It is true that a town is not liable for inter | Mass. 300, 306; Phelps v. Mankato, 23 Minn. rupting the flow of surface water or for dis-276, 279; Bradbury v. Benton, 69 Me. 194. charging or turning surface water upon adjoinIng land to a considerable extent, if not through ■ definite channel; but this is because no land owner is liable for doing so. Emery v. Lowe 1, 104 Mass. 13, 16, 17, explaining Barry v. Lowell, 8 Allen, 128, and Turner v. Dartmouth, 13 Allen, 291. See Gannon v. llargadon, 10 Allen, 106; Franklin v. Fisk, 13 Allen, 211; Kates v. Smith, 100 Mass. 181; Morrill v. Hurley, 120 Mass. 99. So a town is not liable to an action at common law for acts which are done under a statute, for instance, in the repair of highways, or, it seems, in the construction of sewers, for which the statute provides a remedy by petition. Emery v. Lowell, supra, explaining | Flagg v. Worcester, 13 Gray, 601; Manning v. Lowell, 1:0 Mass. 21, 22; Nealley v. Bradford, 145 Mass. 561, 5 New Eng. Rep. 515. See Hull v. Westfield, 133 Mass. 433; Perry v. Worcester, 6 Gray, 544; Benjamin v. Wheeler, 8 Gray, 409, | 15 Gray, 486. It was not intended to overrule or to modify the well settled rules which we have stated, by the decision in Kennison v. Beverly, 146 Mass. 467, 6 New Eng. Rep. 133. In that case the damage was caused by percolation from a catch basin which seems to have been incident only to an open gutter by the side of the highways. Assuming that there was evidence for the jury that there was such an artificial accumulation of water as to fall within White v. Chapin and Manning v. Lowell, and that the trouble was due to negligence in construction rather than to the plan adopted, still it may be that the town was not liable in the absence of such evidence that it did the work, as was found in Deane v. Randolph, 132 Mass. 475; Waldron v. Ilaverhill, 143 Mass. 582, 3 New Eng. Rep. 683; Doherty v. Braintree, 148 Mass. 495, 497. It may be that defects in such a catch basin are to be regarded as defects in surface drainage within the limits of the highway, and herefore as defects in the repair of the highway the charge of which is committed by statute to the highway surveyors. Highway surveyors in the performance of their statutory duties are held to be public officers and not agents of the town, partly because of the town's want of control over them, and partly because the duty to repair the surface of highways is regarded as a public duty from which the town derives no special advantage in its corporate capacity. Walcott v. Swampscott, 1 Allen, 101; Barney v. Lowel, 98 Mass. 570, 571; Tindley v. Salem, 137 Mass. 171, 174; Blanchard v. Ayer, 148 Mass. 174, 176. But the case is different when a city or town has caused the plaintiff's land to be flowed in a way which would be actionable as against a private person, and which cannot be taken to have been contemplated by the statute under which it acts, or to have been paid for by the compensation allowed in respect of the orig inal scheme. Thus, in the instance of sewers, it is settled that if the plaintiff can prove that the injury was caused by the negligence of the city, either in the original construction of the sewer, or in not keeping it free from obstructions, he may maintain an action against the city. Emery v. Lowell, 104 Mass. 13, 17; Merrifield v. Worcester, 110 Mass. 216, 221; Murphy v. Lowell, 124 Mass. 564; Tindley v. Salem, 137 Mass. 171, 172; Stinchfield v. Newton, 142 Mass. 110, 115, 2 New Eng. Rep. 526; Child v. Boston, 10 Met. 103, 110; Bigelow v. Randolph, 14 ton, 4 Allen, 41, 52. So if by a system of drains a city artificially diverts surface water from its natural course and accumulates it upon the plaintiff's land in such quantities as to create a private nuisance, it may be liable to an action. Manning v. Lovell, 130 Mass. 21, 25; Brayton v. Fall River, 113 Mass, 218, 226. So if it negligently fails to keep a culvert under a highway in such condition as not to obstruct a natural stream. Parker v. Lowell, 11 Gray, 353. Emery v. Lowell, and the cases following it, have reinforced the distinction established in Child v. Boston, that while no action lies for a defect or want of sufficiency in the plan or system of drainage adopted in the exercise of a quasi judicial discretion, under powers especially conferred by statute, the duty of keeping the common sewers in repair and free from obstructions after they have been constructed and have become the property of the city under such authority, is a ministerial duty, for neglect of which the city is liable to any person injured The same is true of the duty actually to construct them with reasonable care and skill. And there is no difference in these duties whether the city has acquired the right to maintain the sewer by prescription or has laid it under the statute. See Gould v. Boston, 120| For these and perhaps other reasons, it is held that towns are not liable for defects in such repair apart from statute, except in such cases as we have mentioned. White v. Phillips Gray, 541, 543; Oliver v. Worcester, 102 Mass. 489, 499; Hill v. Boston, 122 Mass. 344, 350. It seems that this irresponsibility is not confined to nonfeasance or to damage in the highway, to persons traveling there, but extends to cases of misfeasance (see Walcott v. Swampscott and Tindley v. Salem, supra, Manners v. Haverhill, 135 Mass. 165), and to injury to persons or property outside of the highway. Holman v. Townsend, 13 Met. 297; Smith v. Dedham, 8 Cush. 