Hand v. Inhabitants of Brookline

• Decision Date: 28 February 1879
• Parties: James B. Hand v. Inhabitants of Brookline
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 324

James B. Hand v. Inhabitants of Brookline

Supreme Court of Massachusetts

February 28, 1879

Argued January 23, 1878

Norfolk.

Exceptions overruled.

M Williams, Jr., for the defendant.

J. W Keith, for the plaintiff.

Gray, C. J. Lord & Soule, JJ., absent.

OPINION

Gray, C. J.

In November 1875, the plaintiff, while travelling with due care in a wagon upon a highway in the defendant town, suffered injury by reason of his horse suddenly breaking through the surface of the highway. The declaration contains two counts: the one upon the Gen. Sts. c. 44, § 22, for a defect in the highway which the town was bound to keep in repair; the other at common law, for neglect in the construction of water-pipes, (which the town was authorized by the St. of 1872, c. 343, to lay and maintain for the purpose of supplying water to the town, and to owners of buildings therein, at rates established by the town,) whereby the water escaped and undermined and washed away the earth under the highway. It having been conceded by the plaintiff, and ruled by the Superior Court, that the plaintiff could not recover under the first count, and a verdict having been returned for him on the second count only, the question before us is whether the action can be maintained upon this count.

The cause of action set forth in this count is not the omission to perform the duty, imposed by general laws upon all cities and towns alike, of keeping the highways in repair; but it is the neglect in the construction of works which the town had been authorized by a special statute, voluntarily accepted, to construct and to receive profits from, just as a private corporation might. For a neglect in the manner of constructing such works, by which injury is caused to person or property, a town is just as liable as a private corporation or an individual. Scott v. Mayor, &c. of Manchester, 1 H. & N. 59, and 2 H. & N. 204. White v. Hindley Local Board, L. R. 10 Q. B. 219. Bailey v. Mayor of New York, 3 Hill 531, 539, and 2 Denio 433. Aldrich v. Tripp, 11 R.I. 141. Oliver v. Worcester, 102 Mass. 489, 501. Hill v. Boston, 122 Mass. 344, 358, 359, 365, 366, 374, 375, 377. Murphy v. Lowell, 124 Mass. 564.

If the water escaping from the aqueduct by reason of its negligent and imperfect construction had injured buildings or crops, there could be no doubt of the right of the owner to recover damages against the town. The fact that the injury occasioned was within the limits of a highway, where the person injured had a lawful right to be, affords no ground for exempting the town from this liability.

The right of action against a city or town for a defect in a highway is, as has been repeatedly affirmed by this court created and limited by the statutes. Gen. Sts. c. 44, § 22. But those statutes do not affect the common-law liability of owners of aqueducts for damages caused by negligence in their construction. If the water-works under the highway in Brookline had been constructed by an aqueduct corporation or by the city of Boston under authority of the Legislature, and for the purpose of supplying water at certain rates or rents, the corporation or the city would clearly be liable in an action like this; and the town of Brookline is not the less...