Benjamin v. Wheeler , 81 Mass. 486 ( 1860 )

Hoar, J.

The case of Elder v. Bemis, 2 Met. 599, has settled the construction of the Rev. Sts. c. 25, § 5; and decided that where a surveyor of highways, without the approbation of the selectmen of the town first being had in writing, causes a watercourse, occasioned by the wash of a highway, to be so conveyed by the side of the highway and within its limits as to incommode an abutter in the use of his buildings, the act is not a trespass; and that the only remedy of the person aggrieved is that provided in the fifth and sixth sections of that chapter.

That case is decisive of the present, if the defendant was acting under the authority of surveyors of highways lawfully chosen, and within the scope of their authority. It is not denied that he was acting under the employment and direction of persons who were surveyors of highways defacto; but the plaintiff denies the validity of their election, and their capacity to hold the office, and especially to exercise the functions upon which the defendant’s justification depends.

We think the record introduced in evidence establishes a legal election of the surveyors of highways. No particular manner of election is required by law for the choice of those officers. The word “ overseers,” in the vote of the town, obviously means “surveyors,” taken in its connection; and the selectmen were thereby made the surveyors of highways for the year.

But it is farther objected that the selectmen could not be surveyors, because the offices are incompatible. We can perceive no sufficient reason for such a conclusion. Each surveyor of highways is indeed to a certain extent under the direction of the board of selectmen, by whom his district is to be assigned, and his accounts audited. He is also prohibited from acting under certain circumstances which might expose the town to unusual expense or responsibility, without the written consent of the selectmen. The reason of these provisions undoubtedly is, that the board of selectmen is composed of citizens of experience and judgment, in whose wisdom and prudence the town has confidence, and who are entrusted with the conduct of the more important municipal concerns. There are many persons in the various districts of a town competent to direct laborers and take charge of the repairs of a road, who might not be'considered fit for more responsible positions. The surveyor usually acts upon his sole responsibility in the discharge of his ordinary duties, while the selectmen act together as a board of public officers. The objects in view would seem to be as well attained when a selectman is also a surveyor.

But if this were not so, and if the acceptance by the selectmen of the office of surveyor were held to incapacitate them from acting further as selectmen, and there were no longer any board of selectmen, competent to act, to whom the plaintiff could complain of the injury done him, it would by no means follow that the surveyors of highways could not proceed in the discharge of their duties. It is no part of their duties to provide that meetings should be held to fill vacancies in other town offices. If selectmen resign, or refuse to accept the office, any citizen who is interested can take the proper measures to supply their' places.

The opinion which we have thus stated disposes of all the exceptions taken by the plaintiff, upon which his counsel have relied at the argument before us, but one, the rejection by the court of the evidence offered to show “ that the amount of excavation was unnecessary, and that it was improperly and wantonly done.” We think this evidence was rightly excluded, for the reasons given when the case was before us at a previous stage. 8 Gray, 414. The necessity and propriety of the work itself, that is, of the amount of excavation within the highway required for the watercourse, were matters exclusively within the jurisdiction of the town officers, and subject to their determination. The cases cited for the plaintiff are cases of careless and unskilful execution of a work lawful in itself, by which damages have been occasioned. They depend upon a different principle. Exceptions overruled.