ANNE F. SMITH, administratrix, vs. COMMONWEALTH & another [Note 1] (and a companion case [Note 2]).

KIRK, J. 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.

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Smith, since deceased, is now prosecuted by his widow as administratrix who seeks compensation for personal injuries suffered by Smith and for consequential damages for medical expenses incurred by him for his wife. The second petition, brought by Mrs. Smith in her own right, seeks compensation for personal injuries and for damage to her personal property.

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 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, Section 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

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of consent thereto by statute. Burroughs v. Commonwealth, 224 Mass. 28, 29. Glickman v. Commonwealth, 244 Mass. 148, 149-150. The statutory "intent to confer such authority should be clearly manifested." Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 29. As was stated by Qua, C.J., "It is axiomatic that the Commonwealth can be held answerable in its own courts only to the precise extent and in the precise manner to and in which it has submitted itself to their jurisdiction by statute." Putnam Furniture Bldg. Inc. v. Commonwealth, 323 Mass. 179, 185, and cases cited. Accordingly, we examine the relevant statutes to determine whether, in the light of the allegations in the petitions, the Commonwealth or the M. D. C. is subject to liability in tort.

It is too clear for extended discussion that G. L. c. 258, Section 1, [Note 3] under which both parties have assumed the petitions were brought, is procedural in purpose and is not in itself the source of any new rights against the Commonwealth. "The object of . . . [G. L.] c. 258 [Section 1], was not to create a new class of claims for which the Commonwealth had never been held responsible, but to provide a convenient tribunal for the hearing of claims of the character that civilized governments had always recognized, although the satisfaction of them has usually been sought by direct appeal through the Legislature." Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347, 351. Executive Air Serv. Inc. v. Division of Fisheries & Game, 342 Mass. 356, 359, and cases cited. It follows that G. L. c. 258, Section 1, per se, imposes no liability in tort upon the respondents.

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, Section 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

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caused thereby or by any defect or want of repair therein." This contention will be considered later in this opinion.

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, Sections 10-32 (Metropolitan Water District) descends, that the Legislature intended a broader application of Section 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, Section 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 (Sections 3, 4, 6, 7, 9). By St. 1895, c. 488, Section 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

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thus setting off between the word "keep" and the word "safe" the words which we have italicized the Legislature made clear its intention to impose upon the board the duty to keep safe: (1) the waterworks taken by them from the city of Boston; (2) all waterworks constructed by them under the act; and (3) all bridges they might build across the reservoir on the Nashua River. Since the fundamental purposes of St. 1895, c. 488, and the responsibilities of the board [the M. D. C.] under it have been retained in G. L. c. 92, Sections 10-32, we conclude that the legislative intent to give the indicated application to St. 1895, c. 488, Section 10, remained unchanged when that section was recast in the language now found in G. L. c. 92, Section 15. In its present form Section 15 includes "all water works constructed or maintained by [the M. D. C.]" (emphasis supplied). The M. D. C. is, therefore, under G. L. c.92, Section 15, charged with the duty to keep safe the water main which is the subject of the litigation.

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, Sections 10-32 (Metropolitan Water District), relating to the right to recover damages is found in the sentence in Section 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, Section 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, Section 10, is the antecedent of G. L. c. 92, Section 15. In the carefully conceived plan

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and sequence of St. 1895, c. 488, Section 10 had a pivotal position. Sections 1 and 2 of the act provided for the establishment and organization of the board; Section 3 set out broadly the objectives which the board were to achieve; Sections 4 to 8, inclusive, contained a succession of powers and duties conferred upon the board, especially with reference to land takings, to enable the board to accomplish the prescribed objectives; Section 9 authorized the board in comprehensive terms to undertake whatever engineering projects were necessary to carry out the purpose of the act, whether on the lands authorized to be taken, or by the entry upon and use of "the lands of others." It is at this point in the statutory scheme that the Legislature by Section 10 prescribed the time within which the board should commence the operation of the system, imposed upon the board the duty to keep the water works safe, and declared that "the Commonwealth shall exclusively be responsible for all damages caused thereby." Thereafter follow the sections of c. 488 relating to damages. [Note 4] In Section 12 of the act the board were empowered to agree with the owners of land upon the damages sustained by the taking, use or interference with their property rights; and were directed to save harmless any city or town against damages for injuries resulting from defects in public ways caused by the construction. In Section 13 provision was made for jury trial in the event the parties could not under Section 12 agree upon the damages, and execution was to be issued "against the Commonwealth in case the petitioner prevails." [Note 5]

From the foregoing survey of the framework and content of St. 1895, c. 488, it is manifest that Section 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

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water supply system and the sections which prescribed the methods to pay the costs of its establishment. There is no provision in c. 488, in Section 10 or elsewhere, for a remedy or a method for the determination of damages in the event of injury or damage caused by the operation or maintenance of the water supply system. There is lacking, therefore, the clear manifestation of intent on the part of the Commonwealth to be subject to liability in this respect. That intent is a prerequisite to a proceeding such as the one before us. Burroughs v. Commonwealth, 224 Mass. 28, 29. Glickman v. Commonwealth, 244 Mass. 148, 149. Putnam Furniture Bldg. Inc. v. Commonwealth, 323 Mass. 179, 185. We construe the provision in St. 1895, c. 488, Section 10, carried over to G. L. c. 92, Section 15, that "the commonwealth shall be exclusively responsible for all damages caused thereby . . ." as a reservation by the Commonwealth of the right to determine, upon the occurrence of the event, the action to be taken should damage be caused by a defect or want of repair in or by a failure of the M. D. C. to keep safe the waterworks constructed or maintained by it. Such relevant subsequent legislation as there is points to this construction. Resolves 1955, c. 149; 1961, c. 9; 1962, c. 6, c. 32. Indeed, it appears that by St. 1957, c. 689, the Commonwealth has exercised its prerogative to grant redress to those who, like the petitioner, suffered property damage from the bursting of the main in Somerville on July 26, 1957. The terms of St. 1957, c. 689, patently preclude a construction that the Commonwealth thereby consented to be held answerable in its own courts for the damage done. [Note 6] See Worcester v. Commonwealth, 345 Mass. 99, 101.

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Since there has been pointed out to us no statute wherein the Commonwealth has consented to be sued in tort for injuries sustained in the manner alleged, and since we are aware of none, the motions to dismiss the petitions were properly allowed. The orders of dismissal are affirmed. In each case judgment is to be entered for the respondents.

So ordered.

CUTTER, J. (concurring). I concur in the result because it does not appear to me that, either in St. 1895, c. 488, Section 10, or in G. L. c. 92, Section 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.