Blaisdell v. Inhabitants of Town of Stoneham

• Decision Date: 04 March 1918
• Citation: 118 N.E. 919,229 Mass. 563
• Parties: BLAISDELL v. INHABITANTS OF TOWN OF STONEHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 563

118 N.E. 919

BLAISDELL

v.INHABITANTS OF TOWN OF STONEHAM.

Supreme Judicial Court of Massachusetts, Middlesex.

March 4, 1918.

Exceptions from Superior Court, Middlesex County; Franklin G. Fessenden, Judge.

Action by Alice L. Blaisdell against the Inhabitants of the Town of Stoneham. Verdict for defendant, and plaintiff excepts. Judgment ordered for defendant.Whipple, Sears & Ogden, of Boston, for plaintiff.

H. H. Richardson, of Stoneham, for defendant.

CARROLL, J.

The plaintiff is the owner of real estate on the westerly side of Waverly Street in Stoneham. High Street is north of the plaintiff's land. To the north and east of her property there is a rising grade for a distance of one-half to three quarters of a mile; and a brook, flowing in a westerly direction through the lands of various owners into a culvert under Waverly Street, enters the plaintiff's premises. Originally, the street drainage from Waverly and High Streets was carried through gutters on both sides of Waverly Street past the plaintiff's estate to another brook on Elm Street. In 1907 openings were made in the culvert through which the brook flows under Waverly Street and iron gratings were placed in the gutters which turned the water into the culvert. This action is for damages caused by the diversion of the surface water causing the brook to overflow its banks, fill up the pond on the plaintiff's land, and in other ways injure her property.

We must assume from the agreed statement of facts and the evidence that the work of opening the culvert and locating the catch-basins or gratings was done by, or by the authority of, the board of public works of Stoneham (St. 1902, c. 263); which board had the care of highways, drains and catch-basins, with the powers and duties of surveyors of highways (R. L. c. 25, §§ 85, 86).

An officer charged with the duties of a surveyor of highways is a public officer, and not an agent of the town. In diverting the surface water from Waverly Street into the culvert, he was doing a public work and was in the performance of his duty in keeping the street reasonably safe and convenient for travel. He was not an agent, employé or officer of the town in doing this work, the relation of principal and agent did not exist between him and the defendant-he was execution a public duty as a public officer-and for his acts the town is not responsible. Dupuis v. Fall River, 223 Mass. 73, 111 N. E. 706, and cases cited.

An action of tort at common law will not lie against a city or town for diverting the surface water from its streets in order to keep them safe, and causing it to flow upon adjoining premises, even when the surface water is drained into a culvert or water course. The remedy is under the statute. R. L. c. 51, § 15, now St. 1917, c. 344, pt. 4, § 21; ...