Mcmanus v. Inhabitants of Town of Weston
| Decision Date | 09 September 1895 |
| Citation | 164 Mass. 263,41 N.E. 301 |
| Parties | McMANUS v. INHABITANTS OF TOWN OF WESTON (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
These were actions of tort to recover damages for injuries sustained by plaintiffs while driving along a county road in Weston called "Central Avenue." At the trial it appeared that the accident was caused by the failure of persons in charge of work on the avenue to give warning that a steam drill was in operation on the avenue, and also by the acts of the persons in charge of the drill allowing steam to escape from the boiler while plaintiffs were passing. The work on the avenue was done under the charge of the road commissioners of the defendant, who acted under a vote of the town in carrying out the work, which was done under an order of the county commissioners.
Elder Wait & Whitman, for plaintiffs.
Allin & Mayberry, for defendant.
These two cases were tried together, and both depend on the same facts; and the principal question in each is whether the road commissioners acted as public officers, or as servants of the town. We think that they acted in the former capacity, and not in the latter. The office of road commissioner is of recent origin. It was first established by chapter 158, Acts 1871. By the second section of that act it was provided that "said road commissioners shall have and perform exclusively all the powers and duties now vested by law in selectmen and surveyors of highways, concerning the laying out, altering making, repairing or discontinuing streets ways, sidewalks, sewers and drains." This was amended by chapter 51, Acts 1873, by substituting therefor a new section, as follows: "Said road commissioners, in matters concerning streets, ways, bridges, monuments at the termini and angles of roads, guideposts, sidewalks, shade-trees, sewers and drains, shall exclusively have the powers and be subject to the duties, liabilities and penalties of selectmen and surveyors of highways." This section, with an added provision about the moving of buildings in public streets, forms section 75, c. 27, Pub.St., and that, in turn, forms section 23 of chapter 423, Acts 1893, in regard to the powers and duties of town officers. It is evident that the object of the amendment was, not to restrict the powers and duties of the road commissioners, but rather to enlarge them, or, perhaps, to make it clearer what they were originally intended to include. The purpose of the statute was to enable towns to unite in one board for the sake of greater efficiency, powers and duties which, speaking generally, were exercised by the selectmen and surveyors of highways, in regard to streets and ways, and to give them the exclusive control over such matters. And it is apparent that a board, so constituted, and acting within the scope of its powers and duties, would act as a board of public officers, and not as servants of the town. Walton v. Swampscott, 1 Allen, 101; Tindley v. Salem, 137 Mass. 173 et seq., and cases cited; Blanchard v. Inhabitants of Ayer, 148 Mass. 174, 19 N.E. 209. The plaintiffs contend, however, that the work in which the road commissioners were engaged upon Central avenue did not come within their powers and duties as public officers. But we think that what they were doing fairly may be called a "making and repairing," within the meaning of section 3, c. 52, Pub.St. Although ordered by the county commissioners, the work did not relate to the construction of a new way, or the building of one that had been materially widened or lengthened or changed from its original lay out, but was in the nature of repairs to and improvement of an existing way, and for the purpose of rendering it safer and more convenient to travelers. The petition under which the county commissioners acted was for the relocation of an existing way. What was to be done was spoken of in the first appropriation by the town as "repairs on Central avenue," and the exceptions expressly state that the ledge where the work was being done at the time of the injury complained of was wholly within the old lines, and that the location by the county commissioners did not differ much from the old line of fences; meaning, as we infer, that the old road and the road as located by the county commissioners were substantially the same. There is nothing to show that the removal of the ledge would not have been within the ordinary scope of the powers and duties of surveyors of highways. From the absence of any testimony as to the previous condition of the road, it is not easy to say that the repairs, though extensive, were not such as would not have come within the province of the road commissioners after the town had appropriated the money for them. Proctor v. Stone, 158 Mass. 564, 33 N.E. 704. The mere fact that they were unusual, or permanent, or expensive, or authorized by a special vote and appropriation, would not prevent them from being of such a character. Hennessey v. City of New Bedford, 153 Mass. 260, 26 N.E. 999; Pratt v. Weymouth, 147 Mass. 245, 17 N.E. 538; Denniston v. Clark, 125 Mass. 216; Mitchell v. Bridgewater, 10 Cush. 411. In Craigie v. Mellen, 6 Mass. 7, it was assumed without question that it was the duty of the highway surveyors to make safe and passable a town way which had been laid out for the inhabitants of Cambridge, and approved by them. See, also, Cyr v. Dufour, 68 Me. 492. In Callender v. Marsh, 1 Pick. 417, 426, which has never been questioned as an authority (Burr v. Leicester, 121 Mass. 242), it is said that the authority of highway surveyors "would seem to include everything which may be needed towards making the ways perfect and complete, either by leveling them where they are uneven and difficult of ascent and descent, or raising them where they should be sunken and miry." In consequence of this decision, and of the suggestions contained in it, a statute was passed giving a remedy to landowners who sustained damages by any act done in raising, lowering, or otherwise for the purpose of repairing a highway or town way. Rev.St. c. 25, § 6; Pub.St. c. 52, § 15. But as was said in Denniston v. Clark, 125 Mass. 225, "this statute does not affect the extent of the authority of the public and its officers, or the principle upon which that authority rests." It is true that it has been...
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