JOHN B. LEMASURIER vs. TOWN OF PEPPERELL.

HALE, C.J. This is an action grounded in tort for negligence and for nuisance for damage to the plaintiff's land by flooding resulting from the repair, replacement and maintenance of a culvert under a town road near the land. The action was entered in the Superior Court on August 12, 1974, and was transferred to a District Court. Following a finding for the defendant in that court the case was retransferred to the Superior Court. After a jury trial in the Superior Court, judgment in the amount of $25,000 was entered for the plaintiff. The defendant (town) had moved for a directed verdict after both parties had rested and later for judgment notwithstanding the verdict, and now appeals from the judgment for the plaintiff.

The plaintiff claims that the damage to his land was caused by the replacement of a concrete culvert, which had been broken when an attempt was made to remove debris from

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it, with a metal culvert to which a raised "control pipe" was attached. The new culvert was placed at a higher level than the old one, and the control pipe further raised the level at which water could enter the culvert. This caused a backup of water which flooded a twelve acre portion of the plaintiff's property, killing trees and other vegetation and preventing the plaintiff from travelling across that portion of his land.

The work on the culvert was carried out by the town highway surveyor. Under the law prevailing at the time this cause of action arose, the town was not liable for the acts of the highway surveyor, a public officer, in the performance of his statutory duty. Clark v. Easton, 146 Mass. 43, 43-44 (1888). Pratt v. Weymouth, 147 Mass. 245, 253-254 (1888). Sherman v. Swansea, 261 Mass. 407, 408-409 (1927). Van Szyman v. Auburn, 345 Mass. 444, 450-451 (1963). See Whitney v. Worcester, 373 Mass. 208, 213-214 (1977); G. L. c. 41, Section 62. That rule shielded the town from liability for a public officer's negligence, see Pratt v. Weymouth, supra, or for a nuisance created or maintained by him. See Molinari v. Boston, 333 Mass. 394, 395-396 (1955). In this case, the work done on the culvert by the highway surveyor fell within his statutory duties. Pratt v. Weymouth, supra at 254. See G. L. c. 41, Section 62 and c. 84, Section 7. The culvert was under his control. Compare Towner v. Melrose, 305 Mass. 165, 168 (1940) (town can be liable for creating or maintaining nuisance on property it owns or controls), with Molinari v. Boston, supra. Although the town could have been held liable for the highway surveyor's acts if he had been acting as its agent, rather than in his role as public officer, there is no indication that such was the case here. See McCann v. Waltham, 163 Mass. 344, 345 (1895); Murphy v. Needham, 176 Mass. 422, 423-424 (1900); Ryder v. Taunton, 306 Mass. 154, 158-159 (1940). Contrast Ryder v. Lexington, 303 Mass. 281, 287-289 (1939). Bates v. Westborough, 151 Mass. 174, 184 (1890), which is the principal case relied upon by the plaintiff, is not controlling here. In Bates a town was held to be liable for damage resulting

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from the construction and maintenance of a system of "sewers and main drains" which discharged through a culvert; the rule insulating the town from liability for the acts of public officers was held inapplicable to work done on the town's sewers and main drains. There was no evidence in this case that the culvert was part of a system of surface drains, within the historical definition of "common sewers and main drains" for which the town would have been responsible under G. L. c. 83, Section 1. For a comprehensive discussion of the historical basis of the law governing main drains and common sewers, and the distinction between such drains and sewers and drains unconnected to a town's drainage system, see Smith v. Gloucester, 201 Mass. 329, 334-337 (1909).

The distinction with respect to municipal liability between acts of public officers and acts of the agents of a town is not now regarded as a sound one (see Whitney v. Worcester, supra at 213-217), and the law of municipal immunity which fostered that distinction has been superseded as to causes of action arising on or after August 16, 1977, by the enactment of a comprehensive legislative scheme regulating governmental liability. See G. L. c. 258, as amended by St. 1978, c. 512, Sections 15, 16. Nevertheless, we are constrained to follow the law as it existed before the effective date of the amendments to c. 258. See Vaughan v. Commonwealth, 377 Mass. 914 (1979). The defendant's motion for judgment notwithstanding the verdict should have been allowed.

Judgment reversed.

Judgment for the defendant.