Holleran v. City of Boston

Hammond, J. The plaintiffs in these actions of tort seek to hold the defendant answerable in damages for changes in the flow of surface water caused by certain acts of the park commissioners and of the defendant, and also for discharging the contents of an old cellar drain from the Gleason house within the park limits. 1. As to the changes caused by the park commissioners. Under St. 1875, c. 185, § 3, these commissioners are authorized to take land in fee for park purposes, and to lay out and improve the same; and by the fifth section a remedy is given to all persons who sustain damages by the taking of land or “by other acts ” of the commissioners. There is nothing in the evidence offered by the plaintiffs to .warrant a finding that, in making the changes within the park, the commissioners exceeded their authority. It is therefore too plain for discussion that the remedy for damages thus' caused is by proceedings under the statute and not by an action of tort. As to the drainage of the house, it does not appear that such drainage appreciably affected the quantity or quality of the water in [77] the brook. See Bainard v. Newton, 154 Mass. 255, and cases cited. 2. As to the disposition of the surface water by changes within the limits of the highway. The drains and catch-basins were for the purpose of aiding in removing the surface water from the highway, and there is nothing in the evidence offered by the plaintiffs to show that they were not properly constructed. It is well settled in this Commonwealth that, if a town in the performance of its duty to keep a highway safe and convenient for travel diverts the surface water upon the neighboring land, it is not answerable in tort; and this is the rule even where the water is gathered into artificial channels before passing from the highway or where it is drained into a watercourse. The remedy is under the statute. Flagg v. Worcester, 13 Gray, 601. Turner v. Dartmouth, 13 Allen, 291. Kennison v. Beverly, 146 Mass. 467, and cases cited. We are of the opinion that these cases are governed by the principles above declared, and that they are clearly distinguish-' able from Emery v. Lowell, 104 Mass. 13; Boston Rolling Mills v. Cambridge, 117 Mass. 396; Manning v. Lowell, 130 Mass. 21; Bates v. Westborough, 151 Mass. 174, and other similar cases upon which the plaintiffs rely. Exceptions overruled.