Foss v. Maine Turnpike Authority

• Citation: 64 A.L.R.3d 1230,309 A.2d 339
• Parties: Russell L. FOSS et al. v. MAINE TURNPIKE AUTHORITY.
• Decision Date: 10 September 1973
• Court: Supreme Judicial Court of Maine (US)

Page 339

309 A.2d 339

64 A.L.R.3d 1230

Russell L. FOSS et al. v. MAINE TURNPIKE AUTHORITY.

Supreme Judicial Court of Maine.

Sept. 10, 1973.

Richardson, Hildreth, Tyler & Troubh, by Harrison L. Richardson, Horace A. Hildreth, Jr., Robert E. Noonan, Portland, for plaintiffs.

Preti & Flaherty, by John J. Flaherty, John Paul Erler, Portland, for defendant.

Before DuFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

POMEROY, Justice.

This case comes to us on appeal from the granting of a motion by the defendant to dismiss the complaint in the Superior Court of Cumberland County.

Plaintiffs, whose property abuts the Maine Turnpike in the Town of Gray, allege that the Turnpike Authority's snow removal operations have resulted in runoffs of salt onto their property over a considerable period of time, resulting in the pollution of plaintiffs' water supplies, defoliation of their crops, destruction of their plumbing and assorted other damage both to property and person. Additionally, plaintiffs contend that the salting was excessive, and that it was carried out by the Authority with knowledge of, and disregard for, its damaging effects on plaintiffs' property.

The Superior Court dismissed plaintiffs' count III, asking exemplary damages, on the ground that such damages could not be assessed against a municipal corporation or state agency, such as the Turnpike Authority, without statutory authorization. Subsequently, the Court dismissed plaintiffs' remaining counts, labeled 'count in nuisance,' 'count in negligence,' 'count in trespass,' and 'count for an injunction' on the theory that sovereign immunity precluded such suit against the Turnpike Authority.

We sustain the dismissal of Court III.

We reverse the dismissal of counts I, II, IV and V.

In dismissing plaintiffs' counts labeled 'negligence,' 'nuisance' and 'trespass,' and the count for an injunction, the Superior Court cited our decision in Nelson v. Maine Turnpike Authority, 157 Me. 174, 170 A.2d 687 (1961), noting that Nelson was 'nearly analogous in some respects to the case at bar.'

Nelson involved negligent highway maintenance which allegedly resulted in personal injury to a turnpike user. In upholding dismissal of the complaint in Nelson, we noted the controversy which surrounds the doctrine of sovereign immunity, but held that the Turnpike Authority was, in fact, a body 'performing a governmental function,' and as such was endowed with the same sovereign immunity protection which was enjoyed by municipal corporations and other governmental agencies in Maine.

Plaintiffs now ask us to overrule Nelson and to declare that the Turnpike Authority does not possess sovereign immunity. Alternatively plaintiffs ask us to hold that their cause is actionable under certain 'exceptions' to the sovereign immunity doctrine.

Since we agree with plaintiffs' alternative suggestion, we find no need to consider overruling Nelson at this time.

The doctrine of sovereign immunity is frequently assumed to preclude all liability in tort for governmental agencies. But this blanket expression of the doctrine goes far beyond its traditional application. Consequently, it is vital that the limitations of the doctrine be understood.

Among these limitations are those arising out of situations in which a municipality or governmental agency has either physicially invaded private property or has performed acts not authorized by law which have impaired the use and enjoyment of that property. Traditionally, such acts of invasion or impairment have been labeled as 'trespasses' or 'nuisances,' depending on the particular pleading purposes to be served.

With the abolition of common law pleading, the necessity of 'labeling' disappeared. The practice of labeling continued, however, with results that have frequently been more confusing than illuminating. Uncertainty over what constitutes a 'nuisance' or a 'trespass' or 'negligence' often blurred the basic question of whether the particular facts of a case were such as to authorize judicial relief, under whatever label one chose to append to the pleadings.

As Professor Prosser explains in his treatise on Torts:

'Another fertile source of confusion is the fact that nuisance is a field of tort liability rather than a type of tortious conduct. It has reference to the interests invaded, to the damage or harm inflicted, and not to any particular kind of act of omission which has led to the invasion. The attempt frequently made to distinguish between nuisance and negligence, for example, is based upon an entirely mistaken emphasis upon what the defendant has done rather than the result which has followed, and forgets completely the well established fact that negligence is merely one type of conduct which may give rise to a nuisance . . .. Today liability for nuisance may rest upon an intentional invasion of the plaintiff's interests, or a negligent one . . ..' Prosser-Law of Torts, 4th Edition, pp. 573-574 (1971).

