Inhabitants of Middlefield v. Church Mills Knitting Co.

Holmes, J. This is an action to recover the amount of damages which the plaintiff has been compelled to pay in consequence of a breach of a duty alleged to rest primarily on the defendant. The declaration is not in covenant, to speak in terms of the old forms of action, but in assumpsit, on the principle of Lowell v. Spaulding, 4 Cush. 277, Woburn v. Henshaw, 101 Mass. 193, and other cases of that class. The mode in which the defendant’s duty originated, whether by prescription, (Regina v. Bucknall, 2 Ld. Raym. 804, Bac. Abr. Highways (E), Angell & D. Highways, § 255,) or by grant or covenant having the effect of a grant, (Bronson v. Coffin, 108 Mass. 175, Norcross v. James, 140 Mass. 188, 190, Ladd v. Boston, 151 Mass. 585, 588,) or otherwise, (Perley v. Chandler, 6 Mass. 454, 457, 458, Lowell v. Proprietors of Locks & Canals, 104 Mass. 18,) is one step more remote than when the declaration is on the covenant directly. However it might be in the latter case, we are of opinion that the duty is sufficiently alleged for the purposes of the case at bar. See Bernard v. Cafferty, 11 Gray, 10, 11; form of declaration for obstructing way, Pub. Sts. c. 167, § 94. It is true that, in order to overrule the demurrer, we have to assume the possibility that the defendant might be bound as assign and tenant of a quasi servient estate to perform an active duty created by its predecessor in title; but in view of the foregoing and other decisions we are not prepared to deny that it might be bound in law or in equity so far as to make it liable to indemnify the plaintiff to the extent of simple damages. It is true that, in general, active duties cannot be attached to land, and that affirmative covenants only bind the covenantor, his heirs, executors, and administrators. But there are some exceptions, and most conspicuous among them is the obligation to repair fences and highways. We do not deem it advisable to discuss the law in detail until the facts shall appear more ex 272 actly than they do at present. If such a duty can be attached to land, then, although ordinarily the corresponding right could not exist in gross, yet in the case of a way which a town is bound to keep in repair for the benefit of the public, the town is the natural and convenient protector of the obligation, and, being immortal and locally fixed, may enforce a covenant originally made to it without being shown to be strictly the owner of the highway as a quasi dominant estate, just as, conversely, a local corporation was bound to the terre-tenant to perform active services in Pakenham's case, Y. B. 42 Ed. III. 3, pl. 14. Demurrer overruled.