Gilpatrick v. City of Biddeford

• Decision Date: 17 August 1894
• Citation: 30 A. 99,86 Me. 534
• Parties: GILPATRICK v. CITY OF BIDDEFORD.
• Court: Maine Supreme Court

30 A. 99

86 Me. 534

GILPATRICK

v. CITY OF BIDDEFORD.

Supreme Judicial Court of Maine.

Aug. 17, 1894.

(Official.)

Report from supreme judicial court, York county.

Action of trespass by Margaret J. Gilpatrick against the city of Biddeford for breaking and entering plaintiff's close, and building a sewer. Heard on report Judgment of nonsuit.

B. F. Hamilton and B. F. Cleaves, for plaintiff.

Chas. T. Read, City Sol, and N. B. Walker, for defendant.

WHITEHOUSE, J. This is an action of trespass against the city of Biddeford for damages resulting from acts alleged to have been performed by the city in the process of constructing a sewer across the plaintiff's field. The case has been before the court on a demurrer to the declaration, which was overruled, and now comes up on report.

It is uncontroverted that in 1887 the sewer in question, known as "Fall Street Sewer," was built by the street commissioner across the plaintiff's field, for the public use and benefit, and that the city of Biddeford paid for the construction of it The subject-matter appears to have received the attention of both branches of the city council of Biddeford, and to have been referred to the committee on streets, sewers, etc.; for we find from the records in the case that the mayor and aldermen and common council concurred in accepting a report of their committee, recommending, among other things, "a sewer to drain the vicinity of Fall street,"' and also in passing an order authorizing the city treasurer to negotiate a loan of $10,000, "to be expended for the completion of Fall and Pool street sewer and the extension of Alfred street sewer." No other action respecting the construction of this drain appears to have been taken by the city council.

But the plaintiff claims that the ordinances of the city make the street commissioner its agent for the construction of sewers, and render the city liable for his acts performed within the scope of that agency.

Section 2 of chapter 9 of the city ordinances provides that "it shall be the duty of each commissioner of streets to superintend the general state of the streets, * * * and give notice to the mayor or city marshal of any obstructions therein, and to superintend the building and repair of any drain, sewer, or reservoir in his district and make contracts for labor and materials for the same." Section 5 provides that "all commissioners of roads and streets shall act and be under the special instruction and supervision of the committee on roads, streets, sewers and drains, subject, nevertheless, to the approval of the city council."

It does not appear, however, that in the prosecution of this work the street commissioner acted under the "instruction or supervision of the committee on streets and sewers." On the contrary, it does appear from the uncontradicted testimony of the street commissioner himself that he "was acting under orders from the mayor and street commissioners."

Section 2 of chapter 16 of the Revised Statutes provides that "the municipal officers of a town may at the expense of the town, construct public drains or sewers along or across any public way therein, and through any lands of persons or corporations, when they deem it necessary for public convenience or health; and they shall be under their control." Section 3 provides that, "before the land is so taken, notice shall be given and damages assessed and paid therefor as is provided for the location of town ways."

It is not claimed in this case that there was strict compliance with the statute in regard to notice and the assessment of damages; but it is alleged in the defendant's brief statement that the sewer was laid over the plaintiff's land by virtue of an agreement with and under a license from the plaintiff. Of this, however, the report discloses no evidence; and the defendant's contention now is that the street commissioner was not acting as agent of the city, nor under its direction; and whether he was acting as a public officer, under the supervision of the mayor and aldermen, or without any legal authority from any source, he did not in any event, render the city liable, whatever personal liability he may have incurred.

The diversified powers and varied duties of municipal corporations in their relation to the citizen and the property owner, as well as the circumstances and conditions under which officials chosen by them are deemed to act as corporate agents of the municipality, on the one hand, or, on the other, as public officers, engaged in the discharge of duties imposed...