In summary, our task in dealing with a case such as that now before us is not to test the sufficiency of the labels employed to describe the act complained of, but to determine, based upon the factual allegations, whether or not an interest of plaintiffs has been impaired or injured in such a way as to justify the granting of legal relief.

As we have noted above, the defense of sovereign immunity has not generally been held to cover situations of legally unauthorized physical invasion of property or of serious impairment of property use and enjoyment. In simplest terms, it may be said that a municipality has no more right to bring about such consequences than has a private citizen. District of Columbia v. Totten, 55 App.D.C. 312, 5 F.2d 374 (1925), cert. denied, 269 U.S. 562, 46 S.Ct. 21, 70 L.Ed. 412 (1925); Franklin Wharf Company v. City of Portland, 67 Me. 46 (1877); Cumberland and Oxford Canal Corp v. City of Portland, 62 Me. 504 (1871).

Municipal liability for such consequences is limited, however, by one important qualification; namely, that acts of a municipality or governmental agency which have been authorized in some manner by the Legislature are not actionable in the same manner as acts of private parties, so long as they are carried out in a reasonable and non-excessive fashion. In other words, it may be said that the Legislature has the power to authorize what otherwise would be traditionally categorizable as 'nuisances' and 'trespasses,' and that if the municipality thereafter carries out the acts in the manner contemplated by the legislative authorization, recovery such as would be possible against a private party would be barred.

In Transportation Company v. Chicago, 99 U.S. 635, 25 L.Ed. 336 (1878), the United States Supreme Court dealt with an allegation of 'trespass' and 'nuisance' brought by a transport company against the City of Chicago for obstruction of wharf facilities caused by the construction of a legislatively-authorized coffer dam. Finding the obstruction to be non-actionable as 'trespass' or 'nuisance,' the Court stated:

'A legislature may and often does authorize and direct acts to be done which are harmful to individuals, and which without the authority would be nuisances; but in such a case, if the statute be such as the legislature has power to pass, the acts are lawful, and are not nuisances, unless the power has been exceeded.' 99 U.S. at 640.

As indicated earlier, however, the doctrine that legislatively authorized acts cannot jbe treated as 'nuisances' or 'trespasses' is itself limited by the stipulation that such acts must not only be legislatively authorized but also performed in such a fashion as the Legislature would reasonably have anticipated.

In Tuell v. Marion, 110 Me. 460, 86 A. 980 (1913), for example, this Court dealt with a bridge, constructed by the Town of Marion, which obstructed a navigable stream. We noted that:

'Even when a town is authorized by the Legislature to erect a bridge across navigable waters, unless it is constructed as authorized by the act in a reasonable and proper manner, and it is an obstruction to navigation, the town is liable. The legislative authority . . . contemplates its being done in a reasonable manner, and . . . damages that result or a carelesss or unreasonable exercise of their power, are not treated as having been contemplated by the act conferring the authority.' 110 Me. at 463, 86 A. at 981.

Similarly, in Franklin Wharf Company v. City of Portland, 67 Me. 46 (1877), we dealt with a legislatively-authorized sewer project which had resulted in complete obstruction of plaintiffs' wharves. In Franklin we stated that:

'The purpose of the statute under which the city acted was not to authorize it to transfer a nuisance from the city to law water mark, or to create one there, but to enable it to conduct the rubbish and impurities . . . to a point in the sea where they would ordinarily be so distributed and dissipated as not to create a nuisance . . . it is a right to make deposits temporarity, and not a right to obstruct navigation permanently.' 67 Me. at 56-57.

In short, these cases indicate that it is not enough that an activity be authorized by the Legislature for full liability to be precluded, but rather that there is an additional requirement that the acts actually be carried out in a limited, reasonable manner, as anticipated in the initial legislative authorization.

Applying these rules to the instant case, the issues of nuisance and trespass become clear.

To the extent that the salting operation of the Turnpike Authority was not authorized, or was carried out in an unreasonable or excessive fashion, then the Authority is wholly stripped of the protection of the immunity doctrine, and the salt run-off is to be treated as any other invasion of property or interference with the use and enjoyment of such property.

Assuming arguendo that...