Kennison v. Inhabitants of Beverly

Field, J. The plaintiff complains that her land is injured by surface water, which is collected in drains or gutters by the sides of streets, and is thereby conducted into a pit, or catch-basin, on the side of Bartlett Street, directly opposite to her house, and from eight to ten feet therefrom, whence the water passes “ through the soil and the wall into her cellar.” There was evidence that this catch-basin was constructed with “its sides made of loose rocks uncemented,” and that a “ small pipe under ground was its only outlet,” and that this was “completely choked up with sticks and leaves.” The streets were public ways. The evidence does not show by whom the drains or gutters and the catch-basin were constructed, but we think that there was evidence that they were maintained by the town as a part of the system of highways which it was bound to keep in repair. The drains and catch-basin were within the limits of 469 tlie highways. We are of opinion that the principles declared in Flagg v. Worcester, 13 Gray, 601, Barry v. Lowell, 8 Allen, 127, Franklin v. Fisk, 13 Allen, 211, and Turner v. Dartmouth, 13 Allen, 291, govern this case. See Emery v. Lowell, 104 Mass. 13, 16; Merrifield v. Worcester, 110 Mass. 216, 220. If a town by its agents, or if the highway surveyors of a town, in constructing or repairing highways, cause the surface water to flow upon the land of an adjoining proprietor, there is no remedy by action. The owner of the adjoining land can protect himself by such barriers as he may choose to build, and in some cases he has a remedy under the Pub. Sts. c. 52, § 12 or § 15. We can find no distinction in respect to legal liability between an injury to land from surface water collected in gutters and catch-basins which are below the surface of the adjoining land, and from which the water percolates through the soil, and an injury from surface water which, overflowing the gutters and catch-basins, runs over the adjoining land, or which is turned directly upon it. Fxceptions overruled.