Holmes, J.
These are two actions of tort, depending upon the same state of facts, to recover for the overflowing of the plaintiffs’ land with water from the defendant’s drain, and set back in the plaintiffs’ drain. There was evidence tending to [180]*180show the following facts, which we assume to be true for the purposes of this decision.
The plaintiffs had gained a prescriptive right to discharge water from their land by a drain to a culvert running under Brigham Street, the Boston and Albany Railroad, and beyond, the water being carried from the farther side, of late years, by a box drain. There is a system of drains under different highways converging into one under Brigham Street, which also discharges through the same culvert. Some at least of these drains, including that through Brigham Street, were built by the defendant town, and belonged to it, and the town had a right to discharge through the culvert. The box drain on the other side of the culvert was built by the town upon land of one Smith, under a lease or license granted for a nominal sum. The lease expired more than six years before the date of the writs. But the box drain remained, and received the drainage as before, of which it was the necessary outlet. Smith did not object, but, it seems, had further negotiations with the town which have resulted in the building of a new drain since these actions were brought. The effect of the system of drainage was to bring down and to discharge through the culvert more water, and to discharge it more rapidly, than otherwise would have been the case. Within six years before the date of the writs, the culvert had been filled up more or less, the box drain had failed at times to discharge the water freely, and the drain on the plaintiffs’ side of the culvert had become filled up. From some or all of these causes, the plaintiffs’ land was flowed as alleged. The plaintiffs got verdicts under instructions allowing them to recover if the town had failed to use reasonable precautions in keeping the culvert free from obstructions, or had been guilty of negligence in maintaining a box drain of too small size, or in improperly constructing or negligently maintaining other drains that by themselves or in connection with the culvert made a faulty arrangement for disposing of the surface water, and thus had caused the damage.
These, we believe, are the only facts needing mention. The plaintiffs went to the jury on the eighth count alone, which made some of the defendant’s requests for rulings immaterial, and we cannot adopt the defendant’s construction of a further [181]*181remark to the jury, upon which he bases an important part of his argument. The jury were told, that, if they should find that not all the acts alleged in the eighth count operated to produce injury, but that some of them did, they could still find on that count in favor of the plaintiffs. We think that this was not intended, and could not have been understood, to mean that any one act alleged would be sufficient, but simply re-enforced what had been said already, and meant that less than all the acts alleged would be enough if the facts found by the jury satisfied the conditions of liability which had just been stated to them in detail.
If a private landowner collects surface water into a definite artificial channel, and discharges it upon his neighbor’s land, he is liable to an action. White v. Chapin, 12 Allen, 516, 520. Curtis v. Eastern Railroad, 98 Mass. 428, 431. Rathke v. Gardner, 134 Mass. 14, 16. Jackman v. Arlington Mills, 137 Mass. 277, 283. Cassidy v. Old Colony Railroad, 141 Mass. 174, 179. And when the defendant would be liable for a direct discharge, we apprehend that he would be liable also if the water should, be deflected upon the plaintiff’s land by an obstacle to its direct course, in case the defendant either set up that obstacle, or negligently allowed it to remain when he ought to remove it.
We think, also, that it would not matter that some water would reach the obstacle if the defendant’s drain were not there, provided the drain brings down more than otherwise would come, and causes the flooding of the plaintiff’s land by this excess. Curtis v. Eastern Railroad, 98 Mass. 428, 431. Again, the ordinary liability of a tortfeasor who should stop a drain belonging to the plaintiff would exist if hfe should stop that drain by causing an otherwise lawful discharge of water into the outlet of the plaintiff’s drain, the water thus discharged acting as a dam or obstacle to the plaintiff’s water.
A town has no prerogative to flood the lands or to stop the drains of other landowners without paying for it, and if it does so without authority of law it is liable to an action of tort. Hill v. Boston, 122 Mass. 344, 358. See Hitchins v. Frostburg, 68 Md. 100.
It is true that a town is not liable for interrupting the flow of [182]*182surface water, or for discharging or turning surface water upon adjoining land to a considerable extent, if not through a definite channel, but this is because no landowner is liable for doing so. Emery v. Lowell, 104 Mass. 18, 16, 17, explaining Barry v. Lowell, 8 Allen, 128, and Turner v. Dartmouth, 13 Allen, 291. See Gannon v. Hargadon, 10 Allen, 106 ; Franklin v. Fisk, 13 Allen, 211; Bates v. Smith, 100 Mass. 181; Morrill v. Hurley, 120 Mass. 99. So a town is not liable to an action at common law for acts which are done under a statute, for instance, in the repair of highways, or, it seems, in the construction of sewers, for which the statute provides a remedy by petition. Emery v. Lowell, ubi supra, explaining Flagg v. Worcester, 13 Gray, 601. Manning v. Lowell, 130 Mass. 21, 22. Nealley v. Bradford, 145 Mass. 561. See Hull v. Westfield, 133 Mass. 433; Perry v. Worcester, 6 Gray, 544; Benjamin v. Wheeler, 8 Gray, 409, and 15 Gray, 486.
