186 Mass. 540 | Mass. | 1904
In January, 1898, the street commissioners of Boston under the provisions of St. 1897, c. 426, authorized the relocation of the Oakland Garden branch of the Stony Brook
The conduit was not completed until about June 27, 1900. The upper part of it toward the park was built first, and the lower end of that part, near the plaintiff’s land, was left open and unconnected with any artificial means of carrying off the water which issued from it for more than a year before 1900, and for some months during the year 1900. The conduit was finished by building the lower portion of it in separate sections until all was completed, and not until then was the lower portion united with the section first constructed.
In June and September, 1899, and to a much greater extent in February and March, 1900, the waters collected by the upper section of the conduit, and so brought down to its open mouth, ran upon and caused damage to the plaintiff’s land by washing away the soil, tearing out the curbstones of his streets, filling-cellars, injuring foundation walls, and in other like ways.
This upper section of the conduit was built in the bed of a natural watercourse. No more water in the aggregate came down this upper section or left it at the lower end than came down the watercourse immediately before the conduit was built, and no greater area was drained by it than was drained by the old watercourse; but the water was so confined by the conduit that it came out from its open end in greater volume than ever before and with increased force, thereby causing the damage to the plaintiff’s land.
The writ is in tort and was sued out on January 3, 1903. There was a jury trial at which by agreement of counsel and direction of the presiding judge the liability of the defendant was tried upon certain facts relied upon by one party or the
The statute cited provides that the street commissioners may widen, deepen, pave or cover watercourses, or construct open sewers or conduits for the drainage of lands, and may take lands for those purposes, and that the superintendent of streets shall carry out the orders of the commissioners and do any' act or thing deemed by him necessary in constructing or maintaining the work. It also gives a remedy by petition for all damages sustained by the owner of any land, watercourse, right, or easement taken by the commissioners, or injured in any manner or ,by any person in doing any act or thing under the section of the statute which requires the superintendent of streets to carry out the orders of the commissioners and authorizes him to do anything deemed by him necessary in constructing or maintaining the works. See St. 1897, c. 426, §§ 2-5.
1. The defendant contends that it is not liable in this action because the conduit was built for the purpose of carrying away surface water from streets, and a town or city is not liable in tort if in performance of its duty to keep a highway safe and convenient for travel it diverts water upon neighboring land, citing Flagg v. Worcester, 13 Gray, 601, Holleran v. Boston, 176 Mass. 75, and numerous other like cases. But the provisions of St. 1897, c. 426, do much more than to enable the defendant to deal with surface water upon streets. The statute gives power to lay and construct works for the drainage of lands outside of streets, and such in great part was the work now in question. The doctrine invoked is not here applicable, the conduit having been laid and built to drain a large body of land mostly in private ownership.
2. The defendant also contends that even if the plaintiff’s damages were not the necessary result of the work ordered by
The defendant’s argument is that the temporary nature of the plaintiff’s damages would be no defence to a petition under § 5; Penney v. Commonwealth, 173 Mass. 507; that the damages are caused by some act or thing done by some person or persons under the provisions of § 4, and so are within the language of § 5; and that it is to be supposed that the Legislature, having in mind the inconvenience and injustice resulting from a doubtful or double remedy, has in this enactment provided for a single proceeding to cover injuries of every conceivable description.
We do not so construe the statute. The right of every landowner to recover by the usual processes of law for tortious damages to his land is important, and one which we cannot hold the Legislature to have taken away in any instance unless its language has no other reasonable meaning. In the absence of an explicit provision that the remedy by petition is to be exclusive, and is to extend to damages due to tortious and negligent acts done in carrying out the purposes of the statute, we hold that notwithstanding the very general language of § 5 the remedy for such acts is by action of tort and not by petition.
3. We think, however, that upon the facts which were before the court, whether the defendant was negligent in the construction of the conduit was a question of fact, rather than a question of law. It is true that the time was very long which elapsed between the building of the upper section and the providing of some suitable means for carrying away the water expected to be collected by it and discharged from its lower aperture. But there seems to have been no possibility of causing damage by so leaving that section of the conduit in ordinary stages of the flow, nor except in very unusual conditions of weather. Whether such conditions as those which caused the damage to the plaintiff in June and September of 1899 and in February and March of
So ordered.