GUIDE-POSTS, DRINKING-TROUGHS, AND FOUNTAINS.
The statutes undertake to provide for the erection and maintenance
of guide-posts at suitable places on the public ways; but a person
has to travel but little in many of the towns of the State to come
to the conclusion that the law is either deficient in construction
or a dead letter in execution. The law makes it incumbent upon the
selectmen or road commissioners of each town to submit to the
inhabitants, at every annual meeting, a report of all the places in
which guide-posts are erected and maintained within the town, and of
all places at which, in their opinion, they ought to be erected and
maintained. For each neglect or refusal to make such report they
shall severally forfeit ten dollars. After the report is made the
town shall determine the several places at which guide-posts shall
be erected and maintained, which shall be recorded in the town
records. A town which neglects or refuses to determine such places,
and to cause a record thereof to be made, shall forfeit five dollars
for every month during which it neglects or refuses to do so.
At each of the places determined by the town there shall be erected,
unless the town at the annual meeting agrees upon some suitable
substitute therefor, a substantial post of not less than eight feet
in height, near the upper end of which shall be placed a board or
boards, with plain inscription thereon, directing travellers to the
next town or towns and informing them of the distance thereto.
Every town which neglects or refuses to erect and maintain such
guide-posts, or some suitable substitutes therefor, shall forfeit
annually five dollars for every guide-post which it neglects or
refuses to maintain.[23] These forfeitures can be recovered either by
indictment or by an action of tort for the benefit of the county
wherein the acts of negligence or refusal occur; and any interested
or public-spirited person can make complaint of such negligence or
refusal to the superior court, or to any trial justice, police,
district or municipal court, having jurisdiction of the matter.[24]
[23] Pub. St. c. 53, Secs. 1-5.
[24] Pub. St. c. 217; 108 Mass. 140.
The selectmen may establish and maintain such drinking-troughs,
wells, and fountains within the public highways, squares, and
commons of their respective towns, as in their judgment the public
necessity and convenience may require, and the towns may vote money
to defray the expenses thereof.[25] But the vote of a town
instructing the selectmen to establish a watering-trough at a
particular place would be irregular and void, because towns in their
corporate capacity have not been given the right by statute to
construct drinking-troughs in the public highways. And towns would
not be liable for the acts of the selectmen performed in pursuance
of this statute, because the law makes the selectmen a board of
public officers, representing the general public, and not the agents
of their respective towns. However, if the inhabitants of a town
should construct a drinking trough or fountain of such hideous
shape, and paint it with such brilliant color, that it would
frighten an ordinarily gentle and well-broken horse, by reason of
which a traveller should be brought in contact with a defect in the
way or on the side of the way, and thus injured, the town might be
held liable to pay damages.[26]
[25] Pub. St. c. 27, Sec. 50.
[26] 125 Mass. 526.
It is my purpose to state what the law is, and not what it ought to
be; but I will venture the suggestion that it would not be an
unreasonable hardship on towns to require them to establish and
maintain suitable watering-troughs at suitable places, and it would
be a merciful kindness to many horses which now frequently have to
travel long distances over dusty roads in summer heat without a
chance to get a swallow of water from a public drinking-trough.