Brunswick & Topsham Water Dist. v. W. H. Hinman Co.

• Decision Date: 21 October 1957
• Court: Maine Supreme Court
• Parties: BRUNSWICK & TOPSHAM WATER DISTRICT v. W. H. HINMAN CO., Inc. (two cases).

Page 722

136 A.2d 722

153 Me. 173

BRUNSWICK & TOPSHAM WATER DISTRICT v. W. H. HINMAN CO., Inc. (two cases).

Supreme Judicial Court of Maine.

Oct. 21, 1957.

Verrill, Dana, Walker, Philbrick & Whitehouse, Portland, for plaintiff.

L. Smith Dunnack, Augusta, for defendant.

Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, TAPLEY, SULLIVAN and DUBORD, JJ.

SULLIVAN, Justice.

These two cases identical in controlling facts and in issues of law have been certified to this court upon an agreed statement of facts for decision.

The plaintiff is a body politic and corporate and a quasi municipal corporation created by a special, state, legislative act, to supply the inhabitants of two towns with water and, apropos of that, 'to lay in and through the streets and highways thereof, and to take up, repair and replace all such pipes, aqueducts and fixtures as may be necessary for the objects above set forth, and whenever said district shall lay any pipes or acqueducts in any street or highway it shall cause the same to be done with as little obstruction as possible to the public travel, * * *' P. & S. 1903, c. 158.

Prior to March A. D. 1955 and since then the plaintiff has had utility installations in Pleasant and Mill Streets, public highways in Brunswick, Maine and a part of State Highway 1.

The defendant is a resident corporation organized under general laws and for years has engaged in road construction. In December A. D. 1955 and in January A. D. 1956 it undertook, for the State Highway Commission, a State department, to reconstruct a portion of Pleasant and Mill Streets aforementioned. R.S. c. 23, § 40. The State Highway Commission advised the plaintiff of the contract with the defendant before any work was commenced thereon. The defendant, before beginning the street reconstruction, directed the plaintiff to relocate its installed facilities so far as necessary for the work projected.

The plaintiff, as required by the defendant, relocated its facility installations in the altered ways and institutes these actions for reimbursement for that, considerable expense.

The plaintiff contends that its charter excludes control by the municipal officers, that the State Highway Commission had no right to compel the plaintiff to relocate its facilities without compensation, that the plaintiff's facilities installed in the public ways were real estate for the taking of which reimbursement would lie and that equity and good conscience dictate reparation to the plaintiff from the defendant for the costs of relocation.

The defendant is not charged with negligence.

The State Highway Commission was acting in these matters within the scope of its functions on behalf of the State and obviously was possessed of police power. R.S.1954, c. 23, § 19, § 27, 38 etc. In road making and maintenance the Commission was vested with full authority and the complementary discretion and responsibility. The welfare and safety of the public are the very causes for the existence of the Commission.

In a decision lately rendered in the suit of First National Bank of Boston v. Maine Turnpike Authority, Me., 136 A.2d 699, 705, this court stated, with supporting precedents, the law determinative of the issue produced in these cases. It is not deemed necessary to repeat at length here our full commentaries there. We said in part:

'* * * The water districts, therefore, contend that their installations in public ways are more immanent because they derive from special, plenary franchise without any requirement of municipal permits and without reservation as to revocation or alteration. The merits of the present controversy, however, concern themselves primarily with the requirements of public travel and with the police power. The authorities which follow as well as the Maine decisions which precede establish that, whatever hierarchy of privileges in utility installations there may be, the exigencies of public travel and the police power are unremittingly paramount.'

Scranton Gas and Water Company, Appellant, v. Scranton City, 1906, 214 Pa. 586, 64 A. 84, 6 L.R.A.,N.S., 1033, is a case of a water company with a legislative grant to occupy the streets. The utility was denied recovery for the expense of relocating its installations from locations beneath a public street, to other streets when required to remove them because the city and a railroad were building a viaduct to eliminate a dangerous street crossing at grade.

A validly exercised police power can never be relinquished by the legislature.

'* * * The state may in some cases forego the right to taxation, but it can never relieve itself of the duty of providing for the safety of its citizens. This duty, and consequent power, override all statute or contract exemption * * *' (emphasis supplied). Boston and Maine Railroad Company v. County Commissioners, 1887, 79 Me. 386, 393, 10 A. 113, 114.

County Court of Wyoming County v. White, 1917, 79 W.Va. 475, at page 479, 91 S.E. 350, at page 351, L.R.A.1917D, 660:

'* * * The right of the public in the highway, for the purpose of travel in the ordinary modes is a primary and fundamental right, and is not limited to that portion only of the right of way heretofore traveled. Respondents have a permissive and subordinate right only, which exists only so long as it does not interfere with the primary and superior rights of the traveling public. Such primary right to occupy any and all parts of the right of way for the purpose of a roadway necessarily implies the right to widen and improve the traveled portion of the road, whenever it becomes necessary for the better accommodation of the public. This principle was...