But the case is different when a city or town has caused the plaintiff’s land to be flowed in a way which would be actionable as against a private person, and which cannot be taken to have been contemplated by the statute under which it acts, or to have been paid for by the compensation allowed in respect of the original scheme. Thus, in the instance of sewers, it is settled that, if the plaintiff can prove that the injury was caused by the negligence of the city, either in the original construction of the sewer, or in not keeping it free from obstructions, he may maintain an action against the city. Emery v. Lowell, 104 Mass. 13, 17. Merrifield v. Worcester, 110 Mass. 216, 221. Murphy v. Lowell, 124 Mass. 564. Tindley v. Salem, 137 Mass. 171, 172. Stanehfield v. Newton, 142 Mass. 110, 115. Child v. Boston, 4 Allen, 41, 52. So,- ,if by a system of drains a city artificially diverts surface water from its natural course, and accumulates it upon the plaintiff’s land in such quantities as to create a private nuisance, it may be liable to an action. Manning v. Lowell, 130 Mass. 21, 25. Brayton v. Fall River, 113 Mass. 218, 226. So if it negligently fails to keep a culvert under a highway in such condition as not to obstruct a natural stream. Parker v. Lowell, 11 Gray, 358.
Emery v. Lowell,
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Holmes, J.
These are two actions of tort, depending upon the same state of facts, to recover for the overflowing of the plaintiffs’ land with water from the defendant’s drain, and set back in the plaintiffs’ drain. There was evidence tending to [180]*180show the following facts, which we assume to be true for the purposes of this decision.
The plaintiffs had gained a prescriptive right to discharge water from their land by a drain to a culvert running under Brigham Street, the Boston and Albany Railroad, and beyond, the water being carried from the farther side, of late years, by a box drain. There is a system of drains under different highways converging into one under Brigham Street, which also discharges through the same culvert. Some at least of these drains, including that through Brigham Street, were built by the defendant town, and belonged to it, and the town had a right to discharge through the culvert. The box drain on the other side of the culvert was built by the town upon land of one Smith, under a lease or license granted for a nominal sum. The lease expired more than six years before the date of the writs. But the box drain remained, and received the drainage as before, of which it was the necessary outlet. Smith did not object, but, it seems, had further negotiations with the town which have resulted in the building of a new drain since these actions were brought. The effect of the system of drainage was to bring down and to discharge through the culvert more water, and to discharge it more rapidly, than otherwise would have been the case. Within six years before the date of the writs, the culvert had been filled up more or less, the box drain had failed at times to discharge the water freely, and the drain on the plaintiffs’ side of the culvert had become filled up. From some or all of these causes, the plaintiffs’ land was flowed as alleged. The plaintiffs got verdicts under instructions allowing them to recover if the town had failed to use reasonable precautions in keeping the culvert free from obstructions, or had been guilty of negligence in maintaining a box drain of too small size, or in improperly constructing or negligently maintaining other drains that by themselves or in connection with the culvert made a faulty arrangement for disposing of the surface water, and thus had caused the damage.
These, we believe, are the only facts needing mention. The plaintiffs went to the jury on the eighth count alone, which made some of the defendant’s requests for rulings immaterial, and we cannot adopt the defendant’s construction of a further [181]*181remark to the jury, upon which he bases an important part of his argument. The jury were told, that, if they should find that not all the acts alleged in the eighth count operated to produce injury, but that some of them did, they could still find on that count in favor of the plaintiffs. We think that this was not intended, and could not have been understood, to mean that any one act alleged would be sufficient, but simply re-enforced what had been said already, and meant that less than all the acts alleged would be enough if the facts found by the jury satisfied the conditions of liability which had just been stated to them in detail.
If a private landowner collects surface water into a definite artificial channel, and discharges it upon his neighbor’s land, he is liable to an action. White v. Chapin, 12 Allen, 516, 520. Curtis v. Eastern Railroad, 98 Mass. 428, 431. Rathke v. Gardner, 134 Mass. 14, 16. Jackman v. Arlington Mills, 137 Mass. 277, 283. Cassidy v. Old Colony Railroad, 141 Mass. 174, 179. And when the defendant would be liable for a direct discharge, we apprehend that he would be liable also if the water should, be deflected upon the plaintiff’s land by an obstacle to its direct course, in case the defendant either set up that obstacle, or negligently allowed it to remain when he ought to remove it.
