Allen v. Inhabitants of Gardner , 147 Mass. 452 ( 1888 )

Knowlton, J.

The petitioner’s estate was damaged by repairs made upon the street in front of it by one of the highway surveyors of the defendant town. His injury was of the kind for which compensation is intended to be provided by the Pub. Sts. c. 52, § 15; and the only matters alleged as grounds of objection to his recovery are, first, that the highway surveyor, having previously used all the money appropriated for his district, made the repairs without the written consent of the selectmen ; and, secondly, that the petition for the allowance of damages, filed with the selectmen, was not in proper form, nor sufficient to meet the requirements of the statute.

It has been held in many cases, that, under circumstances like those here disclosed, a liability to pay for repairs cannot be created by a highway surveyor against a town. Sikes v. Hatfield, 13 Gray, 347. Todd v. Rowley, 8 Allen, 51. Groddard v. Petersham, 136 Mass. 235. But a highway surveyor is a public officer, charged with the duty of keeping the roads in his district in repair, and his official acts, done within the ordinary scope of the authority of such officers, after his public money is all expended, and without the written consent of the selectmen, are not illegal. The town cannot be made liable for the cost of them, but it may pay for them if it chooses so to do. Jones v. Lancaster, 4 Pick. 149. Curran v. Holliston, 180 Mass. 272. And so far as they cause damages to the estates of individuals by repairs upon the highways, they are treated as done under competent authority. • This has been directly adjudicated in Elder v. Bemis, 2 Met. 599, 604, and in Benjamin v. Wheeler, 15 Gray, 486, 489, in regard to similar acts where damage was caused by a surveyor’s turning a watercourse in such a way as to injure an adjacent estate, without the approbation of the selectmen, and in violation of the Pub. Sts. c. 52, § 14.

The principle upon which these cases rest is equally applicable to the case at bar. And it is obvious that a different rule would be likely to work great injustice; for landowners along a highway often have no means of knowing whether the appropriation for the use of a highway surveyor has been exhausted, or whether or not he is working with the written consent of the selectmen; and in case of injury to their estates, if they could not hold the town responsible for the consequences of his official acts, they would be without remedy.

The petition filed with the selectmen set out, either in direct averment or by plain implication, all that was necessary under the statute. The petitioner alleged that he was the owner of land, which, without fully describing it, he sufficiently designated; that he had suffered damage in his property by the removal of earth from the street in front of it; that the work had been done for the purpose of repairing the street; and that he was entitled to compensation, which he petitioned the board to award him. He was not strictly accurate in the statement in his petition that the repairs were “ ordered and made under the direction and authority” of the selectmen. But the Pub. Sts. c. 52, § 3, provide that money used by highway surveyors in their several districts shall “be carefully and judiciously expended . . . . under the direction of the selectmen,” and repairs made by a highway surveyor might well be supposed to come under the statute. The selectmen could not have been misled by 'this inaccuracy; for the petition did not refer to any order or adjudication, such as would have been made under the Pub. Sts. c. 49, §§ 65-72, in proceedings in relation to specific repairs, and it did refer to the time when the work of repairing was done.

The petition could not properly have been treated as brought under the statute last cited. It was imperfect and informal; but strict rules of pleading are not to be applied in proceedings of this kind, and we are of opinion that it was sufficient. Wilbur v. Taunton, 123 Mass. 522.

Exceptions sustained.