Dupuis v. City of Fall River

• Decision Date: 02 March 1916
• Citation: 111 N.E. 706,223 Mass. 73
• Parties: DUPUIS et al. v. CITY OF FALL RIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 73

111 N.E. 706

DUPUIS et al.

v.CITY OF FALL RIVER.

Supreme Judicial Court of Massachusetts, Bristol.

March 2, 1916.

Appeal from Superior Court, Bristol County.

Suit by Rose D. Dupuis and another against the City of Fall River. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Arthur S. Phillips and Thomas C. Crowther, both of Fall River, for appellants.

George Grime, City Sol., of Fall River, for appellee.

RUGG, C. J.

This is a suit in equity whereby the plaintiffs seek to restrain the defendant from causing water to overflow from a highway upon their premises, and for damages. The material facts have been found by a master as follows: The plaintiffs'premises are located on Eastern avenue near its junction with Pleasant street in Fall River. A natural brook drained a swamp and crossed Eastern avenue at a place distant several hundred feet from Pleasant street, and flowed into a pond. More than twenty years before this suit was brought, that brook was filled and a pipe laid across Eastern avenue in the general direction of the former course of the brook, to connect ultimately at a considerable distance with a plank drain in another street. ‘The city of Fall River furnished part of the material and the work for putting in this pipe.’ It is, perhaps, inferable that a part of this pipe lies outside the limits of Eastern avenue, though this is not clear on the record. A considerable part of the swamp has been filled and devoted to buildings and streets. The ‘outlet drain from * * * this swamp has been allowed to fill up so that a large quantity of water finds its way from’ the the swamp onto Eastern avenue, in which it flows, by reason of changes in grade, to its junction with Pleasant street, a point outside its original natural watershed, whereby the volume of water at this place is increased. This water formerly drained into the natural brook ‘at the location where the city constructed a plank drain and laid its connecting pipes, which * * * drain and pipes have since become stopped up by alluvial deposits.’ This plank drain seems to have been the one before mentioned, at a considerable distance from Eastern avenue, in another street. A quantity of surface water also collects at this point, from other streets. ‘Not in the nature of the laying out of a street or of specific repairs thereon, but solely for the purpose of relieving the congestion of water (in times of heavy rain) at the junction of Eastern avenue and Pleasant street, the city has constructed a system of underground pipes and piping connected with sand catchers,’ which collects the water from two corners and the center of the square made by the junction of these two streets and brings it to the surface again on Eastern avenue, so that a larger volume of water than is natural discharges and flows along and over Eastern avenue adjacent to the plaintiffs' premises. Nevertheless, the ordinary flow of all the water would not be sufficient in volume and force to flood the plaintiffs' land and premises, were it not for the construction of these pipes at the junction of the street and avenue. The construction and maintenance of ‘the system of underground pipes and piping connected with sand catchers' at this street junction is ‘the largest contributing factor to the extra amount of surface rainwater which in times of heavy rain runs onto the plaintiffs' property.’ This system was constructed, without any vote by the board of aldermen or of the city council, by the surveyor of highways of the defendant city, who was also the superintendent of streets.

On these facts, no liability on the part of the city is established. The proximate efficient cause of the injury sustained by the plaintiffs is the construction of the system of underground drains and ‘sand catchers,’ which appear to be a kind of catch-basin. This work was not done by order of the city or any of its authorized agents. It was done by the surveyor of highways in the performance of his ordinary duty of keeping the streets and ways reasonably safe and convenient for travel. Such work done by that officer is not in law the act of the city. He is a public officer discharging a public duty. He is not the agent of the city. His negligence is not the negligence of the city. The circumstance that he also is referred to as the...