Inhabitants of Brookfield v. Reed , 152 Mass. 568 ( 1891 )

W. Allen, J.

Certain specific repairs, consisting of raising the grade of the road, were ordered in a town way in the plaintiff town. The exceptions state that no question was made in regard to the regularity and legality of the proceedings in raising the road. The defendants undertook to make and maintain the repairs, and gave the bond in suit to the town, with condition that they would raise the road and keep the raised part in repair free of expense to the town forever. It is objected that the contract is illegal, because by it the town has deprived itself of the control and regulation of the way. But it cannot have that effect. The contract provided a mode in which the town might perform its duty to keep a public way in repair. It did not obviate that duty, or relieve the town from liability for want of repair in the way. It cannot prevent the lawful discontinuance of the way, and it will not be construed as intending -to do that. The subject matter is a public way, and if that should cease to exist, the obligation of the town to maintain the way and the bridge, and the obligation of the defendants to keep the way in repair, would cease. No question in regard to the regularity or validity of the order for repairing the way is before us, or of the effect of the bond upon that. Nor is there any question presented in regard to the validity of a contract to make payments of money in future years. We have no doubt that the plaintiff could lawfully receive from individuals an obligation to relieve it from the expense of keeping a piece of public way in repair for all time. Hawks v. Charlemont, 107 Mass. 414. Arlington v. Cutter, 114 Mass. 344, and cases cited. Deane v. Randolph, 132 Mass. 475. Sullivan v. Holyoke, 135 Mass. 273. Waldron v. Haverhill, 143 Mass. 582.

The evidence that highway surveyors of the plaintiff town had repaired the way in question was not sufficient to prove that the plaintiff had waived or abandoned its right under the bond. The highway surveyors did not act as agents of the plaintiff, and the repairs they made were in connection with the ordinary annual repairs of highways, and the cost at any one time was but a fraction of a dollar. No inference ■ that the plaintiff had surrendered the bond can be drawn from the fact that actions were not brought for such almost nominal breaches of it. When substantial repairs were at one time made necessary, by the washing away of the roadbed, they were made in behalf of the makers of the bond, and not by the plaintiff.

The other exceptions relate only to the question of damages, and are not shown by the bill of exceptions to be material. It is not stated that the jury was to assess the sum for which execution was to be awarded. If it can be inferred that the question whether the plaintiff was entitled to judgment for the amount of the penalty of the bond, and the question for what amount it was entitled to have execution issue, were submitted to the jury together, the difficulty remains that the exceptions show only that the verdict was for the plaintiff, which would import a verdict for the penal sum of the bond, and do not show that the jury passed upon the question of the amount due, nor that the defendants were aggrieved by any ruling of the court in regard to damages. By referring to the record of the verdict, however, it appears that the jury not only found for the plaintiff, but also found the amount of damages which, being for less than the penal sum of the bond, must be taken as an assessment of the amount due for breach of the condition of the bond for which execution should issue. It appears also, from the amount found, that the rulings excepted to were material. We consider, therefore, the exceptions which relate to that part of the case.

Evidence showing expenses incurred after the commencement of the action was properly admitted; the jury were to assess the amount due in equity and good conscience at the time of the verdict. Pub. Sts. c. 171, § 10. Waldo v. Fobes, 1 Mass. 10.

The plaintiff is entitled to be reimbursed the sums which were reasonably expended by it in repairing the way. It built a temporary bridge over the washout, and about' two years later filled in the roadbed with earth. The defendants contended that the bridge was unnecessary, and offered evidence to prove that there was no good reason why the permanent filling in should not have been done at the time the bridge was erected, and that a temporary way equally good with the bridge could have been provided at much less expense. This evidence was excluded, and the question whether building the bridge was in fact reasonable and proper, or was an unnecessary and unreasonable mode of repairing the way, was excluded from the jury. The selectmen consulted a competent and experienced civil engineer, and acted under his advice. The jury were instructed, thatj “ if the defendants neglected for an unreasonable length of time after due notice to repair the roadway in accordance with the provisions of the bond, and the plaintiff thereafter obtained the services of a competent engineer, competent to advise in such matters, who made a careful and prudent investigation of the circumstances, and recommended a plan for the repair of the roadway, which was adopted by the plaintiff, and by it carried out in a reasonable, prudent, and economical manner, then the plaintiff was entitled to recover what was thus expended by it.”

We think that the rule adopted by the court, and in accordance with which the evidence was excluded, was wrong in taking from the jury the question whether the selectmen of the plaintiff, in adopting the plan of building a temporary bridge recom- • mended by their engineer, acted in good faith and with reasonable judgment. They were the agents of the plaintiff to determine for it whether the bridge was necessary, and they could not delegate their authority to any one. They were not bound to adopt the recommendations of their engineer, but were bound to exercise their judgment in determining whether to carry them out. The rule of law was not changed when they consulted an expert, but it remained a question of fact whether, under all the circumstances, their decision to build a temporary bridge was reasonable. There is no rule of law that the expert opinion was in fact correct, or that the selectmen may not have had reason to know that it was incorrect. The evidence offered, tending to show that the temporary bridge was unnecessary, and that the expense of it might have been saved, was competent upon the question whether that expense was reasonably incurred, and it was not rendered incompetent, however its weight may have been affected, by the fact that the bridge was built under the advice of a competent expert.

The testimony of Forbes was, we think, properly excluded. He was the owner of the mill and the mill privilege, under the signers of the bond, and had assumed the burden of repairing the way. The breaking away of the dam caused the washing away of the earth of the road, and the water continued to flow in the channel thus made. The defendants offered to prove that Forbes proposed to build a new dam outside of the roadway, thus holding back the water, and rendering it practicable or easier for the plaintiff to fill in the road, if the plaintiff would repair the roadbed by filling it in. He did not offer to repair the way, but only to build a dam on his own land, if the plaintiff would relieve him and the signers of the bond of the burden of repairing it. The plaintiff was under no obligation to repair the road at its own expense in order to save the defendants the expense of a temporary bridge. If, after the plaintiff had adopted the plan of a temporary bridge, Forbes had offered to build a dam at once, so that permanent repairs by filling in could be made as speedily as could the proposed temporary bridge, on condition that the plaintiff would then make the permanent instead of temporary repairs, without prejudice to its right to recover on the bond, a very different question would have been presented.

Exceptions as to the defendants'1 liability overruled.

Exceptions as to the amount due on the bond sustained.