Collins v. City of Waltham

Holmes, J. This case is presented on agreed facts. The only question is whether they require a judgment for the plaintiff as matter of law. No inferences of fact can be drawn. Old Colony Railroad v. Wilder, 137 Mass. 536, 538. Mayhew v. Durfee, 138 Mass. 584. It is agreed that surface water flows down a series of streets into Newton Street, by the open street gutters, and thence overflows adjoining lands. But these streets are substantially at the grade of the surrounding land, although somebody within twenty-five years has changed the grade of the land over which they run, so that the direction of the surface drainage has been changed. It does not distinctly appear that the water would not come down and flood the plaintiff’s land to the same extent if there were no streets there. Whether a change of the surface of land by a private owner in such a way as to change the direction of surface drainage, and materially to increase the discharge of water upon the plaintiff’s land, would be actionable in any conceivable case, unless the discharge was through an artificial channel, we need not consider. So far as we are aware, no case has arisen' in this Commonwealth in which such a liability has been enforced where the channel of discharge was not definite. Morrill v. Hurley, 120 Mass. 99. Curtis v. Eastern Railroad, 98 Mass. 428, 431. Assuming that some street gutters might be found by a jury to constitute artificial channels, (see Manning v. Lowell, 130 Mass. 21, 24,) it does not appear that the gutters in question amounted to such channels, or that they brought down more water than the streets would have brought without them. If the liability of the defendant city stood on the same footing as that of a private landowner, the plaintiff could not recover on [198] the case stated without further inferences of fact. But there are other defences peculiar to cities and towns. So far as appears, the damage, if either caused or enhanced by the streets, is the immediate consequence of the original laying out. It always has been stated and assumed, that in such cases, when the city was acting within the authority of the statute, the only remedy was under the statute. The plaintiff suggests that his land is not adjoining the highway. The right to compensation under the Pub. Sts. c. 49, §§ 68, 79, is not confined in terms to owners of land adjoining the highway, as it is in c. 52, § 15. Jamaica Pond Aqueduct v. Brookline, 121 Mass. 5. It would be going pretty far to deny compensation for damage which could be recovered for if caused by a private person. But we shall not undertake to construe tbe statute until we find it necessary to do so, beyond saying that it has been intimated that compensation might be recovered under it for damage of this character, ■ and that, so far as we know, it never has been decided that the right, whatever it may be, depended upon the lands touching the highway. Flagg v. Worcester, 13 Gray, 601, 603. If a city or town is ever liable to an action for injury done to a landholder by diverting surface water and causing it to flow upon his land when it is done in constructing or repairing a highway, there is nothing stated sufficient to distinguish the case at bar from Flagg v. Worcester, 13 Gray, 601, 602, and Turner v. Dartmouth, 13 Allen, 291, 293, explained in Emery v. Lowell, 104 Mass. 13, 16; Brayton v. Fall River, 113 Mass. 218, 226; Kennison v. Beverly, 146 Mass. 467; Benjamin v. Wheeler, 8 Gray, 409, and 15 Gray, 486. See also Bates v. Westborough, ante, 174. With regard to the drain in the highway, the entrance to which sometimes was stopped up, it follows from what we have said that there is no duty to the plaintiff shown to keep it open. Furthermore, it does not appear that, if open, it would have prevented the overflowing of the plaintiff’s land, or that the public duty of keeping it clear did not belong to public officers like highway surveyors, for whom the defendant is not responsible. Judgment for the defendant.