These are three actions of tort to recover damages for injury to personal and real property by reason of *588the negligent construction and maintenance and improper and illegal use by the defendant, of a certain sewer in Bow Street in the defendant city. At the close of the evidence the judge ruled that the actions could not be maintained.

The sewer was being used for carrying away sewage and surface water. There is nothing to show that it was not originally intended for drainage of surface water. It was not contended that the sewer was out of repair. The only trouble seemed to be that by the construction of catch basins it was overloaded with surface water. The doctrine that the defendant is not liable for a lack of capacity due to the original plan (Child v. Boston, 4 Allen, 41) is applicable here although the sewer was constructed before the incorporation of the defendant as a city. The case must be classed with Buckley v. New Bedford, 155 Mass. 64, and similar cases. Manning v. Springfield, 184 Mass. 245.

The evidence that the trouble of which the plaintiffs complained was remedied by the construction of a new sewer in Langdon Street was immaterial and rightly rejected.

Exceptions overruled.