First Nat. Bank of Boston v. Maine Turnpike Authority

• Decision Date: 21 October 1957
• Citation: 153 Me. 131,136 A.2d 699
• Parties: The FIRST NATIONAL BANK OF BOSTON and National Bank of Commerce of Portland, In Equity, v. MAINE TURNPIKE AUTHORITY et al.
• Court: Maine Supreme Court

Page 699

136 A.2d 699

153 Me. 131

The FIRST NATIONAL BANK OF BOSTON and National Bank of Commerce of Portland, In Equity, v. MAINE TURNPIKE AUTHORITY et al.

Supreme Judicial Court of Maine.

Oct. 21, 1957.

Hutchinson, Pierce, Atwood & Allen, Portland, for plaintiff.

H. E. Foster, Winthrop, Frank Harding, Rockland, Verrill, Dana, Walker, Philbrick & Whitehouse, Portland, Joseph Gorham & Everett Maxcey, Locke, Campbell, Reid & Hebert, Augusta, Skelton & Taintor, Lewiston, Linnell, Perkins, Thompson, Hinckley, & Thaxter, Portland, Sanborn & Sanborn, Augusta, George D. Varney, Portsmouth, N. H., Warren Paine, Portland, Roger A. Putnam, James G. Frost, Augusta, Bingham, Dana & Gould, Boston, Mass., for defendant.

Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, TAPLEY, SULLIVAN and DUBORD, JJ.

SULLIVAN, Justice.

The Maine Turnpike Authority extended its toll road from Portland to Augusta and thus obliged the defendant utilities to relocate or replace some of their pipes, wire lines and other facilities which had been installed in many portions of extant public ways traversed en route. The Authority has negated all liability for payment of the expense and losses entailed in such transposition or abandonment and the utilities have submitted to the cost under steadfast protest. The resultant outlay and deprivations have been of serious financial magnitude for the utilities.

Pursuant to the Uniform Declaratory Judgment Act, R.S. c. 107, §§ 38 through 50, and on behalf of the bondholders, the plaintiff banks as trustees under the indenture of trust of the Authority have instituted this bill in equity against the Authority, the utilities and the Attorney General to have resolved the controversy as to who must sustain the expense of relocation and the cost of replacement. By agreement amongst all parties the issue is restricted to liability without fixation of the amount of any damages.

Before construction of the turnpike extension the legislature had accorded to the utilities by charter, statute or statutory validation, and without charge, the permit to maintain in the public ways their facilities and the utilities had made the installations. The purport of such legislative privilege is of prime concern in this case and is discovered by court precedents and statutes.

A review of the decided cases of this court is informative.

In Rockland Water Company v. City of Rockland, 1891, 83 Me. 267, 22 A. 166, it was decided that a right by charter to lay pipes in city streets 'in such manner as not to obstruct or impede travel thereon' does not afford a right of action against the city which in repairing a street uncovers one of the submerged pipes and exposes it to frost, 'in the absence of any improper method in so doing.'

Inhabitants of Paris v. Norway Water Company, 1893, 85 Me. 330, 27 A. 143, 145, 21 L.R.A. 525, concerns itself primarily with the cataloguing of utility facilities for taxation purposes. At pages 332, and 144 respectively. The decision says, in part:

'* * * Such companies, therefore, by the public license accorded them, take no title in the land. * * *'

'* * * water mains, pipes, etc., may be considered real estate, and taxable, where they are located * * *'. 85 Me. 334, 335, 27 A. 145.

This case of Inhabitants of Paris v. Norway Water Company holding that water pipes, hydrants and conduits of a water company, laid in public streets are real estate for the purposes of taxation in the instance of a private corporation chartered by special act of the legislature (P. & S. 1885, c. 369; 1887, c. 46) to lay its installations in public ways 'under such reasonable restrictions as may be imposed by the selectmen of said town,' has been excessively interpreted and enlarged in the quest to justify an implication that such a chartered utility is not subject to relocation of its facilities installed in public streets or ways without compensation. Language used in Readfield Telephone and Telegraph Company v. Cyr, 95 Me. 287 at page 293, 49 A. 1047, and in City of Portland v. New England Telephone and Telegraph Company, 103 Me. 240 at page 246, 68 A. 1040, in attempts to distinguish those opinions from that of Inhabitants of Paris v. Norway Water Company has been the occasion of misapprehension as to the primacy and permanence of the police power.

