Inhabitants of Arlington v. Cutter

Endicott, J. The demurrer raises the question whether a town can make or ratify such an agreement as was made with the defendant, and also whether the same is sufficiently set forth in the declaration. The declaration in substance alleges that Mill, Street in Arlington was duly relocated and widened by the selectmen, and afterwards accepted and allowed at a town meeting duly held; that in constructing the street, and making such relocation and widening it became necessary to cross over a flume belonging to the defendant, which conveyed water beneath the street to the defendant’s mill, and to make repairs upon it, and build a wall adjacent thereto, which would be a benefit to the defendant as well as the plaintiffs ; that the defendant agreed with the selectmen, that if they would repair and rebuild the flume, and construct the wall in the manner pointed out by him, he would pay the plaintiffs the expense of the same; that the selectmen did the work as agreed upon, and the plaintiffs paid for it; and that the town ratified the action of the selectmen in completing the street. We think a town may make or ratify such an agreement, and that it is sufficiently stated in the declaration. [346] The flume is alleged to have been within the limits of the street, and to repair and properly secure it was part of the work of constructing the street at that point. That duty being imposed upon the town, the defendant, who had an interest in the repair and new construction of the flume, for it was his property, agreed to pay the expenses, if the town or those having charge of the work would construct it according to his wishes. Consulting his interest, and at his request, the work was done in a particular manner, and paid for by the town, and the defendant should perform his part of the agreement, and pay according to his promise. It was said in Harris v. Springfield, 107 Mass. 532, 540, that the fact that the work was done, so far as was necessary to secure the conditions of the defendants’ liability, by the authorized agents of the city after the agreement, was sufficient evidence of acceptance by the city. There the agreement was to pay for edge-stones to be used in the repair of the highway; here it is made in reference to property of the defendant lawfully remaining under the highway. Bell v. Boston, 101 Mass. 506. Crocket v. Boston, 5 Cush. 182. Seymour v. Carter, 2 Met. 520. We express no opinion as to the regularity of the proceedings of the town in relocating the street. That question is not raised upon the demurrer. Demurrer overruled.