We think, also, that it would not matter that some water would reach the obstacle if the defendant’s drain were not there, provided the drain brings down more than otherwise would come, and causes the flooding of the plaintiff’s land by this excess. Curtis v. Eastern Railroad, 98 Mass. 428, 431. Again, the ordinary liability of a tortfeasor who should stop a drain belonging to the plaintiff would exist if hfe should stop that drain by causing an otherwise lawful discharge of water into the outlet of the plaintiff’s drain, the water thus discharged acting as a dam or obstacle to the plaintiff’s water.
A town has no prerogative to flood the lands or to stop the drains of other landowners without paying for it, and if it does so without authority of law it is liable to an action of tort. Hill v. Boston, 122 Mass. 344, 358. See Hitchins v. Frostburg, 68 Md. 100.
It is true that a town is not liable for interrupting the flow of [182]*182surface water, or for discharging or turning surface water upon adjoining land to a considerable extent, if not through a definite channel, but this is because no landowner is liable for doing so. Emery v. Lowell, 104 Mass. 18, 16, 17, explaining Barry v. Lowell, 8 Allen, 128, and Turner v. Dartmouth, 13 Allen, 291. See Gannon v. Hargadon, 10 Allen, 106 ; Franklin v. Fisk, 13 Allen, 211; Bates v. Smith, 100 Mass. 181; Morrill v. Hurley, 120 Mass. 99. So a town is not liable to an action at common law for acts which are done under a statute, for instance, in the repair of highways, or, it seems, in the construction of sewers, for which the statute provides a remedy by petition. Emery v. Lowell, ubi supra, explaining Flagg v. Worcester, 13 Gray, 601. Manning v. Lowell, 130 Mass. 21, 22. Nealley v. Bradford, 145 Mass. 561. See Hull v. Westfield, 133 Mass. 433; Perry v. Worcester, 6 Gray, 544; Benjamin v. Wheeler, 8 Gray, 409, and 15 Gray, 486.
But the case is different when a city or town has caused the plaintiff’s land to be flowed in a way which would be actionable as against a private person, and which cannot be taken to have been contemplated by the statute under which it acts, or to have been paid for by the compensation allowed in respect of the original scheme. Thus, in the instance of sewers, it is settled that, if the plaintiff can prove that the injury was caused by the negligence of the city, either in the original construction of the sewer, or in not keeping it free from obstructions, he may maintain an action against the city. Emery v. Lowell, 104 Mass. 13, 17. Merrifield v. Worcester, 110 Mass. 216, 221. Murphy v. Lowell, 124 Mass. 564. Tindley v. Salem, 137 Mass. 171, 172. Stanehfield v. Newton, 142 Mass. 110, 115. Child v. Boston, 4 Allen, 41, 52. So,- ,if by a system of drains a city artificially diverts surface water from its natural course, and accumulates it upon the plaintiff’s land in such quantities as to create a private nuisance, it may be liable to an action. Manning v. Lowell, 130 Mass. 21, 25. Brayton v. Fall River, 113 Mass. 218, 226. So if it negligently fails to keep a culvert under a highway in such condition as not to obstruct a natural stream. Parker v. Lowell, 11 Gray, 358.
Emery v. Lowell, and the cases following it, have re-enforced the distinction established in Child v. Boston, that while no [183]*183action lies for a defect or want of sufficiency in the plan or system of drainage adopted in the exercise of a quasi judicial discretion, under powers specially conferred by statute, the duty of keeping the common sewers in repair and free from obstructions after they have been constructed and have become the property of the city under such authority, is a ministerial duty, for neglect of which the city is liable to any person injured. The same is true of the duty actually to construct them with reasonable care and skill. And there is no difference in these duties whether the city has acquired the right to maintain the sewer by prescription, or has laid it under the statute. See Gould v. Boston, 120 Mass. 300, 306; Phelps v. Mankato, 23 Minn. 276, 279 ; Bradbury v. Benton, 69 Maine, 194.
