The opinion of the court was delivered by
Poland, Ch. J.
The plaintiff claimed that the water was prevented from passing off through the culvert under the highway or street, and caused to overflow his land and building, in part by reason of earth sliding down the embankment which constituted the highway over the culvert, and in part by the fill made by the railroad company in the ravine below where it was crossed by the street. The defendant claimed that the obstruction of the passage of water [359]*359through the culvert, and the consequent flooding the plaintiff’s land and building, was wholly caused by the filling of the ravine below by the railroad company. The court instructed the jury that if the culvert was stopped in either of these ways, and the water caused to flow back to the injury of the plaintiff, he would be entitled to recover therefor against the town, if the town failed to remove such obstruction within a reasonable time after notice.
The correctness of these instructions is now before this court for revision.
And first, as to the obstruction of the culvert by the act of the town, or the street commissioners, by allowing the earth to slide down the embankment of the highway or street and cover the mouth of the culvert, at the upper end. The statute provides that “ All highways shall be laid out, made, and repaired, and all damages of lands shall he paid, at the expense of the several towns in which they are located.” This we consider equivalent to saying that the several towns shall build and keep in repair the highways within such towns, and that the building, and keeping such highways in repair are to be regarded as strictly corporate duties devolved upon towns. The only statute liability upon towns for neglecting to keep their highways in sufficient repair, has been held to apply only to persons who have sustained some special damage by reason of such want of repair while they were using the highway as such.
It is claimed that the liability thus imposed by statute is the only liability under which towns stand to persons who suffer-special injury by reason of the neglect of the town to build their highways properly, and to keep them in proper repair. But we are of opinion that the corporate duty to build and keep in repair their highways imposes upon towns certain obligations very like those existing between the owners of adjoining lands. By the legal establishment of a highway over or through the land of the owner, the public acquire no right or interest in the soil, but only the easement to construct a way for travel upon it, and to use the way for all such part of the community as may choose to pass over it. But for this purppse the public must have the control and possession of the land thus converted into a highway, and under our political divisions of the state, the legal right or interest which the public have in the highway, is [360]*360in the town where it is situate. Such town must build the road, keep it in repair, if it is obstructed, open it, and if it is injured or •destroyed by any person, they are the party entitled to redress and compensation.
In the case of an individual owner of a strip of land of suitable width for a highway, who should build a road upon it, he would by ordinary legal principles be bound to do it in a prudent and reasonable manner, and so as to avoid doing any unnecessary damage to persons owning lands adjoining. And so if such person had occasion to build his road over a natural stream or watercourse, the law would require him to provide some suitable and sufficient means for the passage of the water so that the adjoining proprietors should not suffer damage by its being obstructed. Substantially the same obligations to the owners of lands adjacent to the highway we consider are devolved upon towns in the building and maintaining their roads. In Massachusetts it has been settled in repeated cases, and is now the undisputed law of that state, that in all cases where a highway, turnpike, bridge, town way or other way, is laid across a natural stream of water, it is the duty of those who use such franchise or privilege, to make provision by open bridges, culverts, or other means for the free passage of the water, so that it shall not be obstructed and pent up to flow back on lands belonging to the riparian proprietors. And it is their duty not only to make such bridge, culvert or passage for water, but to keep it in such condition that it shall not obstruct the stream. Rover v. Granite Bridge, 21 Pick. 344; Lawrence v. Fairhaven, 5 Gray, 116; Perry v. Worcester, 6 Gray, 544; Parker v. Lowell, 11 Gray, 353, and in several other cases. But in Massachusetts, no statute exists imposing any such duty specifically upon towns, any more than in this state. In the multitude of cases called to our notice on the argument we have discovered none denying such duty and liability upon towns.
And a contrary doctrine allowing towns to dam up and obstruct running streams by their highways, to the great injury, and perhaps absolute ruin of the adjoining owners, without compensation or liability, would be too monstrously unjust to be tolerated for a moment, and the unvarying practice and usage on the subject since the state was settled, show how the law has always been understood.
[361]*361If anything more- was needed on this point, the careful provisions of our statute, providing that before the course of any stream shall be changed for the accommodation of a highway, notice shall be given and, compensation made for all damages thereby occasioned, are ample to show how the rights of the public, and of individuals, are understood relative to those rights to the natural flow of water. When the highway or street in question was built, a culvert of ample dimensions was placed under it, which for many years sufficed for the passage of all the water through it. The plaintiff’s testimony tended to show that by the action of the highway surveyors, and street commissioners of the town, from year to year, in raising the grade of the street over the culvert, the earth washed and slid down so as to enlarge the base of the embankment so much as to finally cover the mouth of the culvert and prevent the water from passing through. It is contended for the town that for any obstruction of the culvert thus caused, the town is not responsible, upon the ground that what was thus done by the highway surveyors and street commissioners, was done by them in the exercise of their official duty as public officers, whose appointment and duties are regulated by .general laws, and that they were not the agents of the town in any such sense as to make the town liable for any damages caused by their negligence in the manner of performing their duty.
