Bryant v. Inhabitants of West-Brook

• Decision Date: 29 May 1894
• Citation: 86 Me. 450,29 A. 1109
• Parties: BRYANT v. INHABITANTS OF WEST-BROOK.
• Court: Maine Supreme Court

29 A. 1109

86 Me. 450

BRYANT

v. INHABITANTS OF WEST-BROOK.

Supreme Judicial Court of Maine.

May 29, 1894.

Action by Edna J. Bryant against the inhabitants of Westbrook. Verdict for plaintiff, which defendants move to have set aside. Granted.

Frank & Larrabee, for plaintiff. Wm. Lyons, for defendants.

FOSTER, J. This is an action on the case to recover damages for injuries to the plaintiff's dwelling house, occasioned, as it is alleged, by the negligent construction and maintenance of a catch-basin by the defendant town.

The plaintiff built upon a street which had not at the time been accepted by the town, and constructed a private drain from the cellar to the street and thence down the same to Beaver pond. The street was afterwards accepted by the town. It was necessary, owing to the condition of the land at that place, that there should be some means provided for draining off the surface water; and, after consultation with the husband and agent of the plaintiff, permission was given to the municipal officers to drain the surface water of the street into this private drain by constructing a catch-basin over the same in the ditch by the side of the street, which was accordingly done.

The plaintiff, assuming that the negligence in the construction and maintenance of the catch-basin was legally attributable to the town, bases her claim upon the assumption that the municipal officers, by whose direction the catch-basin was constructed, sustain to the town the relation of an agent to his principal, and that the rule respondeat superior applies, even though they conduct themselves negligently or unskillfully.

It is not claimed that the statute gives a remedy against the town to any one injured by reason of the negligence, inefficiency, or want of skill in this matter. Hence, this action was brought based upon the common law, and a verdict of $1,016.66 was recovered, which the defendants ask to have set aside, as being against law and evidence.

There is no evidence of any vote of the town in relation to this street, or the actions of the municipal officers, except a vote, "to accept when dedicated by metes and bounds in writing and graded satisfactory to the selectmen."

No question is raised as to the acceptance of the street, or that the catch-basin was constructed by direction of the municipal officers. But it does not appear from the evidence whether the town had chosen road commissioners or highway surveyors, or whether the municipal officers had been appointed surveyors, as provided by Rev. St. c. 3, § 14, and were acting in that capacity in constructing this catch-basin.

The plaintiff's drain over which this catch-basin was built was not a public drain or common sewer, within the meaning of the statute, and never became such. Consequently, the town was not responsible in regard to maintaining and keeping the same in repair. Bulger v. Inhabitants of Eden, 82 Me. 352, 19 Atl. 829. The municipal officers, in whatever was done, were not acting as a tribunal in relation to the location or construction of a common sewer, but were repairing the street, and making provisions for the disposition of surface water, in building this catch-basin, and connecting it, by permission, with the plaintiff's private drain.

Notwithstanding this catch-basin may have been improperly and unskillfully constructed, and the plaintiff have suffered special injury thereby, the question presented is whether the town can be held liable in this action.

The answer to that question will be solved in determining whether the municipal officers, in doing what they did, were acting as servants or agents of the town, and for whose negligence or want of skill in the performance of their acts the town would be liable; or as public officers, for whose acts, in the absence of any express statute, or direction on behalf of the municipality, there is a want of corporate liability.

These two phases of character presented by the decisions, and the peculiar liabilities in reference to the different capacities of officers,—whether as agents of the town, or public officers,—are fully recognized and established in this and other states. As to the first, may be noted Anthony v. Adams, 1 Mete. (Mass.) 284; Seele v. Deering, 79 Me. 347, 10 Atl. 45; Hawks v. Charlemont, 107 Mass. 414; Deane v. Randolph, 132 Mass. 475; Waldron v. Haverhill, 143 Mass. 582, 10 N. E. 481; Doherty v. Inhabitants of Braintree, 148 Mass. 495, 20 N. E. 106. As to the second, Small v. Danville, 51 Me. 359; Mitchell v. Rockland, 52 Me. 118; Cobb v. Portland, 55 Me. 381; Woodcock v. Calais, 66 Me. 234; Farrington v. Anson, 77 Me. 406; Bulger v. Inhabitants of Eden, 82 Me. 352, 19 Atl. 829; Goddard v. Inhabitants of Harps well, 84 Me. 499, 24 Atl. 958; and many other cases.

The distinction between the authorities which decide in reference to the liability and nonliability of towns for the unauthorized or wrongful acts of its officers is to be found, on the one hand, where the town has interfered by giving directions, or taken charge of the work by its own agents; and, on the other hand, where there has been no such interference, but the work has been left to be done by public officers in the methods provided by law.

The statute provides for the election or appointment of road commissioners or surveyors of highways, whose duty it is to open and keep in repair public ways legally established within their districts. Though chosen and paid by the town, and supplied with the necessary funds for the performance of their duties, yet these officers do not sustain the relation of servants or agents of the municipality by whom they are chosen and paid, rendering their principals liable for their acts. They are a part of the municipal government, chosen by the town in the performance of a public duty...