It was not intended to overrule or to modify the well settled rule which we have stated, by the decision in Kennison v. Beverly, 146 Mass. 467. In that case the damage was caused by percolation from a catch-basin, which seems to have been incident only to an open gutter by the side of the highway. Assuming that there was evidence for the jury that there was such an artificial accumulation of water as to fall within the cases of White v. Chapin and Manning v. Lowell, and that the trouble was due to negligence in construction rather than to the plan adopted, still it may be that the town was not liable, in the absence of such evidence that it did the woi*k as was found in Deane v. Randolph, 132 Mass. 475, Waldron v. Haverhill, 143 Mass. 582, and Doherty v. Braintree, 148 Mass. 495, 497. It may be that defects in such a catch-basin are to be regarded as defects in surface drainage within the limits of the highway, and therefore as defects in the repair of the highway, the charge of which is committed by statute to the highway surveyors. Highway surveyors in the performance of their statutory duties are held to be public officers, and not agents of the town, partly because of the town’s want of control over them, and partly because the duty to repair the surface of highways is regarded as a public duty, from which the town derives no special advantage in its corporate capacity. Walcott v. Swampscott, 1 Allen, 101. Barney v. Lowell, 98 Mass. 570, 571. Tindley v. Salem, 137 Mass. 171, 174. Blanchard v. Ayer, 148 Mass. 174, 176. For these and perhaps other reasons, it is held that towns are [184]*184not liable for defects in such repair apart from statute, except in such cases as we have mentioned. White v. Phillipston, 10 Met. 108, 110. Bigelow v. Randolph, 14 Gray, 541, 543. Oliver v. Worcester, 102 Mass. 489, 499. Hill v. Boston, 122 Mass. 344, 350. It seems that this irresponsibility is not confined to nonfeasance or to damage in the highway to persons travelling there, but extends to cases of misfeasance, — see Walcott v. Swampscott, 1 Allen, 101; Tindley v. Salem, 137 Mass. 171; Manners v. Haverhill, 135 Mass. 165, — and to injury to persons or property outside of the highway. Holman v. Townsend, 13 Met. 297. Smith v. Dedham, 8 Cush. 522. See Benjamin v. Wheeler, and Turner v. Dartmouth, ubi supra ; Brailey v. Southborough, 6 Cush. 141.
But it is settled by the cases which we have cited (Emery v. Lowell, etc.) that there is no such immunity with regard to sewers and main drains. These belong to the cities and towns by statute; Pub. Sts. c. 50, §1; and although the road commissioners, who are given authority to maintain them by the same section, are probably no more the agents of the town than highway surveyors, when exercising highway surveyors’ duties, (Barney v. Lowell, ubi supra; Nealley v. Bradford, 145 Mass. 561, 564.) still perhaps they have'not so exclusive an authority over sewers, and at all events the interest of the towns in the sewers is so distinct from that of the public at large that they are held with reason to the ordinary responsibilities of owners. See further Oliver v. Worcester, 102 Mass. 489, 500 ; Haskell v. New Bedford, 108 Mass. 208 ; Hand v. Brookline, 126 Mass. 324.
A further objection is taken by the defendant with regard to the box drain, that a tenant is not liable to third persons for damage subsequently caused by a structure lawfully erected, and simply left by him upon his landlord’s premises after the expiration of his lease. We certainly are not disposed to deny that proposition when the circumstances are such that the tenant may be held to have abandoned the structure, and the landlord may be held to maintain it. Blunt v. Aikin, 15 Wend. 522. Waggoner v. Jermaine, 3 Denio, 306. See Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49. But the tenant’s liability will continue if he still maintains the structure; and in a case like this, the question whether he does so or not will depend upon [185]*185evidence which necessarily is slight, so far as it is drawn from subsequent acts. If the town abandoned the drain, natural causes would still carry water through it as before; if it maintained it, there was nothing in particular for the town to do, unless the drain should need repairs.
Perhaps the strongest evidence is found in the original transaction. Whether the leave to maintain the drain for five years given by Smith was a lease or a license, it is very plain that the limit of five years was fixed simply in order to preserve rights. Neither party can have expected that the drain was to be given up at the end of that time.' The case is wholly different from the ordinary one of a tenant leaving a fixture. The same need which led to the agreement was likely to continue, and it would seem from the report adopted by the town that already the box drain was the necessary outlet of the system of drains and sewers belonging to the town heretofore mentioned. It is a fair inference, that what should be done later was left to further negotiations, which seem from the vote of November 8, 1887, to have been had, and to have been successful. So far as the town added to its system of drains, it showed its intention to continue to use the box drain. It did continue, in fact, to discharge the water from that system through the box drain, and it negotiated with Smith, as we have said.
There was ample evidence that the town used the box drain after the five years. What would be the liability for bringing down water against an obstacle not under the defendant’s control under circumstances otherwise like the present? we need not .consider. Any insufficiency that there may have been in the drain seems to have been due to negligence in its construction or maintenance, not to a defect in the original plan. See Hill v. Boston, 122 Mass. 344, 375; Perry v. Worcester, 6 Gray, 544, 547.
Exceptions overruled.