268 Mass. 185 | Mass. | 1929
This is an action of contract or tort to recover damages sustained by the plaintiff by the setting back upon his land of the waters of Mill Brook, a natural watercourse, caused by the alleged improper construction and maintenance by the defendant of a bridge over Mill Brook at a public highway in the defendant town known as the Cambridge Turnpike.
There was evidence tending to show that Mill Brook is a natural watercourse; that the plaintiff is an owner of land abutting thereon up the stream from the bridge; that prior to 1918 there had been an old wooden bridge carrying the highway across the brook and allowing the free passage of its waters; that in 1918 the defendant town at a legal meeting upon a sufficient article voted to appropriate money “to defray the cost of macadam pavement, under specifications approved by the Massachusetts Highway Commission” of the Cambridge Turnpike; that in the same year the county commissioners of Middlesex County, upon a petition by the defendant, directed that certain “specific repairs” be made
At the close of the evidence a verdict was directed in favor of the defendant on the ground that the defendant was not liable for the acts of those who built the bridge. By consent of the parties the question was reported for the determination of this court whether the evidence warranted the submission of the case to the jury on the point of the liability of the defendant.
There is nothing in the record showing explicitly whether Cambridge Turnpike is a town way, a county road, or a State highway. It is termed a “highway” in the report. This word connotes in some connections, and perhaps technically, a public way, original jurisdiction to lay out which is in the county commissioners, but in other connections it is used comprehensively to include all kinds of public ways. Boston & Albany Railroad v. Boston, 140 Mass 87. Since the county commissioners took jurisdiction to order specific repairs, it may be assumed that it was a county road and hence a highway in its strict signification.
There is in the record no vote of the town authorizing the selectmen in its name and behalf to execute the agreement with the Massachusetts highway commission to grade and construct the Cambridge Turnpike. It is recited in that agreement that it is executed by the defendant by its board of selectmen thereto duly authorized. Such recital in the absence of some statutory power or authorization by vote of the town is not evidence of authority. A town cannot be held liable on mere assertions of authority by those undertaking to act for it. Brown v. Newburyport, 209 Mass. 259. Franklin Savings Bank v. Framingham, 212 Mass. 92. Simpson v. Marlborough, 236 Mass. 210. Our attention has not been called to any provision of law or decision, and we are aware of none, upholding the power of the selectmen by virtue of their office to bind the town without vote to that end by a contract of this nature. The familiar rule as to the general presumption in favor of legality, Nevins v. City
There were imported into the order of the county commissioners by reference the terms of the contract with the Massachusetts highway commission. The legal effect of that reference was nothing more than to afford a particular description of the work to be done and to avoid setting it out at length in their order. No vitality or validity was given thereby to the contract between the selectmen of the defendant and the Massachusetts highway commission. No law confers upon the county commissioners any supervisory jurisdiction over contracts made by selectmen. It is recited in that contract that it relates to “the improvement of a section of road in said town under the provisions of Chapter 525 of the Acts of 1910 as amended.” St. 1917, c. 276. See now G. L. c. 90, § 34, as amended by St. 1928, c. 316, § 6. It was thereby provided that the expenditure of money of the Commonwealth for highway improvement, such as is described in the contract, might be made where the selectmen of the town apply therefor by petition in writing. That statute, however, does not authorize the selectmen to contract to do the work in the name of the town without any vote of the town empowering them to make such contract. The contract here in issue was not an application or petition for the expenditure of money of the Commonwealth, although provision was made that a sum not exceeding 83,000 should be paid to the town by the Commonwealth upon the completion of the work.
The result is that it cannot be held that the contract made in the name of the town by the selectmen with the Massachusetts highway commission binds the defendant. It becomes unnecessary to discuss cases like Lawrence v. Fairhaven, 5 Gray, 110; Perry v. Worcester, 6 Gray, 544; Sprague
The order of the county commissioners for the work to be done on Cambridge Turnpike, as shown by the agreement between the Massachusetts highway commission and the defendant acting by its board of selectmen, including the construction of the new bridge, described that work as “specific repairs.” We. assume that it was correctly so described. St. 1917, c. 344, Part 2, §§ 10, 12, now G. L. c. 82, § 10. It was not an alteration, a relocation, or a new layout. Bigelow v. Worcester, 169 Mass. 390, 393. It is not necessary to inquire whether it would have been competent for the defendant town by special vote to determine that specific repairs should be made by public officers or by contract or by private agents. Twombly v. Selectmen of Billerica, 262 Mass. 214, 219. No action of this nature was taken so far as shown by the report. In the absence of such special vote, after the appropriation had been made, it became the duty of the road commissioners to do the work required by the order of the county commissioners. St. 1917, c. 344, Part 4, § 12; now G. L. c. 41, § 64.
Road commissioners, in performing the duties imposed upon them by the statutes or for the general welfare, act as public officers and not as agents of the town. McManus v. Weston, 164 Mass. 263. Jensen v. Waltham, 166 Mass. 344. Butman v. Newton, 179 Mass. 1, 5, 6, 7. Smith v. Gloucester, 201 Mass. 329, 333. Johnson v. Somerville, 195 Mass. 370. Dupuis v. Fall River, 223 Mass. 73. See Bolster v. Lawrence, 225 Mass. 387, 389. Saperstein v. Everett, 265 Mass. 195, 198.
The specific repairs in construction of the bridge were on this record done under the supervision of the superintendent of streets, roads and bridges appointed by the road commissioners of the defendant town. They thus were done by public officers pursuant to a public duty imposed by law. They were made in accordance with plans of engineers of the Massachusetts highway commission. They constituted a work undertaken for the general welfare. The defendant
It becomes unnecessary to inquire whether there was evidence to fasten upon the bridge the cause of the damage to the plaintiff. In conformity to the terms of the report the entry may be
Judgment on the verdict.