522. See Benjamin v. Wheeler and Turner v. Dartmouth, supra; Brailey v. Southborough, 6 Cush. 141. But it is settled by the cases which we have cited (Emery v. Lowell, etc.) that there is no such immunity with regard to sewers and main drains. These belong to the cities and towns by statute (Pub. Stat. chap. 50, 1); and although the road commissioners who are given authority to maintain them, by the same section, are probably no more the agents of the towns than highway surveyors, when exercising highway surveyors' duties (Barney v. Lowell, supra; Nealley v. Bradford, 145 Mass. 561, 564, 5 New Eng. Rep. 515), still perhaps they have not so exclusive an authority over sewers, and at all events the interest of the towns in the sewers is so distinct from that of the public at large that they are held, with reason, to the ordinary responsibilities of owners. See, fur ther, Oliver v. Worcester, 102 Mass. 489, 500; Haskell v. New Bedford, 108 Mass. 208; Iland v. Brookline, 126 Mass. 324. A further objection is taken by the defendants, with regard to the box drain, that a tenant is not liable to third persons for damages subsequently caused by a structure lawfully erected and simply left by him upon his landlord's premises after the expiration of his lease. We certainly are not disposed to deny that proposition when the circumstances are such that the tenant may be held to have abandoned the structure, and the landlord may be held to maintain it. Blunt v. Aikin, 15 Wend. 522; Waggoner v. Jermaine, 3 Denio, 306. See Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49, 5 New Eng. Rep. 566. But the tenant's liability will continue if he stil maintains the structure, and in a case like this the question whether he does so or not will depend upon evidence which, necessarily, in slight, so far as it is drawn from subsequent acts. If the Town abandoned the drain, natural causes would still carry water through it as before; if it maintained it, there was nothing in particular for the Town to do, unless the drain should need repairs. Perhaps the strongest evidence is found in the original transaction. Whether the leave to maintain the drain for five years, given by Smith, was a lease or a license, it is very plain that the limit of five years was fixed simply in order to preserve rights. Neither party can have expected that the drain was to be given up at the end of that time. The case is wholly different from the ordinary one of a tenant leaving a fixture. The same need which led to the agreement was likely to continue, and it would seem from the report adopted by the Town that already the box drain was the neces sary outlet of the system of drains and sewers belonging to the Town heretofore mentioned. It is a fair inference that what should be done later was left to further negotiations, which seem from the vote of November 8, 1887 to have been had, and to have been successful. So far as the Town added to its system of drains, it showed its intention to continue to use the box drain. It did continue in fact to discharge the water from that system through the box drain, and it negotiated with Smith, as we have said. There was ample evidence that the Town used the box drain after the five years. What would be the liability for bring ing down water against an obstacle not under the defendant's control, under circumstances otherwise like the present, we need not consider. Any insufficiency that there may have been in the drain seems to have been due to negligence in its construction or maintenance, not to a defect in the original plan. See Hiй v Boston, 122 Mass. 344, 375; Perry v. Worces ter, 6 Gray, 544, 547. | Exceptions overruled. INDIANA SUPREME COURT. Board of Commissioners of JAY COUNTY, | Appt., V. David T. TAYLOR et al. contract by which a board of county commissioners attempts to employ a legal adviser for a period of three years to commence three months in the future and after the time for the election of a person to fill the vacancy caused by the expiration of the term of office of one member of the board, the term of employment extending over a period during which all the members of the board as constituted at the time of the contract will retire therefrom unless re-elected, is against public policy and void. (Elliott and Coffee, JJ., dissent.) (February 4, 1890.) APPEAL by defendant from a judgment of Circuit Court for Jay County in favor of plaintiffs in an action upon a contract to pay plaintiffs for legal services to be rendered by them. Reversed. The case sufliciently appears in the opinion. Messrs. Thomas Bosworth and Frank H. Snyder, for appellant. Messrs. Taylor & Hartford, appellees, in person. Berkshire, J., delivered the opinion of the court: The appellees sued the appellant upon the following contract: This memorandum of agreement made this day between the Board of Commissioners of Jay County of the first part and Taylor and Hartford of the second part, witnesseth that the party of the first part has this day employed and hired the party of the second part as county attorney for Jay County, in the State of Indiana, for a period of three yea's from the 5th day of December, 1887; the said party of the second part hereby agreeing to attend to all litigations in which the Board of Commissioners of Jay County, is a party, in any of the courts of the State of Indiana, and at all times to render and give the Board of Commissioners of Jay County or any member thereof, legal advice at their reasonable request; and also to legally advise and direct any officer of said County of Jay as they may reasonably request from time to time, on all matters of law pertaining to their said offices. In consideration of such legal services as aforesaid, the party of the first part, the Board of Commissioners of Jay County, promise and agree to pay the party of the second part, Taylor and Hartford, the sum of $200 per year, payable quarterly; and in case they have to go to any other county to litigate any action in NOTE.