
    Frederick M. Myers vs. Town of Lee & another.
    
    July 9, 1979.
    
      
       Commonwealth of Massachusetts.
    
   The cities and towns hold the public highways and bridges located within their respective limits as the agents of the Commonwealth in trust for the use of the public as a whole and are subject to information or indictment at the behest of the Commonwealth if they fail to perform the duty imposed on them by G. L. c. 84, § 1, to keep such highways and bridges in repair so that they are reasonably safe and convenient for travelers at all seasons. Hill v. Boston, 122 Mass. 344, 346-347, 350, 351 (1877). Cheney v. Barker, 198 Mass. 356, 363 (1908). Higginson v. Treasurer of Boston, 212 Mass. 583, 584-585, 588-590 (1912). 2 McQuillin, Municipal Corporations § 4.148 (3d ed. 1966). There is no reason in law, logic or public morality why the Commonwealth, when it has acted under a statutory provision such as St. 1968, c. 684, § 3, to spend the monies of the general public to repair all the injuries to such highways or bridges which have been occasioned by an extraordinary natural disaster, should be deprived of the proceeds of a recovery in damages which a particular city or town has been able to secure from a third party by reason of his tortious acts which contributed to the effects of the disaster on the public highways and bridges located within the limits of that city or town. If a traditional legal theory is necessary to support that conclusion, it can be found in ordinary principles of agency and restitution. See Restatement (Second) of Agency §§ 387 and 404A (1958); Restatement of Restitution § 1 and § 162, Comment b (1937). The judgment is reversed, and a new judgment is to be entered which awards to the Commonwealth the damages in tort which have been recovered by the town of Lee and which are now in the hands of the plaintiff in interpleader, together with such interest as may have been earned on those damages.

Paul W. Johnson, Assistant Attorney General, for the Commonwealth.

James P. Dohoney, Town Counsel, for the town of Lee.

So ordered.  