We are not prepared to hold that such officers in the performance of their official duty, do sustain to the town the ordinary relation of private agents to a principal, so that the town would be liable to any person who might be injured by their acts of negligence committed in the performance of their duty. For instance, if a highway surveyor in repairing a road in pursuance of his general legal duty, should negligently and carelessly undermine a wall or building, we think the town could hardly be made liable to an action therefor. But in the present case there hardly seems to have been any negligent act by any of these officers. The raising and widening of the street is conceded to have been proper, and it does not seem that the immediate consequence was that the culvert was thereby stopped.
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The opinion of the court was delivered by
Poland, Ch. J.
The plaintiff claimed that the water was prevented from passing off through the culvert under the highway or street, and caused to overflow his land and building, in part by reason of earth sliding down the embankment which constituted the highway over the culvert, and in part by the fill made by the railroad company in the ravine below where it was crossed by the street. The defendant claimed that the obstruction of the passage of water [359]*359through the culvert, and the consequent flooding the plaintiff’s land and building, was wholly caused by the filling of the ravine below by the railroad company. The court instructed the jury that if the culvert was stopped in either of these ways, and the water caused to flow back to the injury of the plaintiff, he would be entitled to recover therefor against the town, if the town failed to remove such obstruction within a reasonable time after notice.
The correctness of these instructions is now before this court for revision.
And first, as to the obstruction of the culvert by the act of the town, or the street commissioners, by allowing the earth to slide down the embankment of the highway or street and cover the mouth of the culvert, at the upper end. The statute provides that “ All highways shall be laid out, made, and repaired, and all damages of lands shall he paid, at the expense of the several towns in which they are located.” This we consider equivalent to saying that the several towns shall build and keep in repair the highways within such towns, and that the building, and keeping such highways in repair are to be regarded as strictly corporate duties devolved upon towns. The only statute liability upon towns for neglecting to keep their highways in sufficient repair, has been held to apply only to persons who have sustained some special damage by reason of such want of repair while they were using the highway as such.
It is claimed that the liability thus imposed by statute is the only liability under which towns stand to persons who suffer-special injury by reason of the neglect of the town to build their highways properly, and to keep them in proper repair. But we are of opinion that the corporate duty to build and keep in repair their highways imposes upon towns certain obligations very like those existing between the owners of adjoining lands. By the legal establishment of a highway over or through the land of the owner, the public acquire no right or interest in the soil, but only the easement to construct a way for travel upon it, and to use the way for all such part of the community as may choose to pass over it. But for this purppse the public must have the control and possession of the land thus converted into a highway, and under our political divisions of the state, the legal right or interest which the public have in the highway, is [360]*360in the town where it is situate. Such town must build the road, keep it in repair, if it is obstructed, open it, and if it is injured or •destroyed by any person, they are the party entitled to redress and compensation.
In the case of an individual owner of a strip of land of suitable width for a highway, who should build a road upon it, he would by ordinary legal principles be bound to do it in a prudent and reasonable manner, and so as to avoid doing any unnecessary damage to persons owning lands adjoining. And so if such person had occasion to build his road over a natural stream or watercourse, the law would require him to provide some suitable and sufficient means for the passage of the water so that the adjoining proprietors should not suffer damage by its being obstructed. Substantially the same obligations to the owners of lands adjacent to the highway we consider are devolved upon towns in the building and maintaining their roads. In Massachusetts it has been settled in repeated cases, and is now the undisputed law of that state, that in all cases where a highway, turnpike, bridge, town way or other way, is laid across a natural stream of water, it is the duty of those who use such franchise or privilege, to make provision by open bridges, culverts, or other means for the free passage of the water, so that it shall not be obstructed and pent up to flow back on lands belonging to the riparian proprietors. And it is their duty not only to make such bridge, culvert or passage for water, but to keep it in such condition that it shall not obstruct the stream. Rover v. Granite Bridge, 21 Pick. 344; Lawrence v. Fairhaven, 5 Gray, 116; Perry v. Worcester, 6 Gray, 544; Parker v. Lowell, 11 Gray, 353, and in several other cases. But in Massachusetts, no statute exists imposing any such duty specifically upon towns, any more than in this state. In the multitude of cases called to our notice on the argument we have discovered none denying such duty and liability upon towns.
And a contrary doctrine allowing towns to dam up and obstruct running streams by their highways, to the great injury, and perhaps absolute ruin of the adjoining owners, without compensation or liability, would be too monstrously unjust to be tolerated for a moment, and the unvarying practice and usage on the subject since the state was settled, show how the law has always been understood.
[361]*361If anything more- was needed on this point, the careful provisions of our statute, providing that before the course of any stream shall be changed for the accommodation of a highway, notice shall be given and, compensation made for all damages thereby occasioned, are ample to show how the rights of the public, and of individuals, are understood relative to those rights to the natural flow of water. When the highway or street in question was built, a culvert of ample dimensions was placed under it, which for many years sufficed for the passage of all the water through it. The plaintiff’s testimony tended to show that by the action of the highway surveyors, and street commissioners of the town, from year to year, in raising the grade of the street over the culvert, the earth washed and slid down so as to enlarge the base of the embankment so much as to finally cover the mouth of the culvert and prevent the water from passing through. It is contended for the town that for any obstruction of the culvert thus caused, the town is not responsible, upon the ground that what was thus done by the highway surveyors and street commissioners, was done by them in the exercise of their official duty as public officers, whose appointment and duties are regulated by .general laws, and that they were not the agents of the town in any such sense as to make the town liable for any damages caused by their negligence in the manner of performing their duty.