Belfast Water Company v. City of Belfast, 1898, 92 Me. 52, 42 A. 235, arose from a contract between the utility and the city, permitting the utility to lay its pipes in the city street. The utility laid its pipes. The city in altering its sidewalk required the utility to relocate its pipes. The utility brought the action to recover from the city the expense of such relocation and was denied relief. The court said:

At pages 58 and 237, respectively. '* * * When the company placed its gates in the street of the city under the contract referred to, it did so subject to the right of the city to make such changes in the surface of the street and the alignment of the sidewalk as might be necessary to render the street safe and convenient for public travel. In making needed repairs and changes in the streets, the city is but an instrument of the state, an agent of the public, and it cannot barter away its rights or fetter its duty to make such repairs and changes. To subject itself to the expense of changing the applicances of the water company in the streets whenever it became necessary to change them, by reason of repairs, would be a serious impairment of its rights, and an onerous addition to its duties.' (emphasis supplied)

Brunswick Gas Light Company v. Brunswick Village Corporation, 1899, 92 Me. 493, 43 A. 104, was an action by a utility which by charter had 'the right to lay gas pipes in any of the public streets and highways of the town of Brunswick, the consent of the selectmen of said town having first therefor been obtained.' The utility claimed 'that its pipes, lawfully in the Brunswick streets, were broken by the defendant in the course of the construction of sewers in said Streets.' The court opinion contains the following tenets:

At pages 497 and 105, respectively. '* * * This is the whole of it. It is not claimed that the acts of the defendant were negligent, unreasonable, unnecessary, or in excess of its statutory rights; and, of course, we cannot assume them to have been so. The question is squarely presented whether the defendant, having constructed its sewers in a reasonable and proper manner, can be held responsible for damages which were the natural or necessary result of the exercise of its lawful powers. We think the question must be answered in the negative.'

At pages 496 and 105, respectively. '* * * But this was not an absolute right. It was only a qualified right. It was not paramount, but subordinate. The placing of its pipes in the streets, with the consent of the selectmen, did not give the plaintiff the vested right to have them remain as placed, undisturbed. Its right was subordinate to the rights of the public in the use of the streets; and it was subject to the power of the legislature to authorize additional public uses of the streets, and that, without providing for the payment of compensation for incidental and consequential damages occasioned by such uses. Notwithstanding the provisions in the plaintiff's charter, we think it cannot be successfully claimed that the legislature did not still possess the power to authorize the construction of sewers in the streets, although by such construction the plaintiff might be put to inconvenience, damage, and loss.' (emphasis supplied)

At pages 497 and 105, respectively. '* * * The legislature exercised its power by granting the defendant's charter. The defendant, then, clearly had the right to construct sewers in its streets. If it did so reasonably and properly, it was only in the lawful exercise of its right. It is well settled that when a public corporation does only what by its charter it is authorized to do, and is free from fault or negligence, it is not liable for consequential damages * * * We think this rule is applicable here.'

In Readfield Telephone and Telegraph Company v. Cyr, 1901, 95 Me. 287, 290, 49 A. 1047, 1048, a case concerning a permit by general statute to a class of utilities, is found:

'The beneficial use of the soil in our highways had been appropriated by the public for public purposes, but the property in the soil still remains in the owner of the adjoining land, who may use it for any purpose, above or below the surface, which does not injuriously interfere with public uses. A telephone is a public use, and the legislature, by virtue of its power of control over the public roads and highways of the state, may grant to a telephone company the authority to erect its lines along or upon such roads and highways, or it may delegate that power to the municipal officers of the several municipalities, as has been done in this state by St. of 1885, c. 378. A telephone company, however, cannot construct its line along the highway at its own pleasure. It is forbidden to do so without first obtaining a written permit from the municipal officers. * * * Nor is this permission, when once obtained, final and irrevocable, and the use so granted subject to be determined only by the will of the company or the discontinuance of the highway. The same section further provides that 'after the erection of the lines, having first given such company, persons, associations, or their agents, opportunity to be heard, the municipal officers may direct any alteration in the location or erection of said posts.' These are comprehensive terms. Telephone lines, though affected with a public use, are operated for private gain. Nothing is paid for the valuable privilege of occupying and using the soil of the public roads and highways. The authority to fix the location of the posts, in the first instance, has been wisely given to the municipal officers, and, if wisely exercised, the...