Lead Lined Iron Pipe Co. v. Inhabitants of Wakefield 

• Decision Date: 06 April 1916
• Citation: 112 N.E. 237,223 Mass. 485
• Parties: LEAD LINED IRON PIPE CO. v. INHABITANTS OF WAKEFIELD (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 485

112 N.E. 237

LEAD LINED IRON PIPE CO.

v.INHABITANTS OF WAKEFIELD (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

April 6, 1916.

Exceptions from Superior Court, Middlesex County; John F. Brown, Judge.

Two actions of tort by the Lead Lined Iron Pipe Company against the inhabitants of Wakefield. Verdict directed for defendant, and plaintiff excepts. Exceptions overruled.

John J. Butler, of Boston, for plaintiff.

M. E. S. Clemons, Town Counsel, of Boston, for defendant.

PIERCE, J.

These are two actions of tort depending upon the same state of facts, to recover for the flooding of the plaintiff's premises with water.

The material facts, as they appear in the bill of exceptions, are as follows: A natural watercourse traverses and drains the plaintiff's premises. It has its source in a spring on private land, flows in an easterly direction, runs along the northerly boundary of the plaintiff's premises; thence through a culvert under North avenue, a public way; thence through land bought by the defendant March 11, 1913, for school purposes; thence under Main street, a public way; thence through an open, walled ditch to Richardson avenue, a public way; thence along land of a branch of the Boston & Maine Railroad through an open concrete ditch, through an upright wooden grating into a closed culvert; thence through private land to the Saugus river.

The town, from time to time, established surface drainage in the various streets, all within the water shed of the brook, and emptied the surface drainage into the brook through pipes and otherwise, both above and below the plaintiff's premises. The town appropriates the money for this purpose and the superintendent of streets does the work under the instruction of the selectmen. The town did not authorize the election in 1912, 1913 and 1914 of road commissioners, or surveyor of highways, but voted in March, 1912:

‘That the Board of Selectmen be instructed to employ a competent engineer who shall be a practical road builder, as superintendent of streets.’

The selectmen appointed a superintendent of streets in June, 1912. There was a superintendent of streets appointed by the selectmen in the years that followed, though there was no evidence of any subsequent vote of the town in reference thereto.

The plaintiff claims, that the superintendent in the defendant town was an agent of the town and not a public officer, because of the vote of the town above quoted. The answer to this argument is that the selectmen are required in default of town action, to appoint a superintendent of streets by R. L. c. 25, § 85, who shall have the powers, perform the duties and be subject to the liabilities and penalties of surveyors of highways. Prince v. Lynn, 149 Mass. 193, 21 N. E. 296. The vote of the town if more than advisory was void. That a surveyor of highways is a public officer and not a town agent requires no citation of authority.

a former superintendent of streets had cleaned out parts of the brook in years previous to 1912, under instructions from the Board of Selectmen, but nothing had been done to the brook since that time by the present superintendent of streets, except to clean out the culvert under Main street. The brook was not a main drain within the meaning of P. S. c. 50, §§ 1 to 19, and amendments in addition thereto. Smith v. Gloucester, 201 Mass. 329, 87 N. E. 626.

March 2, 1914, after two days of severe wind and rain, surface water overflowed the gutters and filled the streets and cellars of houses along the street. As a result, the brook and the low land in the vicinity of the brook was flooded; ‘water came...