Gilman v. City of Concord

• Decision Date: 07 December 1937
• Citation: 195 A. 672
• Parties: GILMAN v. CITY OF CONCORD.
• Court: New Hampshire Supreme Court

195 A. 672

GILMAN

v. CITY OF CONCORD.

Supreme Court of New Hampshire. Merrimack.

Dec. 7, 1937.

Transferred from Superior Court, Merrimack County; Johnston, Judge.

Action by Sarah J. Gilman against the City of Concord. Question transferred without ruling.

Case discharged.

Action, for poisoning the plaintiff's hens. The declaration contains a count charging negligence and another charging unreasonable use of a highway running along her land. The court (Johnston, J.) has transferred without ruling the question whether the city may be liable if while engaged on the highway in the destruction of certain insect pests and in preserving trees its agents and servants used a poison spray in such a manner that it was deposited on the plaintiff's land with resulting damage to her poultry.

Willoughby A. Colby, of Concord, for plaintiff. Henry P. Callahan, City Sol., of Concord, for defendant.

ALLEN, Chief Justice.

The inquiry relates to a municipality's liability for the wrongful conduct of its agents and servants in carrying out its undertakings. The city was engaged in the performance of a public, governmental function. By the statute then in force (P.L. c. 190, § 1), gypsy and browntail moths, and their eggs, caterpillars, pupae and nests were declared to be public nuisances. Within certain areas, inclusive of highway locations, municipalities were required to destroy the nuisance as an imposed duty. Id., section 3. By another statute (P.L. c. 42, § 4, subd. XXV), a town, and hence a city (P.L. c. 54, § 1), may vote money "to limit the ravages of and if possible to exterminate the brown tail moth and other insect pests." That the abatement of the nuisance is of general public concern and more than of local interest, where the nuisance is found, is not doubtful. It is not confined to local advantage, and the statutory declaration of the character of the nuisance' as public confirms this view of the state-wide benefit purposed by the legislation.

It does not clearly appear under which of the two statutes referred to the city was acting. But it is not deemed to be important, in passing upon the presented inquiry. In Rhobidas v. Concord, 70 N.H. 90, 111, 47 A. 82, 84, 51 L.R.A. 381, 85 Am.St.Rep. 604, the court undertook to classify the situations under which municipal liability for torts does or does not exist, and liability is said to seem to be recognized in cases "where duties of a public nature are voluntarily assumed." The case of Rowe v. Portsmouth, 56 N.H. 291, 22 Am. Rep. 464, cited to support this special classification, on analysis does not appear to do so. The defendant's grant of a special power or authority by the Legislature was regarded as the reason for the duty of care in the exercise of the grant. The distinction was made "between the liability of towns and cities for neglect to perform [sic, negligence in performing] public duties out of the powers which they exercise under the general law, and their liability when the duty arises from the grant of some special power conferred on the particular town or city." Id., 56 N.H. 291, 293, 294, 22 Am.Rep. 464. The case of Eastman v. Meredith, 36 N.H. 284, 297, 72 Am.Dec. 302, was held not to be parallel because there the duty was "at most a public or political duty," with the corresponding right of the citizen that it be properly performed; "a public or political right." There was thus the underlying thought that the undertaking was for a local purpose engaged in by the defendant in its corporate capacity and not as a state agency.

Whether a municipality must or whether it may exercise a public function as a branch of the state government would seem undeterminative of liability. The discussion in Gates v. Milan, 76 N.H. 135, 138, 139, 80 A. 39, 35 L.R.A.(N.S.) 599, develops the present state of the law on the point in well-reasoned exposition. It may accordingly be declared that it is now an established principle that in a voluntary performance of a public, governmental undertaking a municipality incurs no liability unless it would also be liable if the performance were an imposed duty. Where a municipality exercises discretionary authority vested in it by the state to perform a governmental function, the function is no less of general and state-wide interest than if its performance by the municipality were ordered by the state.

In general, by the common law a municipality is not liable for its conduct in executing a governmental undertaking if the plaintiff's right is a public one arising out of the undertaking. Eastman v. Meredith, supra; Rowe v. Portsmouth, supra, 56 N.H. 291, 297, 22 Am.Rep. 464; Rhobidas v. Concord, supra, 70 N.H. 90, 110, 47 A. 82, 51 L.R.A. 381, 85 Am.St.Rep. 604; Piasecny v. Manchester, 82 N.H. 458, 136 A. 357, and cases cited. Nor is it liable when the work is done by persons not under its control and direction. Edgerly v. Concord, 59 N.H. 78; Wakefield v. Newport, 62 N.H. 624; Doolittle v. Walpole, 67 N.H. 554, 38 A. 19; Wheeler v. Gilsum, 73 N.H. 429, 62 A. 597, 3 L.R.A.(N.S.) 135; Rhobidas v. Concord, supra, 70 N.H. 90, 109, 47 A. 82, 51 L.R.A. 381, 85 Am.St.Rep. 604.

But the situation here is that the plaintiff claims under her private right as a landowner. Whether, also, the inquiry relates to an undertaking in which the work was done by the city's agents and servants, presumably its highway department, would require consideration if it were material. While under the assumed facts the city's agents and servants did the work, yet in view of the public character of the undertaking its control and direction in the performance of the work is doubtful. Cases of exemption from municipal liability like Edgerly v. Concord, supra, relating to a city fireman's negligence, Doolittle v. Walpole, supra, relating to the care of a town lockup, and Wakefield v. Newport, supra, relating to highway maintenance, would seem to be authority to show that the city here directed that the work be done if it voluntarily undertook it, but without right to say how it should be done, and that in any event the city had nothing to do with the manner of performing the work if it was done as a legislative requirement.

Whatever the city's actual participation in the work may have been, for negligence in highway construction and maintenance within their borders municipalities are liable for resulting damage to neighboring property. They are "liable for negligent invasion of an adjoining owner's property rights by their use of land which they hold only for public, governmental purposes, as the soil of highways." O'Brien v. Rockingham County, 80 N.H. 522, 526, 120 A. 254, 257. As there and elsewhere stated, this rule is too strongly established to be questioned.

Such an invasion appears to be here claimed. While the city's undertaking was to abate a nuisance common to all property it might affect, it was also, if incidentally, a highway project for the preservation of trees growing within the highway limits. If prevention of the spread of the nuisance was the main objective, yet its suppression within the local area is to be held a form of highway maintenance. The work being done, partly at least, for a proper highway purpose and within the highway limits, the city was in the exercise of its possessory rights in such use of the highway. It follows that under the assumed facts the city may be liable on...