Holleran v. City of Boston

• Decision Date: 16 May 1900
• Citation: 176 Mass. 75,57 N.E. 220
• Parties: HOLLERAN KELLY v. CITY OF BOSTON. KELLY v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 75

57 N.E. 220

HOLLERAN KELLY v. CITY OF BOSTON. KELLY v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 16, 1900

COUNSEL

Geo R. Sawsey and E. O. Thayer, for plaintiffs.

S. M Child and P. Nichols, for defendant.

OPINION

HAMMOND J.

The plaintiffs in these actions of tort seek to hold the defendant answerable in damages for changes in the flow of surface water, caused by certain acts of the park commissioners and of the defendant, and also for discharging the contents of an old cellar drain from the Gleason House within the park limits.

1. As to the changes caused by the park commissioners. Under St 1875, c. 185,§ 3, these commissioners are authorized to take land in fee for park purposes, and to lay out and improve the same; and by the fifth section a remedy is given to all persons who sustain damages by the taking of land, or 'by other acts' of the commissioners. There is nothing in the evidence offered by the plaintiffs to warrant a finding that in making the changes within the park the commissioners exceeded their authority. It is, therefore, too plain for discussion that the remedy for damages thus caused is by proceedings under the statute, and not by an action of tort. As to the drainage of the house. It does not appear that such drainage appreciably affected the quantity or quality of the water in the brook. See Bainard v. City of Newton, 154 Mass. 255, 27 N.E. 995, and cases cited.

2. As to the disposition of the surface water by changes within the limits of the highway. The drains and catch-basins were for the purpose of aiding in removing the surface water from the highway, and there is nothing in the evidence offered by the plaintiffs to show that they were not properly constructed. It is well settled in this commonwealth that if a town, in the performance of its duty to keep a highway safe and convenient for travel, diverts the surface water upon the heighboring land, it is not answerable in tort; and this is the rule even where the water is gathered into artificial channels before passing from the highway, or where it is drained into a water course. The remedy is under the statute. Flagg v. City of Worcester, 13 Gray, 601; Turner v. Inhabitants of Dartmouth, 13 Allen. 291; Kennison v. Beverly, 146 Mass. 467, 16 N.E. 278, and cases cited. We are of the opinion that these cases are governed by the principles above declared, and that they are clearly...