Pevear v. City of Lynn

• Decision Date: 14 June 1924
• Citation: 249 Mass. 486,144 N.E. 379
• Parties: PEVEAR v. CITY OF LYNN. BAKER v. SAME. CHASE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 486

144 N.E. 379

PEVEAR

v.CITY OF LYNN.

BAKER

v.SAME.

CHASE

v.SAME.

Supreme Judicial Court of Massachusetts, Essex.

June 14, 1924.

Exceptions from Superior Court, Essex County; J. F. Quinn, Judge.

Actions of tort by Nellie O. Pevear, by Thomas J. Baker, and by Amos B. Chase, respectively, against the City of Lynn, to recover damages resulting from flooding of premises. Verdict for plaintiffs, and all parties bring exceptions. Defendant's exceptions overruled, and plaintiffs' exceptions waived.E. S. Underwood and J. W. Sullivan, both of Lynn, for plaintiffs.

S. Parsons, of Boston, and P. F. Shanahan, of Lynn, for defendant.

RUGG, C. J.

These are actions of tort to recover compensation for damages resulting from a flooding of the premises of the several plaintiffs. Each cause of action is founded on alleged negligent maintenance of the sewer system of the defendant.

[1] The law governing actions of this nature is settled. A municipality is not responsible for damages which accrue to individuals through any defect or inadequacy in the plan of its system of sewers, because that is established by public officers acting not as its agents, but in a quasi judicial capacity for the benefit of the general public. A municipality is responsible for damages which accrue to individuals through negligence in the construction, maintenance or operation of its system of sewers because that system when constructed becomes the property of the municipality; no one else can interfere with it and its care and continuance devolve wholly upon the municipality through such agents as it may select. Child v. Boston, 4 Allen, 41, 81 Am. Dec. 680;Buckley v. New Bedford, 155 Mass. 64, 29 N. E. 201;Manning v. Springfield, 184 Mass. 245, 68 N. E. 202;Robinson v. Everett, 191 Mass. 587, 77 N. E. 1151;Diamond v. North Attleborough, 219 Mass. 587, 107 N. E. 445.

These cases were referred to an auditor, who reported at length. They then were tried to a jury upon the report of the auditor and oral testimony chiefly from hydraulic and sanitary experts. Verdicts were returned in favor of the several plaintiffs. The cases are here on exceptions.

The property of the several plaintiffs was located upon one of the chief streets near the business center of the defendant city and apparently upon land only slightly above the level of the sea. The damages of which they complain were caused by water flowing into the basement and first floor of their building and stores during a brief but exceedingly heavy downpour of rain in July, 1915, and August, 1916. The plaintiffs contended that this flooding was caused by the negligence of the defendant in caring for and maintaining its system of sewers, while the defendant contended that, so far as the flooding resulted from its sewers, it was due to an inadequate plan. The cases finally were submitted to the jury on two issues only: First, whether the damage to the plaintiffs was caused in any part by negligence of care and maintenance in running the waters of Stacey Brook continuously into the sewer, and second, whether the damage to the plaintiffs was caused in part by deposits of sediment negligently allowed by the defendant to accumulate in the Market street sewer.

By reason of bad conditions existing in 1884, the defendant employed an engineer to study its sewer system. He made an exhaustive report. In November of that year the city council of the defendant adopted an order authorizing the committee on drainage ‘to construct the Eastern intercepting sewer and Stacey's Brook main sewer as recommended in the report and plan of Mr. Hering, C. E., and that the committee employ an engineer to lay out and superintend the work.’ Manifestly this was an adoption of the Hering plan with reference to Stacey's Brook main sewer, which emptied into the Eastern intercepting sewer. No question is raised as to the construction of these sewers in accordance with the sizes thus recommended and adopted. The controversy concerns the proportion of the waters of Stacey's Brook which by the plan were designed to flow into the Eastern intercepting sewer. Stacey's Brook was in 1884 a natural stream having its source in Floating Bridge or Glenmere Pond, which it drained, and flowing through a meadow to the sea. It had then become considerably pollutted by house drainage. The auditor found that the Hering report and plan were comprehensive and in great though not complete detail. ‘Vital features were left to the recommendation and to the discretion of the construction engineer,’ as contemplated by the plan and the order.

‘The Hering report contemplated the reception of a portion of the surface water from Staccy's Brook and provided for the location of two flushing gates along its course. These two flushing gates were located, one at the intersection of Chatham street with Marianna street, and one at the intersection of Chatham street with Saratoga street. These flushing gates were at the bottom of...