Kennison v. Inhabitants of Beverly

• Decision Date: 06 April 1888
• Citation: 16 N.E. 278,146 Mass. 467
• Parties: KENNISON v. INHABITANTS OF BEVERLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 467

16 N.E. 278

KENNISON v. INHABITANTS OF BEVERLY.

Supreme Judicial Court of Massachusetts, Essex.

April 6, 1888

COUNSEL

Samuel A. Fuller and William H. Gove, for plaintiff.

There was evidence from which the jury was authorized to find that an extensive and connected system of drains, by which the water from a number of streets was collected, drained a territory very much greater than the extent of territory which would naturally be drained without the intervention of such artificial means, and discharge the drainage into a cess-pool or catch- basin in the street, having no adequate means of discharge, whence it percolated through the earth into the plaintiff's cellar to her damage; and that all this construction had been in the public streets for many years, as the regular system of street drainage, so that, under the circumstances, the town was maintaining it and was responsible for it. Upon such a state of facts, the defendant would be liable. Brayton v. Fall River, 113 Mass. 218, (see page 226;) Manning v. Lowell, 130 Mass. 21; Stanchfield v. Newton, 142 Mass. 110 7 N.E. 703. The case is distinguishable from those presented in Flagg v. Worcester, 13 Gray, 601; Barry v Lowell, 8 Allen, 127; and Turner v. Dartmouth, 13 Allen, 291,--the water not being a surface flow, from which plaintiff could protect herself by merely turning it aside; but the surface water, having been collected in an under-ground cess-pool, and diverted by a subterraneous course through soil, lost its character as surface water, and could not be turned aside by the plaintiff, who could only protect herself against it, if at all, by elaborate construction of disproportionate expense. The case is therefore analogous to Child v. Boston, 4 Allen, 41 where the water was forced upon plaintiff's premises through his under-ground drain, which he had rightfully connected with the defendant's main drain or sewer. See, also, Emery v. Lowell, 104 Mass. 13, 17. The question, "Who fixed the drains at the time?" was competent, and should have been allowed. The answer might have shown by whom the acts of maintenance of the drain were performed,--whether by the town's agents or not,--which was a material question in issue. The plaintiff, being permitted to show who performed these acts, was thereby precluded from showing that they were performed by the town's agents.

H.P. Moulton, for defendant.

The water which flowed to the culvert and catch-basin from the streets named in the bill of exceptions, through drains (which appear from the evidence to have been merely gutters by the side of the streets,) was surface water, which naturally ran down these streets. The accustomed course of this surface water had not been changed. There was no evidence that any construction collected water from a larger area than was naturally drained by way of Bartlett street, nor that the culvert and catch-basin were beyond the limits of the highway. The plaintiff was not required by any act or by-law to draw water from her own land into any common sewer or drain, and had never used any street drains for the purpose of draining her own premises. She had the right to prevent the overflow from the catch-basin by erecting such obstructions as she saw fit. Under these circumstances, it is submitted that the cases of Barry v. Lowell, 8 Allen, 127, and Turner v. Dartmouth, 13 Allen, 293, and cases there cited, are decisive of the present case, and that the reasoning in the case of Stanchfield v. Newton, 142 Mass. 110, 7 N.E. 703, does not apply to the case at bar. No vote nor act of the town was offered in evidence, and it did not appear that the defendants or their agents constructed or maintained the culvert and catch-basin in front of the plaintiff's property. The question, "Who was the street surveyor of that ward in Beverly when the drains in front of the plaintiff's house were fixed, four years ago?" was properly excluded, because the street surveyors were not agents of the town, and the town was not bound by their acts. Wolcott v. Swampscott, 1 Allen, 101; Deane v. Randolph, 132 Mass. 475; ...