Attwood v. City of Bangor

• Decision Date: 17 June 1891
• Parties: ATTWOOD et al. v. CITY OF BANGOR.
• Court: Maine Supreme Court

22 A. 466

83 Me. 582

ATTWOOD et al.

v. CITY OF BANGOR.

Supreme Judicial Court of Maine.

June 17, 1891.

(Official.)

Report from supreme judicial court, Penobscot county.

C. H. Bartlett, for plaintiffs.

H. L. Mitchell, City Sol., for defendant.

LIBBEY, J. This is an action on the case to recover damages for the location, construction, and maintenance of an addition or extension of a sewer in the "Ferry-Way," so called, in the city of Bangor, with its terminus below low-water mark in the Penobscot river, whereby the plaintiffs' berth or dock was rendered of less value by reason of vessels lying at said dock being in danger of getting aground on the end of said sewer, on the materials used in its construction, and on the sediment from the sewage coming therefrom, and by reason of noxious smells arising ii'om said sewage, by reason of all which the rents of the plaintiffs' wharf are decreased.

The case comes before this court for determination upon a report of the evidence. We think the plaintiffs' title to their wharf is sufficiently proved. After describing the location of the sewer as extended, and the manner in which it is constructed, the plaintiffs state their claim for damages as follows: "That by reason of the negligent and improper location of said sewer, the terminus being in an eddy in said river, the sewage from said sewer is not carried away by the tide, and said sewage is deposited on the plaintiffs' flats and in their dock, by reason whereof noxious and unhealthy odors arise, and said dock is being rapidly filled up by said sewage, by reason of all which the plaintiffs' wharf is rendered of much less value, in that they are deprived of large sums' of money which would otherwise be paid them for wharfage by vessels and steam-boats lying at said wharf." The sewer as originally constructed leads down Union street to the shore of the Penobscot river. It discharged its sewage upon the flats above low-water mark, and at certain seasons of the year created a nuisance, to abate which the city council of Bangor passed the following order: "That the superintendent of sewers be, and he is hereby, directed to cause the Union-Street sewer to be extended from its present terminus to low-water mark in Penobscot river." Acting under that order, the superintendent of sewers extended the sewer, not in its direct course, but by an angle placed it nearer the plaintiffs' wharf than it would have been if directly extended. The counsel for plaintiffs contends that the extension in that manner was not authorized by the city, and is therefore illegal. If that contention is correct, then the action cannot be maintained against the city, because it was without the authority of the city. Woodcock v. Calais, 66 Me. 234.

Independent of any evidence tending to show ratification of the acts of the superintendent of sewers, it may be doubtful if the extension was directly within the authority of the city council. But the evidence satisfies us that the city council, with full knowledge of the manner in which the extension was made, ratified the act of the superintendent of sewers, so that we shall pass this objection as not affecting the plaintiffs' right, one way or the other, to...