-See Barnard v. Knox Co. (Mo.) 2 L. R. A. which the Board of Commissioners is a party, 426. to pay their reasonable expenses, including In witness whereof, the party of the first part and the party of the second part have hereunto set their hands and seals this 14th day of September, 1887. railroad fare and board incurred in attending | December 6, 1887, and at a time when the to such litigation. Board had an attorney employed whose term of service would not expire for three months and not until after the reorganization of the Board, as stated in the answer. We know as a matter of law that within the time over which the employment under the contract extended the Board must be reorganized at least three times, because of the expiration and commencement of the terms of its members; that before the said 6th day of December, 1890, there will not be a single member of the Board whose term had commenced and was running at the date of the contract, unless thereafter reelected. L. J. Craig, The complaint is in two paragraphs, to which demurrers were addressed and overruled by the court, and one of the errors assigned rests upon the ruling of the court in overruling said demurrers; but as counsel for the appellant waive this alleged error in their brief we are not called upon to consider the questions thereby raised. The appellant answered the complaint in three paragraphs, the first being a general denial. Demurrers were addressed to the second and third paragraphs; the demurrer to the second paragraph was overruled and the demurrer to the third paragraph sustained and exceptions taken. At the request of the appellant the court made a special finding, and upon the facts found stated as conclusions of law that the contract was valid and binding upon the appellant, and that the appellees were entitled to recover the sum of $50. The appellant excepted to the conclusions of law and judgment was rendered for the appellees. It is admitted by the demurrer that the contract was entered into for the purpose and with the intention of binding the new Board (so to speak) to accept the services of legal advisers not of its own choosing. If the contract, such as it is and entered into for the purpose stated in the answer, is not contrary to public policy, then the demurrer was properly sustained to the answer; but if not a valid and binding contract for the reason that it is against public policy, the demarrer should have been overruled. In considering this question the effect upon the public interest must have a controlling influence. To assume that the contract is voidable only is to concede that the Board had the power to enter into such a contract, and if power existed to make the contract it must be regarded as valid and binding, unless tainted with fraud sufficient to avoid or rescind it. ship, will not of itself constitute fraud. McCormick v. Boston, 120 Mass. 499; Bay State Brick Co. v. Foster, 115 Mass. 431; benjamin v. Wheeler, 8 Gray, 409; Soon Hing v. Crowley, 113 U. S. 703 128 L. ed. 1145]; Oglesby v. Attrill, 105 U. S. 605 [26 L. ed. 1186]. The substance of the third paragraph of answer is about as follows: At the time the con- The execution of the contract for the purtract mentioned in the complaint was entered pose of binding the Board in the future and into, the Board had in its employ as its attor-after there has been a change in its memberney and legal adviser one John M. Smith, whose term of employment continued until the day of December, 1887, at which date the Board would be reorganized, the term of one of its members expiring and that of another commencing; that the said contract was an employment for a period of time commencing in the future and after the reorganization of the said Board, and was executed for the purpose and with the intention of binding the Board as it would be organized on said day of December, 1887, to accept the services of legal advisers not of its own selection; that appeilees never as umed the duties of county at torneys under the said contract, and that the Board as thereafter constituted had employed Thomas Bosworth as its legal adviser, who is still serving in that capacity. The answer was not skillfully drawn and is not specific in its averments. If the averments in the answer were as broad as the facts stated in the special finding (not in detail, but as would be proper in pleading), the questions intended to be presented could be considered with much more satisfaction by this court. The contract must be regarded as a valid and binding contract, or as void ab initio because of the fact that it is a contract which is against public policy. The Board of Commissioners has authority to employ counsel in matters pertaining to the business of the county, and to give to the members of the Board legal advice in relation to their official duties. If the contract in question is binding, the Board of Commissioners at one session may employ counsel to serve the Board as then organized, and at the same time employ counsel to