Waldron v. City of Haverhill

143 Mass. 582 | Mass. | 1887

C. Allen, 'J.

If a city or town, instead of leaving the duty ■ of keeping the highways in repair to be performed by the officers, and in the methods provided by the general laws, assumes to perform it by means of agents whom it may direct and control, it may be held responsible for the acts of those agents. The chief grounds of a town’s exemption from responsibility for the acts of surveyors of highways, as stated in Walcott v. Swampscott, 1 Allen, 101, and in later cases, are, that their powers and duties are prescribed and regulated by statute, and that, in the performance of these duties, they are independent of the town, and cannot be directed, or controlled, or removed from office by the town, and are not amenable to it for the manner in which they discharge the trust reposed in them by law; nor can the town exercise any right of selecting the servants or agents by whom surveyors shall perform their work. These reasons are not applicable to a case where a town performs the work by means of agents of its own. Hawks v. Charlemont, 107 Mass. 414. Deane v. Randolph, 132 Mass. 475. Sullivan v. Holyoke, 135 Mass. 273. Tindley v. Salem, 137 Mass. 171.

The present case falls within the latter class. By the city charter, the administration of all the fiscal, prudential, and municipal affairs of the city of Haverhill is vested in the city council. By the city ordinances, a superintendent of highways, removable at the pleasure of the city council, is to be chosen. He is to act under the direction of the committee on streets, ways, and sewers, which is a committee of the city council. Special provisions show more in detail his subordination to the city council, and to its committee. The work which caused the injury to the plaintiff’s property was done on land of the city, which land for a period of nearly three months was used exclusively for the preparation of materials for repairing the streets and highways of the city. There is nothing to show that this use of the city’s land was unauthorized. The contrary is to be assumed. Upon all the facts stated, the work in question appears to have been done by agents of the city, for whose acts and neglects in the performance thereof the city is responsible.

The case of Barney v. Lowell, 98 Mass. 570, was distinguished, on grounds equally applicable here, in Hawks v. Charlemont, ubi supra, by Chief Justice Chapman, who took part in the decision of both cases.

Exceptions sustained.