Goddard v. Inhabitants of Harpswell

• Decision Date: 31 May 1892
• Parties: GODDARD v. INHABITANTS OF HARPSWELL.
• Court: Maine Supreme Court

24 A. 958

84 Me. 499

GODDARD

v. INHABITANTS OF HARPSWELL.

Supreme Judicial Court of Maine.

May 31, 1892.

(Official.)

Appeal from supreme Judicial court, Sagadahoc county.

Action of trover by Robert Goddard against the inhabitants of the town of Harpswell. Plaintiff obtained a verdict for $252. On motion for a new trial and on exceptions. New trial granted.

C. W. Larrabee, for plaintiff.

Weston Thompson, for defendants.

EMERY, J. The county commissioners of Cumberland county, upon an appeal from the refusal of the selectmen, laid out a town road in Harpswell. This action of the commissioners was, upon appeal, affirmed by this court, and the certificate of affirmance sent down May 81, 1886. Within the limits of the road thus located, the plaintiff had, prior to the location, placed some amount of stone, timber, and earth, with the consent of the owners of the land, for the purpose of constructing a road and bridge along the same line afterwards located by the commissioners.

After the location and establishment of the road by the commissioners, as affirmed by this court, the road and the necessary bridge therein were constructed, and the stone, timber, and earth of the plaintiff, found within the limits of the location, were used in such construction. The plaintiff, assuming that this taking and using of his material were by the direction of the town, or by its authorized agents, brought this action of trover against the town for such conversion. He recovered a verdict, which the town has moved the court to set aside as against law and evidence.

There is no evidence in the case that the town ever voted to open or build the road or bridge, or appropriated any money or appointed any agents for that purpose, or gave any instructions to any officers, or in any way ever even considered the question. Nor is there any evidence that the municipal officers ever in any way took any direction or cognizance of the matter. Counsel and witnesses spoke incidentally of the road and bridge having been built by the town, and now the plaintiff asks us to assume that the town built the road and bridge, inasmuch as it was the town's duty to do so, and we may assume that it did its duty. He means for us to assume that the town directly by vote assumed charge, appointed agents, and gave directions in the matter.

But, in the absence of any evidence showing any action of the town or its municipal officers in the premises, we cannot assume anything more than that the road and bridge were built by the usual public officer (in this case the highway surveyor of the district) in accordance with the directions of the statute and the commissioners. This assumption gives full effect to any presumption of duty done, and, indeed, such acts of public officers are commonly spoken of as acts of the town, though not technically or legally so.

Giving the plaintiff the full benefit of this assumption, is the town proven guilty of the unlawful conversion of his material?

It is settled law that when a public officer, in the line of his duty, does a public work within a town, for the public benefit or use, the town, in the absence of any directions to him, is not liable for his misconduct in such work, even though it appointed him, and is obliged to pay the cost of the work. Small v. Danville, 51 Me. 359; Mitchell v. Rockland, 52 Me. 118; Cobb v. Portland, 55 Me. 381; Woodcock v. Calais, 66 Me. 234; Farrington v. Anson, 77 Me. 406; Bulger v. Eden, 82 Me. 352, 19 Atl. Rep. 829,

A highway surveyor is a public officer, charged with a public duty "to open and keep in repair" public ways legally established within his district. He is appointed and paid by the town, and the town supplies him with the necessary funds for the performance of his duty. But the town does all this as a public duty, not for its own peculiar gain. It has no proprietorship in the roads and bridges built and maintained by taxes upon its inhabitants. The roads and bridges belong to the public.

In appointing highway surveyors, in raising and expending money...