These two petitions are brought to recover compensation for personal injuries and for damage to personal property allegedly caused by the bursting in Somerville on July 26, 1957, of a water main which was constructed and controlled by the respondent Metropolitan District Commission (the M.D.C.), an agency of the Commonwealth. The first petition, originally brought by John M.
Both petitions allege, in summary, that the injuries were caused (1) by the negligence of the M.D.C. in its construction, operation, and maintenance of the waterworks and (2) by a defective condition in the waterworks. Both petitions refer generally to "an act of ... [the] Legislature to compensate ... for damages that may have occurred ... as a result of the bursting of said water main...."
To each petition the respondents filed a demurrer and a motion to dismiss. Although the petitions are plainly demurrable, it appears that a hearing was had only on the motions to dismiss. The grounds of each motion were that: (1) the Superior Court had no jurisdiction of the action or claim; (2) the petition failed to allege any action or claim for which the Commonwealth had submitted itself to the jurisdiction of the court; (3) there is no statutory liability on the Commonwealth or the M.D.C. for the cause alleged; (4) the Commonwealth is not subject to G.L.c. 223 or other procedural incidents of ordinary law suits. The motions set forth no facts not already apparent on the record and are founded solely upon it. The motions to dismiss were allowed, and from their allowance the petitioner has appealed. Since the orders of the judge are founded on matter of law apparent on the record and, if allowed to stand, would be decisive of the case, the appeals are properly before us. G.L.c. 231, § 96. Graustein v. Boston & Maine R.R. 304 Mass. 23, 25. See Summers v. Boston Safe Deposit & Trust Co. 301 Mass. 167, 169. We are called upon to decide whether the petitions state any action or claim that affords a basis for recovery.
It is fundamental that the Commonwealth, along with its duly constituted public agencies, cannot be sued for the torts of its officers, agents or employees except by a clear manifestation
It is too clear for extended discussion that G.L.c. 258, § 1,
The petitioner contends, however, that the Commonwealth has consented to be subject to liability in tort by the express provisions of G.L.c. 92, § 15, which provides, in part: "The commission [the M.D.C.] shall keep all waterworks constructed or maintained by it and all bridges built by it across the reservoir upon the Nashua river safe, and shall have charge of, use, maintain and operate the same, and the commonwealth shall be exclusively responsible for all damages
We deal first with the argument of the respondents that the quoted provision is limited in its application to waterworks and bridges built across the reservoir on the Nashua River. We do not agree. We conclude from a study of St. 1895, c. 488, the original act from which G.L.c. 92, §§ 10-32 (Metropolitan Water District) descends, that the Legislature intended a broader application of § 15. Statute 1895, c. 488, read as a whole, discloses a grand design, worked out in detail, to create and maintain a pure and adequate supply of water, by a system of waterworks, for the inhabitants of Boston and of the twelve surrounding towns and cities, including Somerville, all constituting the Metropolitan Water District. It imposed upon the Metropolitan Water Board broad responsibilities for the construction and maintenance of the system. The Metropolitan Water Board (a predecessor of the M.D.C.) established by St. 1895, c. 488, § 1, were by various sections of c. 488, ordered or authorized, among other things, to acquire real estate, ponds and other water basins, and specifically the south branch of the Nashua River; to construct a storage reservoir upon the Nashua River; to take the Chestnut Hill Reservoir and pumping station; to take all of the city of Boston water supply system westward of the Chestnut Hill Reservoir; to take the water supply systems of named cities and connect them with the Chestnut Hill Reservoir and Spot Pond; and to construct buildings, lay pipes, alter water courses, and remove and rebuild dams (§§ 3, 4, 6, 7, 9). By St. 1895, c. 488, § 10, it was provided that on or before January 1, 1898, the board "shall commence the operation of the works taken by them from the city of Boston, and shall thereafter keep the same and all water works constructed by them, and all bridges which they may build across said reservoir upon the Nashua river, ... safe, and shall have charge of, use, maintain and operate the same, and the Commonwealth shall exclusively be responsible for all damages caused thereby or by any defect or want of repair therein ..." (emphasis supplied). By
It does not follow, however, that if the M.D.C. has failed in its duty to keep the water main safe, the M.D.C. or the Commonwealth must respond in damages for the consequences of the failure. The sole express provision in G.L.c. 92, §§ 10-32 (Metropolitan Water District), relating to the right to recover damages is found in the sentence in § 32 which reads: "Any person injured in his property by the entry upon or use of his land by the commission under this section may recover his damages under chapter seventy-nine [eminent domain]" (emphasis supplied). It is obvious that the damages sought in the petitions do not come within the purview of the eminent domain statute.
We turn to further consideration of the language, already referred to, in G.L.c. 92, § 15, which provides that "the commonwealth shall be exclusively responsible for all damages caused" by any defect or want of repair in the waterworks constructed or maintained by the M.D.C., and the bridges built by it across the reservoir upon the Nashua River (emphasis supplied). The significance of the emphasized provision becomes clear if reference is again made to St. 1895, c. 488. As already noted, c. 488, § 10, is the antecedent of G.L.c. 92, § 15. In the carefully conceived plan
From the foregoing survey of the framework and content of St. 1895, c. 488, it is manifest that § 10, which defined the scope of the operational responsibility of the board and the time when that responsibility should commence, held the transitional position between the sections which provided for the things to be done to prepare for the operation of the
CUTTER, J. (concurring).
I concur in the result because it does not appear to me that, either in St. 1895, c. 488, § 10, or in G.L.c. 92, § 15, the Legislature has sufficiently indicated any intention to allow recovery against the Commonwealth in circumstances such as here appear. I see, however, in the statutory language no express legislative reservation of immunity from liability, although such immunity may be the consequence of the failure of the 1895 statute to be more explicit.