Johnson v. Dunn

Devens, J. Upon the facts as they must have been found by the jury under the instructions of the court, the highway was unlawfully obstructed by reason of the negligence of the plaintiff, in permitting an ancient watercourse upon her land to become choked by snow and ice so that the water was set back upon it; and the defendant, acting as highway surveyor, deeming it a public nuisance which his duty required him to remove, entered upon her land, opened the channel of the watercourse in a proper manner, so that the water upon the highway could flow off, the acts done by the surveyor being necessary means for the removal of the nuisance, and due regard having been had by him, in whatever was done, to the safety and protection of the plaintiff’s land lower down the stream from any needless injury. The acts done by a surveyor in that portion of the highway within the limits of his jurisdiction, for the purpose of repairing the same or of removing obstructions therefrom, are strictly within the scope of his official duty; his judgment is conclusive upon their necessity, the motives upon which he acts are not important, and the only remedy afforded to the landowner is under the provisions of the statute, when an injury occurs such as is there contemplated. Denniston v. Clark, 125 Mass. 216. The duty of towns to keep their highways safe and convenient, so that travellers may pass and repass thereon at all seasons of the year, is discharged by means of the highway surveyors, who are to remove whatever obstructs or encumbers them, or [524] whatever may hinder, incommode or endanger those travelling thereon, and their decision is not subject to revision. Gen. Sts. c. 44, §§ 1, 8. Morrison v. Howe, 120 Mass. 565. They are public officers, and not mere servants or agents of the town, and are subjected to severe penalties for a failure to perform their official functions. Walcott v. Swampscott, 1 Allen, 101. Gen. Sts. c. 18, §§ 74, 75. The instructions do not suggest that there would be any such protection to the defendant in doing the acts complained of as would be afforded had they been done within the limits of the highway. The owner of land through which a watercourse flows may enter upon the land of another lying below his own, and remove any unlawful obstruction which causes the water to flow back upon his land, exercising proper precautions for the safety and protection of the property of him upon whose land he enters. Hodges v. Raymond, 9 Mass. 316. Colburn v. Richards, 13 Mass. 420. Where a public way is unlawfully obstructed, an. individual may enter on.the land of the party erecting or continuing the obstruction, and remove it, doing as little damage as possible to the soil and buildings. Arundel v. M’Culloch, 10 Mass. 70. Elder v. Bemis, 2 Met. 599, 601, 605. The instructions apply these principles to the duties of the surveyor who finds the highway obstructed by the act or neglect of a person owning land outside of the highway; and they are sufficiently favorable to the plaintiff. They attribute only to the surveyor the same rights which a private owner has when he finds his land invaded in a similar manner, or which the traveller possesses when he finds his way obstructed. Unless the surveyor may do what the instructions contemplate, there is no public officer competent to act under such circumstances, and the highway must remain impassable, or be swept away by wrongful acts which no individual will undertake to remedy. In subjecting the surveyor who enters upon private lands and removes the obstructions which flow water back upon the highway to the risk of being treated as a trespasser, should the act or neglect be found not to have been unlawful, or should the means adopted by him be found not to have been proper and necessary, the rights of the landowner are fully protected. Exceptions overruled.