Ryder v. Town of Lexington

• Decision Date: 29 May 1939
• Citation: 303 Mass. 281,21 N.E.2d 382
• Parties: RYDER v. TOWN OF LEXINGTON. RYDER et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 281

21 N.E.2d 382

RYDER

v.TOWN OF LEXINGTON.

RYDER et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

May 29, 1939.

Exceptions from Superior Court, Middlesex County; Walsh, Judge.

Actions of tort by Charles W. Ryder and by Charles W. Ryder and others, trustees, against the Town of Lexington for damage to land by overflow of a brook. Findings for plaintiffs, and defendant brings exceptions.

Exceptions in first case overruled, and those in second case sustained, with direction.R. B. Owen and J. F. Morgan, both of Boston, for plaintiffs.

S. R. Wrightington, of Boston, for defendant.

RONAN, Justice.

These are two actions of tort to recover for damage to several parcels of land, belonging to the plaintiffs, caused by the overflowing of Vine Brook, a natural watercourse, which flows through the southerly central area of the defendant town, through a culvert beneath Massachusetts Avenue, and thence into the Shawsheen River. The plaintiffs allege that the flooding of their property was due to the negligence of the town in constructing and maintaining the culvert under Massachusetts Avenue which retards the flow of the brook, and to the action of the town in overloading the brook by diverting into it, by means of a system of drains, a great amount of surface and ground water. The cases were heard by an auditor, and were then heard upon his report, together with other evidence, in the Superior Court. There were findings for the plaintiffs in both cases.

The plaintiffs own several parcels of land adjacent to or near the brook, and portions of some of these parcels have at times been used for agricultural purposes. Their lands prior to 1926 were flooded at times, but they were used to a considerable extent for raising vegetables and hay. After 1928 it was impossible on account of the wetness of the land to utilize it for these or other useful purposes. Vine Brook has two branches that join about five hundred to six hundred feet south of Massachusetts Avenue, which is the principal street in the defendant town. The watershed of this brook is between eight hundred and nine hundred acres and the plaintiffs own a little less than two hundred acres. Their lands are located along the lower or southern branch of the brook. The drainage of the area has engaged the attention of the town for more than sixty years. Improvements have been made from time to time, but there have been periods when there was a return of the earlier conditions and the lowlands, especially along the southern branch of Vine Brook, have been flooded. None of the drains carried domestic sewerage or industrial waste.

Following action taken at several town meetings, St.1873, c. 214, was enacted, which authorized the town to drain the meadows, to make excavations, to lay drains and to take the necessary land. The power conferred on the town was to be exercised by the selectmen. The expenses incurred by the alteration of culverts under public ways were to be borne by the town, and assessments were to be made upon the lands benefited by the drainage. The town voted to accept the act, and appropriated $500 for building or enlarging the culverts under four streets. Evidently some of the work was actually completed, for assessments were laid and collected. This court held that the act had not been duly accepted by the town, Locke v. Selectmen of Lexington, 122 Mass. 290, and the Legislature passed St.1878, c. 85, authorizing the town to raise money for the payment of the expenses incurred in draining the meadows and for all damages and liabilities thereby sustained. The previous votes of the town and the expenditures theretofore made were ratified. A subsequent town meeting authorized the reimbursement to those who had paid the assessments.

The auditor reports that ‘There was no direct evidence concerning when or by whom the culvert which is now beneath Massachusetts Avenue was constructed. Both parties agreed that the culvert was constructed during the progress of the drainage work as authorized by the Statute of 1873.’ The judge in granting the plaintiffs' first request found that this culvert was constructed by the defendant acting through its agents.