serve it in advance and at a time when it is known the membership of the Board will be different. It is true that under the contract in question the beginning of the term for which the appellees were employed was only postponed three In considering the answer we must not over-nonths from the date of the employment, but look the character of the contract which is the in the mean time the term of office of one memfoundation of the action. The contract, to say the least of it, is a remarkable one, entered into under unusual circumstances and which would seem to indicate that the motive which prompted its execution was not the welfare of the public. By its terms and conditions the services of the appellees are contracted for for a period of three years from ber of the Board expired and that of another began; and if, under such circumstances, attorneys could be employed three months ahead, why not for one, two or three years in advance? But the most obnoxious feature which we find in the contract is the length of time for which the appellees were employed. We know, as a matter of law, as we have already | this litigation is of that character. It ties the said, that the membership of the Board will be bands of the Board of Commissioners and is changed as much as three times from the date prejudicial to the free exercise of its power and of the employment to the expiration of the functions for the public good. time of service, unless some of its members are re elected, and in that case the terms of office will be different. Unless some of its members are re-elected there must be an entire change in the membership of the Board between the date of the employment and the expiration of the time covered by the contract. This contract deprives the Board, as reorganized from year to year, of the right to employ its attorney for the next following year. In West Virginia Transp. Co. v. Ohio River Pipe Line Co., 22 W. Va. 600, 46 Am. Rep. 527, the court says: "The common law will not permit individuals to oblige themselves by contract either to do or not to do anything when the thing to be done or omitted is in any degree clearly injurious to the public," citing Chappel v. Brockway, 21 Wend. 159. See People v. Chicago Gas Trust Co. supra. The case of Reubelt v. Noblesville, 106 Ind. If such contracts are binding, then no differ-478, 4 West. Rep. 509, is relied upon by the ence how distasteful an attorney may be to the members of the Board, or how little confidence they may have in his ability, legal learning or honesty, so long as he performs the conditions of the contract on his part they are bound to recognize him, accept his services and assume the responsibility. And if the contract in question, extending, as it does, over a period of three years, is valid, why may not a like contract covering a period of six, nine or a dozen years be upheld? Our conclusion is that the contract is against public policy and void. In St. Joseph & Denver City R. Co. v. Ryan, 11 Kan. 602, 15 Am. Rep. 357, it is said by the court: "Railroad corporations are, as we have seen, public agencies and perform a public duty. They are agencies created by the public, with certain privileges and subject to certain obligations. A contract that they will not discharge or by which they cannot discharge those obligations is a breach of that public duty and cannot be enforced." appellees. That case involved the right of the school trustees of the town to employ a school superintendent for the following school year, and before the reorganization of the school board in June, as provided by law. The ap pellee rested its case upon the construction to be placed upon $ 4439, Rev. Stat. 1881, claiming that, by the provisions of that section, the board of school trustees as organized in May could not elect a superintendent for the next school year, and thereby bind the board as organized in June, and the case went off upon that question. In that case the employment was only for one year. We apprehend that, if the board of trustees had undertaken to employ the superintendent for three years, a different conclusion would have been reached. We have not overlooked the suggestion made by counsel for the appellees that the Board of Commissioners is a corporation, and continues as such notwithstanding its membership may be changed, and is liable for all contracts which it has the power to make. But the question before us is one of power, and, as we have said, we do not think the Board had the power to make the contract in suit. This portion of the opinion is quoted with approval by the Supreme Court of lowa in the case of Wiliamson v. Chicago, R. I. & P. R. Co. 53 Iowa, 126. See Fuller v. Dame, 18 Pick. 472, opinion by Shaw, Ch. J., which is The judgment is reversed, with instructions to a leading case upon the subject under consid-overrule the demurrer to the third paragraph of eration; Guernsey v. Cook, 120 Mass. 501. In Craft v. McConoughy, 79 Ill. 346, the Supreme Court of Illinois said: "Whatever is injurious to the interest of the public is void on the ground of public policy." This language is quoted and approved in the recent case of People v. Chicago Gas Trust Co., decided by the same court in a learned and exhaustive opinion. (III.) 22 N. E. Rep. 798. In Wiley v. Baumgardner, 97 Ind. 66, whatever is injurious to public interest is recognized as contrary to public policy. It is evident that the contract involved in answer. reasonable. Under the English Railway and Canal Traffic Act of 