Brunswick Gaslight Co. v. Brunswick Vill. Corp.

• Decision Date: 20 February 1899
• Citation: 92 Me. 493,43 A. 104
• Parties: BRUNSWICK GASLIGHT CO. v. BRUNSWICK VILLAGE CORP.
• Court: Maine Supreme Court

43 A. 104

92 Me. 493

BRUNSWICK GASLIGHT CO.

v. BRUNSWICK VILLAGE CORP.

Supreme Judicial Court of Maine.

Feb. 20, 1899.

(Official.)

Exceptions from supreme judicial court, Cumberland county.

Action by the Brunswick Gaslight Company against the Brunswick village corporation. From a ruling that the action was not maintainable, plaintiff took exceptions. Overruled.

Argued before PETERS, C. J., and EMERY, HASKELL, WHITEHOUSE, and SAVAGE, JJ.

Geo. E. Hughes, for plaintiff.

Barrett Potter, for defendant.

SAVAGE, J. This is an action of trespass, in which the plaintiff claims that its pipes, lawfully in the streets of Brunswick village, were broken by the defendant in the course of the construction of sewers. The sewers were constructed by one John H. Flanagan under a contract in writing, which is made a part of the case. The excavations in the streets for sewers were made by license of the municipal officers of Brunswick, and of the assessors of the defendant corporation. The contract with Flanagan appears to have been made in the name of the defendant; but by what authority it was made does not appear. The case was submitted to the presiding justice upon an agreed statement of facts. He ruled that the action was not maintainable, and the plaintiff took exceptions.

1. The act incorporating the defendant (Priv. & Sp. Laws 1887, c. 172) contains, in section 2, the following provisions: "Said corporation within its territorial limits shall have all the rights, powers and privileges which towns have under the first sixteen sections of chapter sixteen of the Revised Statutes, and shall be subject to all the obligations, responsibilities and penalties which the same sections impose upon towns. All powers and privileges granted by the same sections to the municipal officers of towns are hereby granted to the assessors of said corporation." The sections of the Revised Statutes referred to are those which prescribe and limit the duties and responsibilities of towns, and the powers and privileges of municipal officers with respect to the construction and maintenance of sewers.

If it be assumed that the sewers in question were constructed by direction of the defendant's assessors alone, as they might have been under the foregoing provisions of its charter, it is clear that the defendant is liable for acts of trespass or tort committed in the process of construction only when a town would be responsible under like circumstances. Under section 2 of its charter, the defendant has the same authority that a town has,—no more. Its assessors are vested with all the powers of municipal officers in this respect. And the same principles must apply in the case of this village corporation as apply in the case of a town.

The powers and responsibilities of towns in the construction and maintenance of sewers were fully examined and stated by this court in Bulger v. Inhabitants of Eden, 82 Me. 352, 19 Atl. 829, and more recently in Gilpatrick v. City of Biddeford, 86 Me. 534, 30 Atl. 99. The statute imposes no duty upon a town, as such, to build sewers. The construction of sewers is not within the corporate authority of a town. The municipal officers are the only tribunal authorized to construct sewers at the expense of a town. Darling v. Bangor, 68 Me. 106; Bulger v. Eden, supra. For the torts of this tribunal the town is not responsible. Bulger v. Eden, supra. It follows that, if the sewers in this case were constructed by authority of the assessors alone, the defendant is not liable for the torts complained of.

2. But it is provided in section 3 of the defendant's charter that the corporation may "authorize its assessors or its special committee to contract in its behalf for any of the purposes aforesaid." The "purposes" referred to are those specified in the preceding section of the charter, from which we have already quoted, relating to sewers. It would seem that the defendant was by section 3 granted corporate authority to construct sewers. Although this latter section was not alluded to by counsel in argument, still we think it should be considered, for the case does not show explicitly under the provisions of which section the sewers were built. Now, if we assume that these sewers were constructed by the defendant by virtue of its corporate authority, will the plaintiff be placed in a better position? We think not.

The plaintiff, by its charter (Priv. & Sp. Laws 1854, c. 201), obtained "the right to lay gas pipes in any of the public streets...