McGowen v. Carr, 272 Mass. 573, 576. Belkus v. Brockton, 282 Mass. 285, 287. See Ryder v. Lexington, 303 Mass. 281, 288; DiNardo v. Dovidio, 312 Mass. 398, 402. Compare Maddock v. Springfield, 281 Mass. 103. There is nothing in the point that the defendant is excused from reopening the culvert because the plaintiff had no right to discharge effluent into the stream.
Daley v. Watertown, 192 Mass. 116, 118, 119. Ryder v. Lexington, 303 Mass. 281, 288. Gratiano alleged in his declaration and contends that the town is estopped to show that this system was constructed by public officers because of the judgments which were entered against the town in previous actions brought against it by Wishnewsky for damage due to the flooding of his land by reason of the overloading of the brook resulting from the discharge into it of this same drainage system.
By the weight of authority the right of an upper owner to drain surface water into a watercourse is qualified to the extent that the flow must not be increased beyond the capacity of the stream; the flow of a stream cannot be increased beyond its natural capacity as was done here to the injury of one's property below by flooding. (Thompson on Real Property, Perm. Ed., vol. 2, sec. 663; Ryder v. Town of Lexington, 303 Mass. 281 [ 21 N.E.2d 382]; North Dakota v. Minnesota, 263 U.S. 365 [44 Sup. Ct. 138, 68 L.Ed. 342]; Jackman v. Arlington Mills, 137 Mass. 277; Belcastro v. Norris, 261 Mass. 174 [ 158 N.E. 535]; Smith v. Orben, 119 N.J. Eq. 291 [ 182 A. 153]; McCormick v. Horan, 81 N.Y. 86 [37 Am. Rep. 479]; Spink v. Corning, 61 App. Div. 84 [70 N.Y. Supp. 143]; note, 28 A.L.R. 1262). And that rule is applicable where the one doing the draining is a public corporation.
As was pointed out in Smith v. Gloucester, 201 Mass. 329, what in effect happens where public work such as the repair of highways is done by agents is that the municipalities take the work out of the hands of the officers elected or appointed to do it and commit it to others as agents. Finally, the plaintiffs contend that where, as here, the work of building the bridge was the result of a vote of the committee on streets that the superintendent proceed with the building of the bridge "following the plan submitted by the city engineer," and that where the evidence disclosed that the bridge was built accordingly, it could have been found that the superintendent was not permitted to use his own judgment in exercising such statutory powers as he had, citing Ryder v. Lexington, 303 Mass. 281, 287. In our opinion, however, the case does not get to that point.
There are opinions which hold that water cast upon another's land, as a result of some act voluntarily done by another, constitutes a trespass, whether intentional or not, and this rule is applicable to acts done by governmental bodies. Cartwright v. Southern Pacific Co., D.C.Or., 206 F. 234, 235; See Fortier v. H. P. Hood Sons, Inc., 307 Mass. 292, 30 N.E.2d 253; Ryder v. Town of Lexington, 303 Mass. 281, 21 N.E.2d 382; Dryden v. Peru Bottom Drainage Dist., 99 Neb. 837, 158 N.W. 55; City of Jackson v. Wilson, 146 Ga. 250, 91 S.E. 63. The Oregon Supreme Court adopts the trespass rule in regard to water cast on another's land.
That right too has bred irrational distinctions as the courts have attempted to limit its inflexibility. See, e.g., Wishnewsky v. Saugus, 325 Mass. 191 (1950) (diversion of highway surface water is actionable when the water is diverted into a natural waterway causing it to flood); Ryder v. Lexington, 303 Mass. 281 (1939) (same). We see no rational distinction between private property and public ways that justifies adherence to a form of the common enemy rule for one, but not the other.
Loschi v. Massachusetts Port Auth., 361 Mass. 714, 715-716 (1972). Ryder v. Lexington, 303 Mass. 281, 292 (1939). See W.B. Leach P.J. Liacos, Massachusetts Evidence 92 (4th ed. 1967).
And, of course, exceptions to this rule have been created. See, e.g., Ryder v. Taunton, 306 Mass. 154 (1940); Ryder v. Lexington, 303 Mass. 281 (1939). While the basic rules have been buffeted about through the years, one basic principle of immunity emerges: "The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit.
A. DaPrato Co. v. Boston, 334 Mass. 186 (maintenance of water system). In some cases which have emphasized that a city or town, in the absence of statutory provisions to the contrary, is not liable for the torts of public officers whose duties have been established by the Legislature, liability has again been established by exceptions. It has been held that a city or town may be held liable where it directs that work shall be done by persons other than those who have the statutory duty to perform it. Ryder v. Lexington, 303 Mass. 281. Liability may also arise where the municipality chooses to instruct the public officer as to the manner in which he is to perform his duties. Ryder v. Taunton, 306 Mass. 154, 159.
The case must therefore be remanded that the town may be joined as a party defendant, and for any further proceedings necessary for a determination of a possible injunction and award of damages against the town if it be found that the defendant cemetery commissioners were acting as agents of the town and not as public officers. See Thayer v. Boston, 19 Pick. 511, 515-517; Hawks v. Charlemont, 107 Mass. 414; Malinoski v. D.S. McGrath, Inc. 283 Mass. 1; Hale v. Williamstown, 292 Mass. 319; Ryder v. Lexington, 303 Mass. 281. The interlocutory and final decrees are to be modified in accordance with the foregoing. So ordered.