The plaintiffs allege that the brook has been overloaded by the discharge therein of eight drains. In 1906 a drain was built in Massachusetts Avenue for the purpose of caring for the street surface water and water from roofs and cellars. Beginning in 1915 sanitary sewers were laid in certain streets, including Massachusetts Avenue. Subdrains were constructed under most of these sewers and they discharged into Vine Brook below the culvert. There was evidence that two hundred thousand gallons of water were daily discharged from these subdrains into the brook. The other seven drains were constructed during the period from 1918 to 1931. All of them took care of surface water upon the streets. One also drained a park and this was connected with another, which drained a playground. One of these drains was also used to drain a parcel of private property, while another drained a school yard. The principal purpose, however, of all, excepting the park and playground drains, was to drain the surface water from streets, although some of them also drained property in their vicinity. Some carried underground water together with surface water. They were ordinary, tile drains, having calked joints (with the exception of the one located in the playground) and were well constructed in accordance with good engineering practice. With the exception of the one located in the park, they discharged into Vine Brook water that had accumulated within the watershed of this brook. The park drain served an area of five acres within the watershed of North Brook, but there was evidence that the drain laid in Massachusetts Avenue discharged into North Brook the surface drainage of an area of two and three tenths acres within the natural watershed of Vine Brook. The drains carried more water from this watershed into Vine Brook because they conveyed water some of which would ordinarily have been absorbed by vegetation and evaporation and would never have reached the brook if the drains had not been laid. Moreover, less water was being lost by evaporation as the area of hardened street surfaces increased.

There was no defect in the original plan of these sewers, but they discharged water into Vine Brook more rapidly and in greater quantities within given periods of time than would have occurred if the drains had not been installed. No adequate provision was made in the channel of the brook to care for such rapid and increased flow. The culvert at Massachusetts Avenue was insufficient to permit the free unobstructed flow of such a rapid increase in the quantity of water. The result of the discharge was a backing up of the water and the consequent flooding of the lands of the plaintiffs; and thus raising the height of the underground water table and ponding water on the plaintiffs' lands for longer periods of time than would otherwise have occurred. The bed of the culvert was seven and one half inches higher than the bed of the brook for a distance of two hundred and twenty-five feet upstream or toward the plaintiffs' properties. This difference in elevation had a tendency to retard the flow of water. The whole capacity of the culvert is insufficient to take care of the flow of water of the brook under flood conditions.

There was evidence that the Massachusetts Avenue drain was constructed by the surveyors of highways; the drain in Muzzey Street was laid in 1918 by the town engineer under instructions from the selectmen; the Engstrom drain, which replaced one laid by the board of health, was constructed by the selectmen; the Highland Avenue drains were constructed in 1925 or 1926 by independent contractors, in accordance with written contracts which were executed by the ‘Board of Selectmen and Public Works'; the Forest Street extension sewer was laid in 1925; the playground drain was constructed in 1929; the park drain, which was connected with two catch basins in Lincoln Street, drained the park and was laid and connected with the playground drain in 1930; and the Clark Street drain was laid in July, 1931, about a month before the present actions were brought.

The principal contention of the defendant is that the culvert was constructed and these drains were laid by public officers and consequently there is no liability upon the town. A board of sewer commissioners was created by St.1897, c. 504, and was authorized ‘to lay out, construct, maintain and operate a system or systems of main drains and common sewers for a part or for the whole of its territory * * * and said board for the purpose of providing better surface or other drainage for any part or parts of said town, guarding against pollution of waters, and otherwise protecting the public health, may lay, make and maintain such main drains as they deem best, may within the limits of said town deepen, widen and clear of obstructions any brook, stream or water course, and straighten, alter or divert the courses or channels thereof.’ Sewer commissioners were elected from the enactment of this statute until 1922. Each year from 1905 to 1917 the same individuals were elected surveyors of highways and selectmen, and from 1917 to 1922 the same persons were elected selectmen and road commissioners. St.1922, c. 1, provides that the board of selectmen shall constitute the board of public works and shall have the powers and duties vested by law in certain boards including the road commissioners, water and sewer commissioners, park commissioners, and board of health. The town meeting in May, 1926, authorized the selectmen to lay a drainage system across private land from Highland Avenue to Vine Brook and to lay a drainage system in Highland Avenue from Winthrop Road to Bloomfield Street. The auditor reportedall the facts relative to the capacity in which...