Inhabitants of Melrose v. Hiland , 163 Mass. 303 ( 1895 )

Allen, J.

1. The defendant contends that the town had no power to widen the drain or clear it from obstructions, because it was upon private land, and outside the limits of any highway. We cannot see how this fact makes any difference. Drains may be laid through private lands, as well as in highways. St. 1869, c. 111, § 1. Pub. Sts. c. 50, § 1. If a common drain runs through private land, the power and duty of the town to repair it are the same as if it were in a highway. Bates v. Westborough, 151 Mass. 174. Such power and duty might even be made to extend beyond the limits of the town. Commonwealth v. Newburyport, 103 Mass. 129. Carter v. Cambridge & Brookline Bridge, 104 Mass. 236. Coldwater v. Tucker, 36 Mich. 474. Dillon, Mun. Corp. (4th ed.) § 446.

2. The defendant further criticises the decision in Melrose v. Cutter, 159 Mass. 461, and contends that no power to repair this drain was given to the town by St. 1869, c. 378, and that the county commissioners alone had this power and duty, and could not delegate it to the town. The county commissioners were to do the work in the first instance, and might assess betterments on real estate; and by § 3 they were to assess the cost on the Boston and Maine Railroad, and on the towns of Malden and Melrose. The statute was subject to acceptance by the towns, and was in fact accepted by the plaintiff, and also no doubt by Malden; see Cochrane v. Malden, 152 Mass. 365, 366; though the latter fact is not expressly stated in this case. The declared object of the work was “ for the purposes of proper drainage and the public health.” It was designed to make a drain beneficial to both towns, as well as to the railroad, and to assess the cost in part upon real estate benefited, and upon the railroad company, and the rest upon the two towns. The statute was not very carefully drawn, and has been fruitful of litigation, and heretofore the court had occasion to say of it, “ Much that is necessary in order to adapt the provisions of the General Statutes in substance and effect to the new conditions of this special act, must be left to necessary implication.” Phillips v. County Commissioners, 122 Mass. 258. See also other cases growing out of this statute. Phillips v. Middlesex, 127 Mass. 262. Cochrane v. Malden, 152 Mass. 365. Melrose v. Cutter, 159 Mass. 461. It was not expressly declared in the statute how the drain should be maintained and repaired; but in Melrose v. Cutter we determined that the town within its own limits is bound to maintain and repair it. This would be clear under the decisions, if the drain had been originally laid out by the selectmen, under St. 1869, c. 111, § 1. It has often been held that after a drain has been built the care of it devolves upon the city or town, and the mayor and aldermen or selectmen in repairing it afterwards act as the agents of the city or town. Child v. Boston, 4 Allen, 41. Emery v. Lowell, 104 Mass. 13. Murphy v. Lowell, 124 Mass. 564. Bates v. Westborough, 151 Mass. 174. It would be a narrow construction of St. 1869, c. 111, § 1, and Pub. Sts. c. 50, § 1, to hold that this duty is limited to drains laid out by the mayor and aldermen or selectmen themselves. The work of making the drain could be more beneficially performed by the county commissioners ; but, the drain being finished, it became a common drain, and was to be repaired like other common drains. We therefore remain satisfied with the decision in Melrose v. Cutter. The decision in Cochrane v. Malden, 152 Mass. 365, is not opposed to the view here expressed. It was there held that the town was not liable for the damages done by the setting back of the water, in consequence of a culvert’s not having been enlarged; that the county commissioners had settled the proper size of the culvert, and that the town might rest on their decision. The ordinary repairs of the drain, and the power of the town to enlarge the culvert, if it had voted to do so, were not brought in question.

3. It seems that the county commissioners, although they laid out the drain as twelve feet wide, actually built it at the place now in question only about eight feet wide; and the defendant contends that the town had no authority to enlarge it to the width of twelve feet. But the power to repair includes the power to make such enlargement, if reasonable and necessary for the purpose of proper drainage.

4. It was lawful for the town to take an agreement from the defendant for reimbursement of the cost of doing the work on his premises. Arlington v. Cutter, 114 Mass. 344. Springfield v. Harris, 107 Mass. 532. Dillon, Mun. Corp. (4th ed.) § 458, and cases cited. The defendant now contends that the agreement was obtained from him by fraud, or at least that there was evidence of fraud for the jury. But no such question is open upon the report. The nearest approach to raising a question of fraud was in the request for a ruling “ that the defendant’s request to do the work when he was under the impression that he was obliged to do it, not leaving it to his own volition, would not form a contract with the town.” This suggested no question of fraud. We may add, that we find in the report no evidence of fraud.

5. The defendant contends that the town did not authorize the selectmen to take an agreement from the defendant for reimbursement. The agreement was for the benefit of the town, and the bringing of the action upon it is sufficient evidence of an acceptance of it, and of a ratification of the act of the selectmen in taking it. See Arlington v. Cutter, 114 Mass. 344.

If the work done had been beyond the authority of the town, the question would still remain whether the defendant could avail himself of that ground of defence. This question we need not consider. Judgment on the verdict.