Bates v. Inhabitants of Westborough

• Decision Date: 27 February 1890
• Citation: 23 N.E. 1070,151 Mass. 174
• Parties: BATES et al. BATES v. INHABITANTS OF WESTBOROUGH. BATES v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 174

23 N.E. 1070

BATES et al. BATES v. INHABITANTS OF WESTBOROUGH. BATES v. SAME.

Supreme Judicial Court of Massachusetts, Worcester.

February 27, 1890

COUNSEL

W.S.B. Hopkins and J.E. Beeman, for plaintiffs.

F.P Goulding and W.T. Forbes, for defendant.

OPINION

HOLMES J.

These are two actions of tort, depending upon the same state of facts, to recover for the overflowing of the plaintiff's land with water from the defendant's drain, and set back in the plaintiff's drain. There was evidence tending to show the following facts, which we assume to be true, for the purposes of this decision.

The plaintiff had gained a prescriptive right to discharge water from his land by a drain to a culvert running under Brigham street, the Boston & Albany Railroad, and beyond; the water being carried from the further side, of late years, by a box drain.

There is a system of drains under different highways, converging into one, under Brigham street, which also discharges through the same culvert. Some at least of these drains, including that through Brigham street, were built by the defendant town, and belonged to it, and the town had a right to discharge through the culvert. The box drain on the other side of the culvert was built by the town upon land of one Smith, under a lease or license granted for a nominal sum. The lease expired more than six years before the date of the suit; but the box drain remained, and received the drainage as before, of which it was the necessary outlet. Smith did not object, but it seems had further negotiations with the town, which have resulted in the building of a new drain since these actions were brought.

The effect of the system of drainage was to bring down and to discharge through the culvert more water, and to discharge it more rapidly than otherwise would have been the case. Within six years before the date of the suits, the culvert had been filled up more or less, the box drain had failed at times to discharge the water freely, and the drain on the plaintiff's side of the culvert had become filled up. From some or all of these causes the plaintiff's land was flowed as alleged.

The plaintiff got verdicts under instructions allowing him to recover if the town had failed to use reasonable precautions in keeping the culverts free from obstructions, or had been guilty of negligence in maintaining a box drain of too small size, or in improperly constructing or negligently maintaining other drains that by themselves, or in connection with the culvert, made a faulty arrangement for disposing of the surface water, and thus had caused the damage.

These we believe, are the only facts needing mention. The plaintiff went to the jury on the eighth count alone, which made some of the defendant's requests for rulings immaterial, and we cannot adopt the defendant's construction of a further remark to the jury, upon which he bases an important part of his argument. The jury were told that, if they should find that not all the acts alleged in the eighth count operated to produce injury, but that some of them did, they could still find on that count in favor of the plaintiff. We think that this was not intended and could not have been understood to mean that any one act alleged would be sufficient, but simply reinforced what had been said already, and meant that less than all the acts alleged would be enough if the facts found by the jury satisfied the conditions of liability which had just been stated to them in detail.

If a private land-owner collects surface water into a definite, artificial channel, and discharges it upon his neighbor's land, he is liable to an action. White v. Chapin, 12 Allen, 516, 520; Curtis v. Railroad Co., 98 Mass. 428, 431; Rathke v. Gardner, 134 Mass. 14, 16; Jackman v. Arlington Mills, 137 Mass. 277, 283; Cassidy v. Railroad Co., 141 Mass. 174, 179, 5 N.E. 142. And, when the defendant would be liable for a direct discharge, we apprehend that he would be liable also if the water was reflected upon the plaintiff's land by an obstacle to its direct course, when that obstacle was set up by the defendant, or was negligently allowed to remain when he ought to remove it. We think, also, that it would not matter that some water would reach the obstacle if the defendant's drain were not there, provided the drain brings down more than otherwise would come, and causes the flooding of the plaintiff's land by this excess. Curtis v. Railroad Co., ubi supra. Again, the ordinary liability of a tort-feasor, who should stop a drain belonging to the plaintiff, would exist if he should stop that drain by causing an otherwise lawful discharge of water into the outlet of the plaintiff's drain, the water thus discharged acting as a dam or obstacle to the plaintiff's water.

