Charles E. Bates, Et Ux. v. Village of Rutland

• Decision Date: 01 January 1890
• Citation: 20 A. 278,62 Vt. 178
• Parties: CHARLES E. BATES, ET UX. v. VILLAGE OF RUTLAND
• Court: Vermont Supreme Court

20 A. 278

62 Vt. 178

CHARLES E. BATES, ET UX. v. VILLAGE OF RUTLAND

Supreme Court of Vermont

January 1, 1890

JANUARY TERM, 1890

Plea the general issue. Trial by jury, at the September Term 1889, POWERS, J., presiding. At the conclusion of the evidence the defendant moved for a verdict, which motion was overruled. Verdict and judgment for the plaintiff. Exceptions by the defendant.

The judgment is reversed and judgment for the defendant.

Butler & Moloney, for the defendant.

OPINION

TYLER

The defendant is a municipal corporation, organized under a charter granted by the Legislature in November, 1882. Section 1 of its charter defines its boundaries. Its corporate relation to and control of the streets and highways within its limits are set forth in section 46, which is as follows: "All the territory embraced within the limits of said village is hereby constituted a highway district of the town of Rutland, and all the highway taxes assessed upon the polls and ratable estate thereof shall be paid in money and the selectmen of the town of Rutland shall make out a tax bill thereof and deliver the same seasonably, as required by law, with a warrant for its collection, to the collector of said village, who shall collect the same as other taxes of said village are collected, and pay the same over to the treasurer of the village, which money shall be drawn from said treasury by said trustees, and shall be expended by them in building, constructing, maintaining and repairing the streets, highways, walks, alleys, sewers and lanes of said village, and no surveyors of the said highway district shall be required or chosen by said town."

It is provided that its trustees may appoint and remove at pleasure, among other officers, a street commissioner, who shall superintend the construction and repair of streets, walks, culverts, sewers and drains, subject to the authority and discretion of the trustees.

It will be observed that the charter imposes no liability on the village corporation for damages sustained by individuals upon its streets and highways in consequence of defects therein, and it has long been settled law that in the absence of express statutes declaring liability, such defects are not actionable. In Hill v. Boston, 122 Mass. 344, Mr. Justice GRAY makes a very thorough examination of the authorities on the subject and says: "The result of this review of the American cases may be summed up as follows: There is no case in which the neglect of a duty imposed by general law on all cities and towns alike has been held to sustain an action by a person injured thereby against a city when it would not against a town. * * * In the absence of such binding decisions, we find it difficult to reconcile the view that the mere acceptance of a municipal charter is to be considered as conferring such a benefit upon the corporation as will render it liable to private action for neglect of the duties thereby imposed upon it, with the doctrine that the purpose of the creation of municipal corporations by the State, is to exercise a part of its powers of government." * * * See also Parker v. Village of Rutland, 56 Vt. 224; Weller v. City of Burlington, 60 Vt. 28, 12 A. 215.

The town of Rutland was bound by law to maintain all the streets and highways within its boundaries. It maintained those within the village of Rutland, through the instrumentality of the village corporation, which was a mere highway district of the town.

It is needless to decide or discuss the question whether the defendant had a legal...