We are not prepared to hold that such officers in the performance of their official duty, do sustain to the town the ordinary relation of private agents to a principal, so that the town would be liable to any person who might be injured by their acts of negligence committed in the performance of their duty. For instance, if a highway surveyor in repairing a road in pursuance of his general legal duty, should negligently and carelessly undermine a wall or building, we think the town could hardly be made liable to an action therefor. But in the present case there hardly seems to have been any negligent act by any of these officers. The raising and widening of the street is conceded to have been proper, and it does not seem that the immediate consequence was that the culvert was thereby stopped. That was produced by the effect of the elements upon the embankment, causing the earth to wash and slide down and gradually to enlarge the width of the embankment at the base, until the .opening of [362]*362the culvert was covered. The real ground of difficulty appears in not having extended the length of the culvert to correspond with the increased width of the embankment. It seems at least very doubtful, whether in any thing that was done by those officers there was any such unlawful or negligent conduct whereby the plaintiff was injured, as would have made them liable. But if there was, and the culvert was thereby obstructed, and the town neglected after reasonable notice to remove the difficulty, we are of opinion they would be liable, upon the ground already stated, that it is as much their duty to keep and maintain a sufficient passage for a natural stream, as to provide for it, when they originally made the road. And so if their officers neglected to extend the culvert to correspond with the increased width of the embankment, it was the duty of the town to cause it to be done by some other means.
Upon the facts which the plaintiff claimed to have established in reference to this part of the case the court below correctly held that the town were liable to the plaintiff for the damages thereby caused.
The town claimed that the plaintiff’s damages were wholly caused by the act of the railroad company in filling up the ravine below the street. The plaintiff conceded that his damages were in part produced by this act of the railroad company. Were the town properly held liable for the damages thus caused ? The railroad company had filled the ravine below for twenty rods in length to a great depth. But the railroad company owned the land, and had a lawful right thus to fill it up, provided they secured proper means for the proper escape of the water that had its natural channel down the bottom of the ravine. To do this the company extended for the whole distance under their deep fill, a wooden culvert connected with the stone culvert under the highway, through which the water passed off. But this culvert being made of perishable materials, decayed and fell in, so that the embankment became a solid one, and no passage was left for the water. The inevitable effect of this was to prevent the water from flowing through the culvert under the highway, and apparently this must have been the great cause of the damage sustained by the plaintiff. The court held that it was the duty of the town to remove the obstruction thus created, and restore the natural flow of the water through the culvert- under the highway.
[363]*363"We are not prepared to say but that if au obstruction to the passage of the water through the town culvert had been placed in it by a third person, without the knowledge of the town or its officers or agents, that the town might not be liable for the damages caused by such obstruction, after they had notice of it, and a reasonable time to remove it. But the railroad company had made this extensive deposit of earth on their own land, and by allowing their culvert to become destroyed, it stood the same as if they had made no culvert originally. It is impossible for us to see upon what legal or just ground the town can be called upon to remove this fill upon the land of the railroad company, or to maintain a culvert under it. If the railroad company had erected a dam across the ravine ten or twenty rods below the street, and thereby raised the water so as to flow back through the culvert upon the plaintiff’s land it would have been the same thing, but it would hardly be claimed the town would be bound to remove the dam or be answerable to the plaintiff for the consequences of it. The plaintiff’s claim as to this, is much like allowing the land owner, whose land is flowed by a dam improperly erected, to recover his damages of an intervening owner between his land and the dam. The plaintiff has as much right, and is as much bound, to proceed against the railroad company to remove the obstruction, as the town, and the remedy is as ample to him, as to the town. Nor can we see why the railroad obstruction would uot be equally injurious to the plaintiff if the town road and culvert were not in existence. The act or neglect of the railroad company in stopping the flow of the water of the stream was unlawful as to the town, and unlawful as to the plaintiff, and either was entitled to a remedy against them for any damage caused by it, but we do not see how it was any more the fault of the town, than of the plaintiff. See Peck v. Ellsworth, 36 Maine, 393.
As to this branch of the case we think the direction of the court was erroneous.
The rejection of the evidence as to the Benns house walls having cracked by the action of the frost, was correct. If the evidence of the action of the frost on the walls of other buildings was admissible at all, it does not appear that the location and surrounding conditions of these two buildings were so similar that one would be any fair [364]*364test for the other. The point now made as to the division of the damages between those occuring before and those after, the expiration of a reasonable time to remove the obstruction, does not appear to have been made at all in the trial, so that if there was any ground to ask it (which seems very doubtful) it is too late to make it here. The charge on the subject of damages seems to have been substantially what the defendant requested.
Judgment reversed and cause remanded.