The acts complained of by the plaintiff were done by the officers of the town in repairing a highway which the defendants were bound to keep in repair. Both parties assume that the defendants must be liable for the acts of their officers, if they wmre illegal. The acts consisted of placing earth on the road in front of the plaintiff’s mill, so as to raise the surface of the road, and changing and re-arranging certain water bars a short distance westward of the mill. The effect of these alterations was to change the course of the surface water which came upon the highway, so that the water ran down upon the plaintiff’s premises and injured his mill. There being a large tract of land from which the water came down upon the highway, the injury done by it to the plaintiff was very considerable But it still remained surface water, as distinguished from water running in what is known in law as a watercourse.
*293It is settled that within the limits of a highway the officers of the town may construct drains and culverts, and if the surface water, after flowing in them for some distance, turns upon the land of an adjoining proprietor, no action lies for the damage thereby occasioned. Flagg v. Worcester, 13 Gray, 601, and cases there cited. Dickinson v. Worcester, 7 Allen, 19. Barry v. Lowell, 8 Allen, 127. And as the defendants are bound to make their highways safe and convenient for travellers, they and their officers are protected in doing it, so long as they act within the scope of their authority, and are not bound to submit the propriety of their judgment or their motives to the supervision of a court or jury. Benjamin v. Wheeler, 8 Gray, 409.
On the other hand, we have just decided in Franklin v. Fisk, ante, 211, that town officers have no right to extend their drains or culverts beyond the limits of the highway, and, if they conduct their drainage to the adjoining land, the proprietor may erect such structure as he pleases up to the line of his land, and keep off the water thereby. When a highway is laid out, a compensation is allowed to the proprietor of the land for all the damage it will occasion, both direct and incidental. When it exists as an ancient way, the adjoining proprietors purchase their lands subject to the rights of the public. One of these rights is that of keeping the travelled path free from surface water in such manner as the officers of the town think proper. These principles are decisive of this case. If the plaintiff has any remedy, it must be such as the statute gives.
Exceptions overruled.