Shea v. Town of Lexington

• Decision Date: 11 April 1935
• Citation: 290 Mass. 361,195 N.E. 494
• Parties: SHEA et al. v. TOWN OF LEXINGTON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 361

195 N.E. 494

SHEA et al. v. TOWN OF LEXINGTON (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

April 11, 1935

Action of tort in district court, and suit in equity in superior court, by Donald Shea and another against the Town of Lexington. From an order by the appellate division, reversing findings for plaintiffs and ordering judgment for defendant in the action of tort, plaintiffs appeal, and from a decree ordered in the suit in equity, defendant appeals, and also brings exceptions to rulings made therein.

Order of Appellate Division affirmed. Exceptions sustained.

Appeals from Appellate Division of District Court, Third District Middlesex County; Green, Judge.

S. R Wrightington, Town Counsel, of Boston, for appellant.

G. A McLaughlin and W. H. McLaughlin, both of Boston, for appellees.

CROSBY, Justice.

These cases were argued together. The first is an action to recover damages alleged to have been caused to certain land of the plaintiffs in consequence of the construction and maintenance of a drain, and the dumping of stone on the land, and by reason of the discharge of surface water thereon, through the drain. The answer is a general denial, and certain affirmative defenses relative to the drain. Before the case was tried the defendant filed a motion to dismiss on the ground that the court had no jurisdiction since this is an action for trespass to land in Lexington and is, therefore, a local action. The motion was denied. On the first count the judge of the district court found for the defendant as against Donald Shea; and found for the plaintiff Justin Shea, and assessed damages in the sum of $1 because of the maintenance upon his land by the defendant of part of the drain above referred to. He found for the defendant on the claim for damages for the dumping of stone. On the second count the judge found for the plaintiff Donald Shea and assessed damages in a substantial amount. At the request of the defendant the case was reported to the appellate division. The plaintiffs owned adjoining parcels of land on Massachusetts avenue, a public way in the defendant town. While the report was pending they plugged the drain causing surface water to back up on the avenue which endangered travel. Employees of the town sought to relieve this condition. The plaintiffs sought to enjoin the town from entering upon their lands to remove the obstruction in the pipe, by a bill in equity filed in the superior court, and on a prayer for a temporary injunction an order of notice was issued. The answer of the defendant contained a counterclaim praying for a temporary injunction against the plaintiffs for plugging the drain and thereby flooding the street, until the rights of the parties are determined. The case was heard in the superior court on the plaintiffs' application for a temporary injunction. At the close of the hearing the judge stated that he would deny the application, and that he was inclined to grant the defendant's application for a temporary injunction, but no decree was entered. The plaintiffs' attorney then stated that he would withdraw his bill of complaint. To this the defendant objected on the ground that it had acquired rights by reason of having included in its answer a counterclaim and by reason of the judge's action thereon. The plaintiffs thereafter filed a motion for a final decree dismissing their bill, which was allowed subject to the defendant's exception. A final decree was entered dismissing the bill without prejudice with costs to the defendant. From this decree the defendant appealed. This is the second case before this court, and will hereinafter be considered. In the action at law the appellate division reversed the findings of the trial judge for the plaintiff Justin Shea under the first count of the declaration, and for the plaintiff Donald Shea under the second count, and ordered judgment for the defendant on both counts of the declaration. From this order the plaintiffs appealed.

