
    Austin B. Robinson vs. City of Everett. Isaac Masse vs. Same. Augusta L. Robinson vs. Same.
    Middlesex.
    January 11, 1906.
    May 17, 1908.
    Present: Knowlton, C. J., Morton, Lathróp, Hammond, & Sheldon, JJ.
    Municipal Corporations. Sewer. Evidence.
    
    A city is not liable for damage caused by the lack of capacity of one of its sewers due to the original plan, and it does not matter that the sewer was constructed before the incorporation of the city.
    In an action against a city for damages caused by its alleged negligence in the construction of a sewer, evidence offered by the plaintiff to show that the lack of capacity complained of by him afterwards was remedied by the construction of an additional sewer should be excluded as immaterial.
    Three actions of tort against the city of Everett for damages caused by an alleged defect in a sewer in Bow Street in that city as stated in the opinion. Writs dated November 25, 1902.
    In the Superior Court the cases were tried together before Hitchcock, J. He ruled that the plaintiffs could not maintain their actions, and ordered verdicts for the defendant. The plaintiffs alleged exceptions.
    
      W. N. Osgood, for the plaintiffs.
    
      W. S. Thompson, for the defendant, submitted a brief.
   Hammond, J.

These are three actions of tort to recover damages for injury to personal and real property by reason of the negligent construction and maintenance and improper and illegal use by the defendant, of a certain sewer in Bow Street in the defendant city. At the close of the evidence the judge ruled that the actions could not be maintained.

The sewer was being used for carrying away sewage and surface water. There is nothing to show that it was not originally intended for drainage of surface water. It was not contended that the sewer was out of repair. The only trouble seemed to be that by the construction of catch basins it was overloaded with surface water. The doctrine that the defendant is not liable for a lack of capacity due to the original plan (Child v. Boston, 4 Allen, 41) is applicable here although the sewer was constructed before the incorporation of the defendant as a city. The case must be classed with Buckley v. New Bedford, 155 Mass. 64, and similar cases. Manning v. Springfield, 184 Mass. 245.

The evidence that the trouble of which the plaintiffs complained was remedied by the construction of a new sewer in Langdon Street was immaterial and rightly rejected.

Exceptions overruled.  