1854 (17 and 18 Vict. chap. 31, §7), such stipulations are called “conditions," and they can be upheld only when they "shall be adjudged . . . to be just and reasonable." The same criterion is uniformly applied rier's common-law liability, in whatever form in this country, and no limitations of the carmade, will afford protection unless just and reasonable in the eyes of the law. New York Cent. R. Co. v. Lockwood, 84 U. S. 17 Wall. 357 [21 L. ed. 627]; Hart v. Pennsylvania R. Co. 112 U. S. 338 [28 L. ed. 720]; Marr v. W. U. Teleg. Co. 85 Tenn. (1 Pickle) 542; Merchants APPEAL by defendant from a judgment of Dispatch Transp. Co. v. Bloch, 86 Tenn. the Circuit Court for Davidson County in favor of plaintiffs in an action to recover the value of certain cotton which was burned while in possession of defendant for transportation. Affirmed. The facts are fully stated in the opinion. lees. Caldwell, J., delivered the opinion of the court: (2 Pickle) 397. Though such is the generally accepted test, the use of these words ("just and reasonable") will not always meet the requirements of investigation. What will be just and reasonable in one case may not be so in another. The justness and reasonableness of the condition or limitation must of necessity depend upon the peculiar facts and circumstances of every case, -the nature of the article to be conveyed, the hazard of the transportation, the surroundings of the parties at the time, and the mutual advantages giver and received. dence in favor of reasonableness is to show that the condition was not forced upon the customer, but that he had a fair alternative of getting rid of the condition, and yet agreed to it.” Redman, Railway Carr. 2d ed. p. 66, citing Lewis v. Great Western R. Co. 47 L. J. N. S. Q. B. 131. On the 18th day of October, 1885, W. F. Embry, as agent of Gilbert, Parks & Co., de- Referring to the burden and weight of proof, livered seven bales of cotton to the Louisville an eminent British author says: "The burden & Nashville Railroad Company at Columbia, of proving the reasonableness of a condition Tenn., for shipment to his principals at Nash-lies upon the company. The most cogent eviville. Before its departure, and while yet in the depot of the Company at Columbia, it was destroyed by fire. Thereafter Gilbert, Parks & Co. sued the Railroad Company for nondelivery. The action originated before a justice of the peace, from whose judgment there was an appeal to the Circuit Court at Nashville. Here the case was tried by his honor, the circuit judge, without a jury, and judgment was rendered in favor of the plaintiffs for the agreed value of the cotton, interest and costs. The Railroad Company has prosecuted an appeal in error to this court. There is no controversy about the consignment, loss and value of the cotton; nor is there any denial that the defendant Company would be liable for the loss, under the rules of the common law. These are all conceded. But it is insisted in behalf of the Company that its common-law liability was limited by special contract, and that special contract is relied upon in bar of any recovery. The bill of lading under which the shipment was to be made is produced in evidence. It contains a fire clause which stipulates that the Company shall not be liable for loss or damage by fire. This is the special contract through which exemption from hability is sought. The plaintiffs deny the validity of that stipulation, and thus the issue for our determination is presented. In further treating on the same subject, the same writer, on page 71, says: "To enable a company to rely on an alternative contract offered to the customer, it must appear that such alternative was itself reasonable. A company cannot offer the choice of two unreasonable conditions, and then rely on the one actually chosen,"-citing Lloyd v. Waterford & L. R. Co. 15 Ir. C. L. 37. To the same effect as the latter quotation is the Marr Case, decided by this court in 1886. There the telegraph company was shown to have had four different rates of charges, with as many different degrees of liability. They were all held to be unreasonable, and the fact that the customer choosing one rate had the option of taking any one of the other three was of no avail to the company, in an action for damages. Marr v. W. U. Teleg. Co. 85 Tenn. (1 Pickle) 545. The alternative must be both reasonable and bona fide. If either unreasonable or colorable only, it will be unavailing as a defense to the action against a carrier. A company standing before the public as a common carrier, and enjoying the advantages and franchises as such, must be ready to do the business of a common It is now too well settled to admit of debate that the common-law liability of common carriers may be limited by special contract, even to the extent of denuding them of the character of insurers, except as against their own neg-carrier, with the full measure of responsibility ligence, or that of their agents and servants; and the limitation may be, and is generally, embraced in the bill of lading delivered to the shippers at the time. It is not every such special contract, however, that is effective. To be valid, it must be fairly obtained, and just and imposed by the common law; and it may at the same time offer to do the same business with a limited liability, the limitation resting upon a sufficient consideration. An offer or readiness to transport the goods of its customer with the one or the other degree of responsibility, at his |