Bulger v. Inhabitants of Eden.

• Decision Date: 17 February 1890
• Citation: 19 A. 829,82 Me. 352
• Parties: BULGER v. INHABITANTS OF EDEN.
• Court: Maine Supreme Court

19 A. 829

82 Me. 352

BULGER

v. INHABITANTS OF EDEN.

Supreme Judicial Court of Maine.

Feb. 17, 1890.

(Official.)

Report from supreme judicial court, Hancock county.

Wiswell, King & Peters, for plaintiff. Deasy & Higgins, for defendant.

FOSTER, J. The facts stated in the plaintiff's declaration present an action on the case against the defendant town for damages caused by the negligent construction of a public sewer in a public street. The alleged negligence consists in the great length of time during which the street was dug up, and in filling the excavation with farm dressing, thereby creating a nuisance by which the plaintiff suffered special damages in his business, comfort, property, and the enjoyment of his estate, and for which he claims to be entitled to recover of the defendant town. If the town is liable upon the facts set out in the declaration, the action is to stand for trial; otherwise the plaintiff is to become nonsuit.

It is not denied that whatever was done, and for which it is claimed that the town should be held liable, was done by the municipal officers. The allegation in the writ is that the "town, while in the course of constructing a public sewer in the middle and throughout the length of said Cottage street, under and by virtue of the statutes of this stale, unlawfully, unjustifiably, and without sufficient cause entered upon said street, and dug up, destroyed, and ploughed the same," etc.

While admitting the general doctrine that no private action can be maintained against a town or quasi public corporation for a neg lect of corporate duty, unless such right of action be given by statute, the plaintiff's contention is that if a town, while acting within the scope of its municipal power, creates a nuisance to the injury of an individual, it is liable in damages therefor.

If we concede the correctness of the plaintiff's proposition, then the difficulty of maintaining this action is by no means removed, inasmuch as the allegations contained in the declaration do not bring the acts complained of within scope of the corporate powers of the town; nor is there any allegation that such acts were performed by its officers in the discharge of any corporate duty imposed by law upon the town. Seele v. Deering, 79 Me. 347, 10 Atl. Rep. 45; Anthony v. Adams, 1 Mete. 284. The town has no duty whatever in relation to the construction of public drains or sewers which renders it liable in an action like the present. The municipal officers of towns are constituted a tribunal by the statutes of this state, whose duty it is, whenever they deem it necessary for public convenience or health, to construct public drains or sewers along or across any public way at the expense of the town, and to have control of the same. Rev. St. c. 16, § 2; Laws 1844, c. 94; Laws 1860, c. 153; Estes v. China, 56 Me. 410.

The earlier enactments, of which the present statute is only a condensation, upon examination will be found to contain directions to the municipal officers as to the manner in which they shall construct such drains. There is no general statute authorizing towns in their corporate capacity to lay out or construct drains or sewers, as there is respecting ways. It is only when such drains have been constructed, and persons have paid for connecting with them, as provided in section 9, that the town becomes responsible in regard to maintaining and keeping the same in repair, and assumes responsibilities in reference thereto. Blood v. Bangor, 66 Me. 154; Darling v. Bangor, 68 Me. 110. Provision being made by general statute law for the laying out and construction of public drains and sewers by the municipal officers, no such authority can properly be claimed as necessarily incident to the town in the exercise of its corporate powers, or the performance of its corporate duties. The municipal officers in the performance of these duties, and in the exercise of the authority with which they are invested by general law, act, not as agents of the town, but as public officers, deriving their power from the sovereign authority. They act upon their own responsibility, and are not subject either to the control or direction of the inhabitants of the town, "but are an independent board of public officers, vested by law with the control of all matters within their jurisdiction, and performing duties imposed by general laws." Brimmer v. Boston, 102 Mass. 22; Burrill v. Augusta, 78 Me. 118, 3 Atl. Rep. 177; Woodcock v. Calais, 66 Me. 235; Estes v. China, supra; Lemon v. Newton, 134 Mass. 479; Child v. Boston, 4 Allen, 41; Tindley v. Salem, 137 Mass. 173, 174; Cushing v. Bedford, 125 Mass. 528.

Though chosen and paid by the town, and for many purposes its agents, (as in making contracts within the scope of their authority about the affairs of the town, or acting under the direction of the town in matters pertaining to its corporate duties, Deane v. Randolph, 132 Mass. 475,) yet these officers do not sustain this relation in reference to these particular duties in question. In this respect they are a part of the municipal government, in the performance of their public duties, and are not servants or agents of the municipality by whom they are chosen and paid, rendering their principals liable for their acts, any more than are officers of a fire department, (Burrill v. Augusta, 78 Me. 118, 3 Atl. Rep. 177; Hafford v. New Bedford, 16 Gray, 297;) or surveyors of highways and street commissioners when making, repairing, or otherwise performing their official duties upon highways or streets, (Small v. Danville, 51 Me. 359; Woodcock v Calais, 66 Me. 235; Walcott v. Swampscott, 1 Allen, 101; Barney v. Lowell, 98 Mass. 570;) or health officers, or municipal officers, in the discharge of their duties in relation to contagious diseases, (Mitchell v. Rockland, 52 Me. 118; Brown v. Vinalhaven, 65 Me. 402; Barbour v. Ellsworth, 67 Me. 294;) or police officers, (Cobb v. Portland, 55 Me. 381; Buttrick v. Lowell, 1 Allen, 172;) or overseers of the poor, (Farrington v. Anson, 77 Me. 406; New Bedford v. Taunton, 9 Allen, 207,) —in all of which there is an absence of corporate liability; nor can third persons, injured either by the negligence, carelessness, or unskillfulness of such officers while in the performance of duties imposed upon them by the statutes in such cases, invoke against their municipality the rule of respondeat superior.

The liabilities of municipal corporations for the torts or negligent acts of their officers are fixed by statute. They are to be held liable for the negligence or misconduct of their officers only when made so by express statute, or the act out of which the claim originates was within the scope of their corporate powers, and was directly and expressly ordered by the corporation. Burrill v. Augusta, supra; ...