Clark v. Inhabitants of Tremont

• Decision Date: 16 April 1891
• Citation: 83 Me. 426,22 A. 378
• Parties: CLARK v. INHABITANTS OF TREMONT.
• Court: Maine Supreme Court

22 A. 378

83 Me. 426

CLARK

v. INHABITANTS OF TREMONT.

Supreme Judicial Court of Maine.

April 16, 1891.

(Official.)

Report from supreme judicial court, Hancock county.

Hale & Hamlin, for plaintiff.

Wiswell, King & Peters, for defendants.

LIBBEY, J. The plaintiff seeks to recover of the defendant town the sum of $200, which he alleges the town at its annual meeting in March, 1888, voted to pay him for damage to his horse, received, as he alleges, through a defect in the highway in said town. The vote upon which his action is brought is as follows: "Voted to pay H. H. Clark two hundred dollars, ($200,) for damage done his horse in April last in District No. 8."

It is not claimed by the plaintiff that he gave to the municipal officers of the town any notice in writing of the injury to his horse, and of his claim for damages, as required by the statute; so that the claim against the town for damages was without any legal validity. Nothing had been done to render the town liable for damages. At the time when the vote was passed, it is not claimed here that the legal liability existed against the town. And the question presented is whether such a vote by a town, when no legal claim exists,—when no controversy exists between the plaintiff and the town as to the legal liability,—is binding upon the town so that an action may be maintained upon it.

When a real controversy exists between a man and a town in regard to the facts necessary to be shown to create a liability on the part of the town, or the law that may arise upon the facts, the town may bind itself by its vote to compromise the existing controversy upon any question within its corporate powers. But where no controversy exists between the town and an individual as to existing facts necessary to be shown, or upon the law involved, a town cannot by its vote bind itself by giving any particular sum to be raised by taxation upon its inhabitants, because it would be a mere gratuity, entirely outside of the power of the majority, and would have no binding force. So that the question involved here is whether there was a real controversy between the plaintiff and the town in regard to the facts necessary to be shown by the plaintiff to constitute a legal liability on the part of the town.

To create such legal liability for dam ages resulting to person or property by reason of a defect in a highway, one Of the essential facts necessary to be proved by the plaintiff is that he gave notice in writing...