1. The first count of the declaration in the action at law will first be considered. The lands owned by the plaintiffs respectively are located on Massachusetts avenue in East Lexington, in the defendant town, and consist of four parcels, lots C and B abutting on the avenue, lot A in the rear of these lots, and the Frizelle lot, so called, abutting on the avenue and adjoining lot B. All the lots are situated on the northerly slope of a hill, the apex of which is on the southerly side of the avenue opposite the land in question. The plaintiff Donald Shea took title in 1926 to lots A, B and C. In 1928 the plaintiff Justin Shea purchased the Frizelle lot. Prior to 1902, in front of the Frizellee lot a stone drain connected with a catch basin at either end crossed Massachusetts avenue, which drain extended under the sidewalk three or four feet into the Frizelle lot. In 1902, the avenue was widened and relocated by the Lexington and Boston Street Railway Company upon the grant of location to it by the defendant, and a taking was made in front of the locus for widening and general drainage purposes. At this time the old stone drain was removed, and a new drain was constructed for a distance of about forty or fifty feet into the Frizelle property. This extension of the drain was not authorized by the plaintiff Justin Shea and no taking was made for it. It was done by a contractor employed by the railway company. The drain remained and was extended from time to time until 1916, when one White, superintendent of streets of the defendant, entered the locus and extended the drain for approximately two hundred feet. In connection with this extension, the trial judge found as follows: ‘ In 1916, one Robert White, an employee of the Town of Lexington, holding the office of Superintendent of Streets, by order of the Selectmen of the Town of Lexington, acting in their capacity as such and not as highway surveyors, entered upon the locus and replaced the existing drain with an underground earthen drain of larger dimensions [increased length and not diameter] extending through the Frizelle lot in the same location as the preexisting drain, and down into lot A. * * * The drain constructed in 1916 was constructed in part, in so far as it was an extension of the existing drain, in a new location, and its enlargement and construction was of such a nature as to constitute in fact a new drain and not a continuation of the drain existing in 1902 or the one constructed in that year, but constituted a new undertaking on the part of the Town of Lexington without legal sanction, except as it was constructed under the authority and direction of the Board of Selectmen of Lexington.’ The above finding, that White acted under the direction of the selectmen of the town acting as such in laying the drain in 1916, is not justified by the evidence, and the appellate division rightly so ruled. There was evidence that the same persons were elected selectmen and surveyors of highways in Lexington from 1902 to 1917 and that the same persons were selectmen and road commissioners from 1917 to 1921 inclusive. St. 1922, c. 1, was accepted by the town, and there was evidence from the records of the selectmen of the defendant that in 1910 White was appointed superintendent of streets ‘ with the understanding all work is to be done under the direction of the Surveyors of Highways; * * *’ that in the six years from 1911 to 1916, White was appointed superintendent of streets, and no restriction upon his duties or upon his method of exercising his office appears upon the records; that the selectmen and surveyors of highways were the same persons; that there was no distinction between the meetings of the surveyors of highways and meetings of the selectmen; that the records of the selectmen concerning the appointment of White were records of the selectmen although references to action by the surveyors of highways appear in them and there was no separate record of surveyors of highways.

White testified that from time to time his department did work on the Frizelle drain and that he got his directions from the selectmen; that before doing work on the plaintiff' land he had talked with the selectmen; that he remembered talking with one Spaulding who was at that time a selectman but who is now dead; that he did not remember talking with any other member of the board, and he was unable to remember that the men with whom he talked told him in what capacity they were acting; that he remembered that there were at one time surveyors of highways in Lexington, and that he remembered talking with them about different work, but did not recall the exact time when the town ceased to have surveyors of highways.

The most that this evidence shows is that the selectmen and surveyors of highways were the same persons at the time the work in question was done; that the records of the selectmen which were the same as those of the surveyors of highways, show the appointment of White as superintendent of streets; that White said he got his directions for doing the work from the selectmen; that he was unable to remember that the men with whom he talked told him in what capacity they were acting. There was therefore nothing upon which to base a finding as to the capacity in which the men were acting when they gave White his orders. Malinoski v. D. S. McGrath, Inc., 283 Mass. 1, 10, 186 N.E. 225.The same persons were elected selectmen and surveyors of highways at the time the drain was constructed in 1916. Surveyors of highways at that time had the exclusive control of the ordinary repair and care of highways. R. L. c. 25, § 81 (G. L. c. 41, § 62). See Twombly v. Selectmen of Billerica, 262 Mass. 214, 217, 219, 159 N.E. 630; Tuckerman v. Moynihan, 282...