose while actually being used to put out a fire; and the decision of the Court of Exchequer in Atkinson v. Newcastle Waterworks was cited only to the point that the act of the defendant was the direct and efficient cause of the injury.
For the reasons already stated, the plaintiff has no right of action against the city, by reason of any duty imposed or liabil ity assumed under the St. of 1864, for neglecting to maintain the hydrant, or for cutting off its supply of water. And she cannot sue the city' upon the alleged agreement of the committee, because the authority to purchase the plaintiff’s pipe did not authorize them to agree in behalf of the city to maintain a hydrant, or to supply it with water, and there is no other evidence of any authority from the city to make such an agreement, or of any knowledge on the part of the city that such an agreement had been made. Palmer v. Haverhill, 98 Mass. 487.
Exception* overruled.