A town has no prerogative to flood the lands or to stop the drains of other land-owners without paying for it, and, if it does so without authority of law, it is liable to an action of tort. Hill v. Boston, 122 Mass. 344, 358. See Hitchins v. Frostburg, 68 Md. 100, 11 Atl.Rep. 826. It is true that a town is not liable for interrupting the flow of surface water, or for discharging or throwing surface water upon adjoining land to a considerable extent, if not through a definite channel; but this is because no land-owner is liable for doing so. Emery v. Lowell, 104 Mass. 13, 16, 17, explaining Barry v. Lowell, 8 Allen, 128, and Turner v. Dartmouth, 13 Allen, 291. See Gannon v. Hargadon, 10 Allen, 106; Franklin v. Fisk, 13 Allen, 211; Bates v. Smith, 100 Mass. 181; Morrill v. Hurley, 120 Mass. 99. So a town is not liable to an action at common law for acts which are done under a statute, for instance in the repair of highways, or, it seems, in the construction of sewers, for which the statute provides a remedy by petition. Emery v. Lowell, ubi supra; explaining Flagg v. Worcester, 13 Gray, 601; Manning v. Lowell, 130 Mass. 21, 22; Nealley v. Bradford, 145 Mass. 561, 14 N.E. 652. See Hull v. Westfield, 133 Mass. 433; Perry v. Worcester, 6 Gray, 544; Benjamin v. Wheeler, 8 Gray, 409, and 15 Gray, 486.

But the case is different when a city or town has caused the plaintiff's land to be flowed in a way which would be actionable as against a private person, and which cannot be taken to have been contemplated by the statute under which it acts, or to have been paid for by the compensation allowed in respect of the original scheme. Thus, in the instance of sewers, it is settled that, if the plaintiff can prove that the injury was caused by the negligence of the city, either in the original construction of the sewer or in not keeping it free from obstructions, he may maintain an action against the city. Emery v. Lowell, 104 Mass. 13, 17; Merrifield v. Worcester, 110 Mass. 216, 221; Murphy v. Lowell, 124 Mass. 564; Tindley v. Salem, 137 Mass. 171, 172; Stanchfield v. Newton, 142 Mass. 110, 115, 7 N.E. 703; Child v. Boston, 4 Allen, 41, 52. So if, by a system of drains, a city artificially diverts surface water from its natural course, and accumulates it upon the plaintiff's land in such quantities as to create a private nuisance, it may be liable to an action. Manning v. Lowell, 130 Mass. 21, 25; Brayton v. Fall River, 113 Mass. 218, 226. So, if it negligently fails to keep a culvert under a highway in such condition as not to obstruct a natural stream. Parker v. Lowell, 11 Gray, 353.

Emery v. Lowell, and the cases following it, have reinforced the distinction established in Child v. Boston, that while no action lies for a defect or want of sufficiency in the plan or system of drainage adopted in the exercise of a quasi judicial discretion under powers specially conferred by statute, the duty of keeping the common sewers in repair and free from obstructions, after they have been constructed and have become the property of the city under such authority, is a ministerial duty, for neglect of which the city is liable to any person injured. The same is true of the duty actually to construct them with reasonable care and skill. And there is no difference in these duties, whether the city has acquired the right to maintain the sewer by prescription, or has laid it under the statute. See Gould v. Boston, 120 Mass. 300, 306; Phelps v. Mankato, 23 Minn. 276, 279; Bradbury v. Benton, 69 Me. 194.

It was not intended to overrule or to modify the well-settled rules which we have stated, by the decision in Kennison v Beverly, 146 Mass. 467, 16 N.E. 278. In that case the damage was caused by percolation from a catch-basin, which seems to have been incident only to an open gutter by the side of the highway. Assuming that there was evidence for the jury that there was such an artificial accumulation of water as to fall within White v. Chapin and Manning v. Lowell, and that the trouble was due to negligence in construction rather than to the plan adopted, still it may be that the town was not liable in the absence of such evidence that it did the work as was found in Deane v. Randolph, 132 Mass. 475, Waldron v. Haverhill, 143 Mass. 582, 10 N.E. 481; Doherty v. Braintree, 148 Mass. 495, 497, 20 N.E. 106. It may be that defects in such a catch-basin are to be regarded as defects in surface drainage within the limits of the highway, and therefore as defects in the repair of the highway, the charge of which is committed by statute to the...