Auburn Sewerage Dist. v. Whitehouse

Decision Date07 May 1929
Citation146 A. 80
PartiesAUBURN SEWERAGE DIST. v. WHITEHOUSE.
CourtMaine Supreme Court

Exceptions from Superior Court, Androscoggin County.

Action of debt by the Auburn Sewerage District against George I. Whitehouse. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

Aruged before WILSON, C. J., DUNN, STURGIS, BARNES, PATTANGALL, and FARRINGTON, JJ.

George C. Wing, Jr., of Auburn, for plaintiff.

Berman & Berman, of Lewiston, for defendant.

PATTANGALL, J. On exceptions. Action of debt to recover a sewer construction assessment. Plea general issue with brief statement setting forth that defendant is not liable because the estate upon which the assessment is levied, by reason of its grade and level and the contour of the surrounding land and highways, cannot be drained into the sewer for which the tax is assessed.

The case was tried before a single justice, without a jury, and judgment rendered for the plaintiff.

The plaintiff, a quasi municipal corporation, was created by chapter 193 of the Private and Special Laws of 1917, amended by chapter 82 of the Private and Special Laws of 1919. Section 2 of the act provides that "all powers and duties which may be exercised with respect to the sewer system conferred upon the City of Auburn, or upon the municipal officers of the City of Auburn by the general laws of the State, except as hereinafter excepted, shall be vested in the Auburn Sewerage District."

Section 3 provides for the transfer from the city of Auburn to the district of the entire sewerage system "excepting the street catchbasins and their connections with the sewer mains," and the city of Auburn has, since the taking over of the system by the district, continued to own and control the catch-basins and has built new catch-basins from time to time, connecting them with the plaintiff's sewer system.

Defendant is the owner of a lot of land in Auburn on which are two houses. Plaintiff constructed a sewer along one of the streets bounding the property. Both houses connect with the sewer, and it is admitted that defendant's needs so far as domestic or toilet sewage are concerned are satisfactorily served. But no catch-basins have been constructed in connection with the sewer, although it is of sufficient capacity to take care of surface drainage, and defendant's refusal to pay the assessment rests upon the failure of the district to provide means to care for the flow of surface water which by reason of the contour of the land flows upon his lot from adjoining property.

Section 10 of the act provides that "no assessment shall be made upon any estate which, by reason of its grade or level, or for any other cause, cannot be drained into such sewer, until such incapacity is removed."

Plaintiff asserts that it has nothing to do with the construction and maintenance of catch-basins, and is under no obligation to provide drainage for surface water flowing upon and over defendant's land from the adjoining lots.

The issue,...

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4 cases
  • Fowler v. Barlow
    • United States
    • United States State Supreme Court of Vermont
    • 8 Mayo 1929
  • Frank W. Fowler v. Charles C. Barlow Et Ux
    • United States
    • United States State Supreme Court of Vermont
    • 8 Mayo 1929
  • Frost v. Lucey
    • United States
    • Supreme Judicial Court of Maine (US)
    • 7 Julio 1967
    ...Maine Central Railroad Company, 112 Me. 63, 90 A. 711 (1914); Libby v. Long, 127 Me. 293, 143 A. 66 (1928); Auburn Sewerage District v. Whitehouse, 128 Me. 160, 146 A. 80 (1929); Inhabitants of Town of Georgetown v. Reid, 132 Me. 414, 171 A. 907 (1934). Our Court has made an exception where......
  • State v. Graves
    • United States
    • Supreme Judicial Court of Maine (US)
    • 14 Noviembre 1966
    ...at the trial will not be considered on exceptions.' Bixler v. Wright, 116 Me. 133, 134, 100 A. 467, 468; Auburn Sewerage District v. Whitehouse, 128 Me. 160, 163, 146 A. 80. 'A ground of exception not stated in the trial court cannot be stated on appeal.' Moore, Appellant, 113 Me. 195, 199,......

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