Smith v. City of Gloucester

• Decision Date: 01 March 1909
• Citation: 201 Mass. 329,87 N.E. 626
• Parties: SMITH v. CITY OF GLOUCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 329

87 N.E. 626

SMITH v. CITY OF GLOUCESTER.

Supreme Judicial Court of Massachusetts, Essex.

March 1, 1909

COUNSEL

Edgar S. Taft, for plaintiff.

Lincoln S. Simonds and John J. Cunningham, for defendant.

OPINION

LORING J.

This case was heard by the court without a jury. The judge found for the plaintiff and reported the case to this court for its determination. By the terms of the report judgment is to be entered on the finding 'if the finding for the plaintiff is justified on the facts reported,' and if certain rulings and refusals to rule were correct; otherwise judgment for the defendant.

We understand the facts to be as follows: The plaintiff before 1874 and since then has been the owner of a lot of land lying to the west of and abutting on Mt. Vernon street in the defendant city. Mt. Vernon street runs north and south and slopes towards the south. From what is stated further on it would seem that the land on both sides of Mt. Vernon street slopes toward the west as well as toward the south.

A natural water course originally flowed west through the plaintiff's lot of land, close by its northerly boundary. This water course 'had its origin in and drained territory to the east of the plaintiff's premises.' That means that it had its origin in land lying east of Mt Vernon street and drained that land, and presumably the land now within the limits of that street.

At some time before 1874 this natural water course within the limits of the plaintiff's fand was walled in on each side and was connected 'with the stone culvert under' Mt. Vennon street, through which the water course flowed from the place of its origin east of Mt. Vernon street. 'By whom these walls were built and when built did not appear, except the walls and the culvert were in existence prior to 1874.' For convenience we shall hereafter speak of what had been this natural water course as the 'ditch.' It had become in fact a ditch in 1886 (as we shall see later on), if not in 1874, and is spoken of as a ditch in the report.

In 1874 'the superintendent of highways of the defendant city' built a catch-basin in Mt. Vernon street, 'distant about 30 feet northerly from the northeast corner of the plaintiff's land,' and connected this catchbasin with the ditch by 'a line of pipe laid in the street,' and then (for a short space) through the sougheast corner of private land lying next north of the northerly line of the plaintiff's lot and through the northeast corner of the plaintiff's land. This 'line of pipe' entered the ditch at the northeast corner of the plaintiff's lot.

The culvert under Mt. Vernon street which originally conducted under that street the waters of the natural water course was filled up in 1886 or 1887 by a private water supply company in laying its pipes; 'and since this filling no water from the territory to the east of this street has reached the ditch or drain by its previously existing channel.'

In 1876 or 1877 'the defendant's superintendent of highways,' at the plaintiff's request, covered the top of the ditch with flagstones for a distance of some 70 feet from Mt. Vernon street, in connection with a driveway which the plaintiff then built from Mt. Vernon street along the southerly edge of the ditch to his stable.

In 1878 or 1879 the plaintiff moved this stable to the northeast corner of his land and made it into a dwelling house. This house was placed just south of the ditch. The foundations of the northerly side of the house were placed 'upon' the southerly edge of the stone wall forming the southerly side of the ditch.

'Employés of the highway department of the defendant city, on several occasions since 1874, have cleared out or partially cleared out the ditch or drain, at the request of the plaintiff, one occasion in 1894 being in consequence of a break in the water pipe in this street which flooded the plaintiff's house and filled the ditch. During two unusually heavy rainstorms, one in 1903 and the other in 1904, surface water collecting in this street flowed into this catch-basin and thence into the ditch in large quantities, and by reason of the prior accumulations in the ditch of sand and other surface wash of the streets, due to the failure to properly clear out the ditch, and also by reason of the gravel and other material brought in there during these storms, the water was caused by percolation to enter the basement of the plaintiff's house and also to overflow the ditch into the yard and to enter the said basement * * * It is for the water that entered the basement because of the condition of the ditch that damages are claimed.'

The finding of the judge is in these words: 'I find that the plaintiff is entitled to recover for the damages done by the water entering the basement caused by the accumulation of sand, mud and other materials in the ditch.'

This is in effect a finding that the cause of the injury to the plaintiff was 'the accumulation of sand, mud and other materials in the ditch.' Has the plaintiff proved that the defendant city is liable for that?

