Kidson v. City of Bangor

• Citation: 58 A. 900,99 Me. 139
• Parties: KIDSON v. CITY OF BANGOR.
• Decision Date: 09 July 1904
• Court: Supreme Judicial Court of Maine (US)

58 A. 900

99 Me. 139

KIDSON

v. CITY OF BANGOR.

Supreme Judicial Court of Maine.

July 9, 1904.

(Official.)

Action by Samuel J. Kidson against the city of Bangor. Verdict for plaintiff for $318.33. Motion for a new trial. Sustained.

Case to recover damages for alleged violation by defendant of the duty imposed on cities and towns by Rev. St. c. 21, § 18, to maintain and keep public drains and sewers in repair.

The plaintiff had entered a private drain from his premises at the corner of Wing street and West Broadway, in the city of Bangor, into what he claimed to be a public drain or common sewer.

It appeared in evidence that the plaintiff paid to the city of Bangor March 25, 1800, "for assessment for sewerage" on the premises alleged to have been damaged, $31.55. It was also in evidence that the superintendent of sewers of the city directed the plaintiff to enter his private drain with the sewer in question, which was done under his direction and to his satisfaction. It appeared by the records in evidence that the reports of the superintendent of sewers and the sewer board reporting the actual construction of the sewer in question through Wing street instead of "in Hammond street from Pier street westerly to the lot of Fred L. Thompson," as originally and formally laid out, and assessing the property benefited, were considered by the municipal officers, and the following records were appended to said reports:

"In Board of Municipal Officers.

"Nov. 7, 1894.

"Report accepted, assessments established & ordered that hearing be granted all persons assessed at the Aldermens' room Dec. 19, next, at 7.30, P. M.

"Victor Brett, City Clerk." "In Board of M. Officers Dec. 26, 1894. "Finally revised and amended by fixing all assessments at $31.55 each, and by abating assessment on lot No. 13 to J. A. Boardman, & als. amended finally established.

"Victor Brett, City Clerk."

The plea was the general issue.

Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

A. L. Blanchard, for plaintiff.

T. D. Bailey, City Sol., for defendant.

PEABODY, J. The plaintiff commenced an action on the case against the city of Bangor to recover damages alleged to have resulted from the overflowing of a public drain or sewer in his premises. The wrong complained of was, following the language of Rev. St. 1903, c. 21, § 18, the failure of the defendant to "constantly maintain said drain and keep it in repair so as to afford sufficient and suitable flow for all drainage entitled to pass through it." The statute provides that, "if such town does not so maintain and keep it in repair, any person entitled to drainage through it may have an action against the town for his damages thereby sustained."

Upon trial before a jury a verdict was rendered for the plaintiff, and damages assessed at $318.33.

This case is brought before the law court by the defendant on motion for a new trial and on exceptions.

To entitle the plaintiff to a verdict, he must have established the following propositions:

(1) That the drain in question was a public drain or sewer, one legally established by act of the municipal officers of the city of Bangor. Estes v. China, 56 Me. 407; Darling v. Bangor, 68 Me. 108; Bulger v. Eden, 82 Me. 352, 19 Atl. 829, 9 L. R. A. 205.

(2) That the plaintiff was a person entitled to drainage through it; not a mere trespasser, but one who had fulfilled the requirements of law which were conditions precedent to the enjoyment of the right of drainage. Sp. Laws 1887, p. 347, c. 242, § 3; Bulger v. Eden, 82 Me. 352, 19 Atl. 829, 9 L. R. A. 205; Evans v. Portland, 97 Me. 509, 54 Atl. 1107.

(3) That the defendant had failed to maintain the sewer or to keep it in repair so as to afford sufficient and suitable flow for all drainage entitled to pass through it. And on this point it must be shown that the defect was not in the original system established by the judicial act of the municipal officers, but that there was an actual failure on the part of the city to maintain and keep the drain in repair after its construction.

(4) That the plaintiff suffered injury from this neglect of the city to properly repair and maintain the sewer.

There seems to be sufficient ground for the jury to have determined the third and fourth of these propositions in favor of the plaintiff, although there is conflicting evidence as to whether the overflowing of the drain was the natural result of a system of drainage faulty in conception and construction, or was due to the subsequent addition of a number of catch-basins not contemplated in the original plan, which, as it is claimed, did not intend to provide for the drainage of surface water. It being entirely reasonable for the jury to have concluded from the evidence that the injury was caused by the negligence of the city in the maintenance of the sewer after it had been laid out and constructed, they would naturally come to the further conclusion that the plaintiff had sustained damage in consequence of this negligence.

It seems probable that the jury, in considering this branch of the case, failed to give due weight to the first two propositions. In respect to the plaintiff's right of drainage through this sewer upon which his claim for damages is necessarily founded, the evidence shows no literal compliance with the terms of the statute or the city ordinances. His permit to enter the sewer was admittedly only verbal; but he claims that by virtue of sectton 3, c. 242, p. 347, of the Special Laws of 1887, relating to drains and sewers in the city of Bangor, he had a right to enter the sewer, and that the formality of a written permit was waived, or at least the omission of this formality was cured by subsequent ratification by the city in receiving his assessments, and otherwise acquiescing in his connection with the sewer. The special law relied on as giving the plaintiff greater and different rights from those accorded by the general laws provides as follows: "Any person may enter his private drain into any such public drain or common sewer, while the same is under construction and before the same is completed, and before the assessments are made, on obtaining a permit in writing from the municipal officers, or the sewer board having the construction of the same in charge. * * *" Sp. Laws 1887, p. 347, c. 242, § 3.

Whether this statute placed the plaintiff on the footing claimed by him in respect to his entry of the sewer, or whether there could be a waiver of the written permit required by the law or a subsequent ratification by the city of the informal or unauthorized acts of its agents under the circumstances indicated, are questions of serious importance. They were decided in favor of the plaintiff by the jury, and perhaps correctly, under the instructions of the court. This need not, however, be determined under the motion for a new trial, as the subject may more properly be considered, if found necessary, in discussing the exceptions. But a consideration of the remaining point reveals a lack of competent proof, which is conclusive of the case.

The special law just referred to, as well as the general statute, deals explicitly with public drains and sewers. These are such as are established and constructed by the direction and in accordance with the formal action of the board of...