Evans v. City of Portland

• Decision Date: 08 May 1903
• Citation: 54 A. 1107,97 Me. 509
• Parties: EVANS v. CITY OF PORTLAND.
• Court: Maine Supreme Court

54 A. 1107

97 Me. 509

EVANS

v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

May 8, 1903.

(Official.)

Report from Supreme Judicial Court, Cumberland County.

Action by Nellie S. Evans against the city of Portland under Rev. St. c. 16, § 9, to recover damages for failure to maintain and keep in repair a public drain, with which the plaintiff alleged she had the right to connect her premises. Case reported. Judgment for defendant.

Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

D. A. Meaher, for plaintiff.

C. A. Strout, City Sol., for defendant.

POWERS, J. This is an action to recover damages resulting from the failure of the defendant city to maintain and keep in repair a public drain or sewer along Fore street, with which the plaintiff alleges she had a right to connect the premises owned by her on the northwesterly side of said street.

The right of action is given only to those who have a right to connect with the sewer. Rev. St. c. 10, § 9. The plaintiff, among other things, must prove that she, or her predecessor in title, made written application to the municipal officers to enter and connect with this sewer, and that the municipal officers gave the applicant a written permit so to do. Estes v. China, 56 Me. 407. She relies upon a permit from the city of Portland to James R. Dockray, dated March 17, 1857, "to enter a side drain from a lot of land belonging to him, situate on the northwest side of Fore street, between the land of F. Lewis on the southwest and land formerly belonging to Judah Chandler on the northeast, into the drain owned by the city extending along Hancock street to tide waters." This permit was granted under Pub. Laws 1854, p. 90, c. 77, which, so far as this case is concerned, is the same in substance as Rev. St. c. 16. By section 2 of said act, "all applications for permits shall be in writing, and shall distinctly describe the land to which they apply. The privilege granted by such permit shall be available to the owner of the land described, his heirs and assigns, and shall run with the land." See Rev. St. c. 16, § 4. Application in writing distinctly describing the land is an essential prerequisite of the power of the municipal officers to grant the permit. The object of such a provision is manifest—to preserve a definite description of the land to which the permit applies, and the wisdom of it is well illustrated in the present case. This court, in Estes v. China, above, held that the plaintiff must prove such written...