Tyler v. Inhabitants of Revere

66 N.E. 597, 183 Mass. 98, 1903 Mass. LEXIS 720

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1903
• Status: Published

Opinion

Lathrop, J.

The plaintiff’s land did not abut upon the highway. It was admitted by the plaintiff’s counsel at the argument that the act of the superintendent of streets which is complained of was done on the land of a third person. If this is so, the town is not liable for an act done outside the limits of the highway. Anthony v. Adams, 1 Met. 284. Elder v. Bemis, 2 Met. 599. See also McCarthy v. Boston, 135 Mass. 197.

If the act was performed by the superintendent of' streets within the limits of the highway, and was done in repairing the streets or in caring for them, his act was that of a public officer, for whose negligence the town would not be liable in an action of tort. Benjamin v. Wheeler, 8 Gray, 409. Denniston v. Clark, 125 Mass. 216. Barney v. Lowell, 98 Mass. 570. Clark v. Easton, 146 Mass. 43. Murphy v. Needham, 176 Mass. 422.

While the bill of exception states that the town conducted surface water into the space on the north side of the street which was already covered by surface water accumulated by the closing of the culvert, we do not understand that the plaintiff deems this the wrongful act for which she seeks to recover damages; but the wrongful act complained of is the opening of the culvert by the superintendent of streets, for which we are of opinion that the plaintiff has not stated sufficient facts to entitle her to recover. We therefore do not consider it necessary to determine under what circumstances a town can be held liable for injury done- to the land of another by surface water. See Flagg v. Worcester, 13 Gray, 601; Hewett v. Canton, 182 Mass. 220.

Exceptions overruled.