Gilman v. Laconia

CourtSupreme Court of New Hampshire
Citation55 N.H. 130
PartiesGilman v. Laconia.
Decision Date11 March 1875

Highway---Duty of town to adjoining land-owner.

The owner of land adjoining a highway may maintain an action at common law against the town to recover damage caused to his land by the fault or negligence of the town in not building and maintaining the road in a reasonably suitable and proper manner

CASE by Hiram Gilman against the town of Laconia, for negligence in the performance of the duty of keeping a highway in repair. The alleged negligence was in allowing a highway to be out of repair by suffering a highway drain "to fill up with sand" and other materials, and thereby to become out of repair, and to be destroyed, so that the water which ought to have gone through the drain overflowed the plaintiff's land, covered it with sand, and damaged his cellar and buildings. The defendants demurred. The declaration may be referred to as part of the case.

Barnard for the plaintiff. Whipple, Jewell & Smith, for the defendants


I think this demurrer must be overruled. The injury to a land-owner, for which compensation is made by the award of damages upon the laying out of a highway, is such as, in the judgment of the selectment, county commissioners, or jury, as the case may be, will result to him from the construction and maintenance, in a suitable and proper manner, of a road upon the land taken for that purpose, and nothing more. Nor can there be any doubt but that the selectmen or other tribunal in estimating such damage, must go upon the ground that in building and maintaining the road reasonable care and skill will be exercised, and a just regard be had to the rights of the owner of adjoining land, as well as the owner of land over which the highway passes. It being certain, therefore that the land-owner receives no compensation in the original award of damages for injury which may be caused him by an improper or unsuitable construction and maintenance of the road, or by a construction and maintenance that have not a proper

regard for his rights, the question is whether he can maintain an action at common law against the town to recover such damage.

That he cannot recover against the highway surveyor or other public officer charged by law with the duty of building or repairing the road, provided such officer has acted in good faith and according to the best of his abilities, is well settled---Waldron v. Berry, 51 N.H. 136; and the statute only provides for an assessment of additional damages when, in repairing a highway by authority of the town, the grade is raised or lowered, or a ditch made at the side thereof. Gen. Stats., ch. 66, sec. 20. Unless, therefore, the common law furnishes a remedy against the town when either their act or omission in building or maintaining the road causes damage not covered by the original award, and not of a character contemplated by the statute above referred to, the land-owner is subjected to an injury which may amount to a taking of his land without compensation or redress.

It perhaps might not be difficult to show that this would bring the matter within the constitutional prohibition against the taking of private property for public uses without compensation. See Eaton v. B. C. & M. R. R., 51 N.H. 504. But without stopping to inquire how that may be, I think the rights of the land-owner in such case stand too firmly upon the plainest principles of the common law to require the aid of this provision of the constitution in their support.

The general duty of building and keeping in repair highways is imposed by statute upon towns,---Gen. Stats., chaps. 66, 68,---and as a necessary consequence of this duty they have some special rights, amounting to a qualified property, as explained in Troy v. Cheshire Railroad, 23 N.H. 83, and Hooksett v. Amoskeag Co., 44 N.H. 105, in the land over which they pass. Indeed, for all purposes of construction and repair, towns stand in a position which differs in no substantial respect from that of an owner of the fee; their control of the premises is so far absolute and exclusive. This, as it seems to me, obviously imposes upon them a duty towards the owner of adjoining land which, so far as regards the consequences of their acts and omissions in building and repairing, is not to be distinguished from the duty of an ordinary adjoining proprietor of land with respect to the premises of his neighbor. The purpose for which the land has been taken is to build and maintain upon it a road for the use and accommodation of the public. To build and maintain such road in a suitable and proper manner must of course always be held a reasonable use of the land, because this is the use to which it has been condemned; and no damage however great arising therefrom can give a cause of action, because all such damage must be presumed to have been included in the original award. But when it comes to the matter of an unsuitable and improper construction, or of a wanton or negligent disregard of the rights of the land-owner in maintaining the highway, I see no reason why the maxim sic utere, etc., should not apply. To hold otherwise would, as it seems to me, be not only gross injustice, but a palpable violation of legal principles that are quite fundamental and elementary.

I have not reached this conclusion without a careful examination of Ball v. Winchester, 32 N.H. 435. The main doctrine there laid down was, that a town is not liable for damage occasioned by the acts of a surveyor of highways, within the scope of his authority, except where such liability is imposed by statute, and he is not to be considered the agent of the town in making repairs upon highways within the town, so as to charge the town for damage occasioned by his illegal acts.

It is not necessary in the present case to inquire into the soundness of this proposition, although I must say I have never been able to comprehend the reasons upon which it rests. The burden of building and maintaining their highways is cast upon towns absolutely by the statute. In the performance of that duty they may elect surveyors if they choose, and as many as they think proper---Gen. Stats., ch. 66, sec. 5; or they may, if they prefer, authorize the selectmen to procure the work to be by contract. Ib., sec. 25. If they adopt the former course, as is doubtless the usual practice, the duties and powers of the officers they thus create are pointed out and defined by statute, the same as are the duties of the selectmen and other officers of the town. Why are not highway surveyors officers of the town? They are chosen by the town or appointed by the selectmen: the whole business of their office is to expend and apply the money and labor of the inhabitants of the town in and about the performance of a duty imposed in express and stringent terms upon the town, and no one else. How does the business of building and repairing a road become any less the business of the town because its oversight is placed in the hands of an officer appointed by the town, but whose duties and powers are prescribed by law? Did the legislature intend to make the town liable in any case for the act or omission of a public officer who is not the officer, agent, or servant of the town? If so, I can but regard the law as an anomaly of absurdity and injustice. The case of Hardy v. Keene, 52 N.H. 370, will illustrate what I mean. That case was tried before me at nisi prius, and I undertook to apply to the facts the doctrine of Ball v. Winchester. The derrick was erected by the highway surveyor in the forenoon. It fell, injuring the plaintiff, about four o'clock in the afternoon of the same day, by reason (as was claimed) of the negligence of the surveyor in securing its fastenings.

But, according to Ball v. Winchester, the surveyor was not the agent of the town, and the town was not liable for his act in thus rendering the highway insufficient and dangerous. The town, upon the authority of a series of well considered decisions in this state, could only be held liable in case the injury was caused by a defect which they ought to have discovered and remedied before the accident.

The court, by a decision in which I did not participate, but with which, upon this point, I fully agree, held that the surveyor was to be regarded as the agent of the town for the purpose of notice of the insufficiency of his own act in securing the derrick. The facts stated in the case show that upon no other ground could the town have been held liable,

as they afterwards were, for the insufficiency of the fastening, for the fastening was of such a character that it could only be known to those who did the work, and the fact was only proved by the disastrous event.

It is not easy to see upon what ground it can be held that the town is not liable for the negligence and illegal acts of the surveyor in the discharge of his legal duty, and at the same time, that notice to that officer of the character of those acts or omissions is notice to the town, sufficient to lay the foundation for a recovery against the town on the ground of fault in not remedying the defect resulting from such acts or omissions of the surveyor. The substance of the thing certainly seems to me too plain to be concealed, namely, that the town is held liable directly for the fault of the surveyor; and if that is so, it must be on the ground that the surveyor is the officer, agent, or servant of the town.

But, as already remarked, this question does not arise in the present case. There are, however, some observations of the learned judge who delivered the opinion of the court in Ball v. Winchester, with which my conclusions in the present case are not consistent. He says (p. 443) "Assuming that the town may be held...

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