The plaintiff's contention is that by the use which had been made of this ditch since 1874, when 'the superintendent of highways of the defendant city' laid a pipe from the catch-basin into it, the city has gained a prescriptive right in the ditch and therefore is liable for the accumulation of sand and mud therein.

The catch-basin and pipe in question was not laid by the city, but by the defendant's superintendent of highways. 'The superintendent of highways of the defendant city' is in law the surveyor of highways for the defendant city.

By the charter of the defendant city it is provided that the city council shall annually elect (inter alios) 'one or more superintendents of highways.' St. 1873, p. 675, c. 246, § 13. The ordinances of the defendant city are not set forth in the report, but it is there found as a fact that 'no change has been made in its provisions which require the city council to elect annually a superintendent of highways who exercises the same powers and performs the same duties as a surveyor of highways.' If it were necessary, this should be taken to be a finding that an ordinance of the defendant city so provides. But that is not necessary. For when no provision to the contrary has been made by ordinance, superintendents of highways elected under such a charter are 'part of the organization which as a whole takes the place of a surveyor of highways,' to quote the words of Holmes, J., in McCann v. Waltham, 163 Mass. 344, 345, 40 N.E. 20. It has been uniformly held that officers elected under the provisions of city charters to perform the duties of surveyors of highways, whatever may be their designation, bear the same relation to the city electing them that the surveyor of highways bears to the town electing him. In other words they are in legal contemplation surveyors of highways. Barney v. Lowell, 98 Mass. 570; Prince v. Lynn, 149 Mass. 193, 21 N.E. 296; Hennessey v. New Bedford, 153 Mass. 260, 26 N.E. 999; McCann v. Waltham, 163 Mass. 344, 40 N.E. 20; Jensen v. Waltham, 166 Mass. 344, 44 N.E. 339; Taggart v. Fall River, 170 Mass. 325, 49 N.E. 622.

Butman v. Newton, 179 Mass. 1, 60 N.E. 401, 88 Am. St. Rep. 357, and Waldron v. Haverhill, 143 Mass. 582, 10 N.E. 481, are not decisions to the contrary. These are cases where, applying this rule, it was decided that the ordinances of the defendant cities had taken certain work out of the hands of the officers elected to perform the duties of the highway surveyor and had committed it to other persons as agents of the city. In Butman v. Newton, for example, the ordinance put the work in the charge of a committee of the council under the 'supervision' only of the superintendent of highways, in place of leaving the work in charge of the superintendent subject to direction of the aldermen, as was the case in Prince v. Lynn, 149 Mass. 193, 21 N.E. 296, and Pratt v. Weymouth, 147 Mass. 245, 17 N.E. 538, 9 Am. St. Rep. 691. See, in this connection, McCann v. Waltham, 163 Mass. 344, 345, 346, 40 N.E. 20.

When the 'superintendent of highways of the defendant city' laid 'a line of pipe' from the catch-basin through the plaintiff's land and private land lying north of the plaintiff's land so that water collecting in the catch-basin flowed into the ditch, he committed a tort for which he was liable. There is no pretense that a right to lay this line of pipe from the catch-basin through private land north of the plaintiff's land and through the plaintiff's land, and to connect it with the ditch, was included in the lay-out of Mt. Vernon street. Under the circumstances the lay-out of Mt. Vernon street gave no right to lay this line of pipe. Anthony v. Adams, 1 Metc. 284; Franklin v. Fisk, 13 Allen, 211, 90 Am. Dec. 194. For laying this line of pipes 'the superintendent of highways of the defendant city,' who laid the pipes, was personally liable. Elder v. Bemis, 2 Metc. 599; Moynihan v. Todd, 188 Mass. 301, 74 N.E. 367, 108 Am. St. Rep. 473; Barry v. Smith, 191 Mass. 78, 77 N.E. 1099, 5 L. R. A. (N. S.) 1028. But the act of laying these pipes was not the act of the defendant city. Manners v. Haverhill, 135 Mass. 165; Johnson v. Somerville, 195 Mass. 370, 81 N.E. 268, 10 L. R. A. (N. S.) 715.

We assume in favor of the plaintiff that the subsequent use of this ditch by the public for over 20 years could have been found to have created a prescriptive right to use the ditch as it was used during the period in which it was used.

In our opinion the evidence did not warrant a finding in favor of the plaintiff. If the damage suffered by the plaintiff was caused by the negligence of the 'superintendent of highways of the defendant city' in not keeping this ditch free from...