Gross v. City of Portsmouth

• Decision Date: 26 July 1895
• Citation: 33 A. 256,68 N.H. 266
• Parties: GROSS v. CITY OF PORTSMOUTH et al.
• Court: New Hampshire Supreme Court

33 A. 256

68 N.H. 266

GROSS

v. CITY OF PORTSMOUTH et al.

Supreme Court of New Hampshire. Rockingham.

July 26, 1895.

Action by Fanny A. Gross against the city of Portsmouth and others for personal injuries. On demurrer to the declaration. Sustained.

Plaintiff's declaration alleges that the defendants, a municipal corporation, are the owners of a system of waterworks, and, by pipes laid in the ground, conduct water to the dwellings of residents in the city, for which they receive compensation; that, in laying the pipes in 1894 on Market street, their servants so carelessly and negligently filled the trenches in which the pipes were laid as to form a ridge in the street, making the highway defective and dangerous; and that the plaintiff while driving on the street, by reason of the ridge, was thrown from her carriage, and injured.

S. W. Emery, for plaintiff.

T. E. O. Marvin, E. L. Guptill, and Calvin Page, for defendants.

CARPENTER, J. Unless the defendants are liable at common law, the demurrer must be sustained. Laws 1893, c. 59. Judicial notice may be taken of the act (Laws 1891, c. 209) authorizing the defendants "to issue water bonds, and to manage and control its water supply." Hall v. Brown, 58 N. H. 93, 95, 96. By its provisions, the "immediate management and direction of the waterworks" are vested in a board of water commissioners, consisting of four persons, of whom the mayor for the time being is ex officio one. The three other members of the board—one of them to hold the office three years, one four years, and the other five years, from February 1, 1891—are named in the act. In January, 1894, and each year thereafter, the mayor and aldermen are required to appoint a member of the board to hold the office three years from the 1st day of the following February. They may "appoint a superintendent of the works, and such other agents and servants as they may deem necessary, and may fix their compensation. They may make such rules and regulations for their own government, and in relation to all officers and agents appointed by them, as they may deem proper. They shall have the control and management of the construction and enlargement of said works, and may make all such contracts and agreements for and on behalf of the city in relation thereto as they may deem proper and advisable, and shall have full charge and control over the said works when enlarged and constructed. They shall establish rates and tolls and prescribe rules and regulations for the use of water, and may sell and dispose of such articles of personal property connected with said works as they shall deem expedient, and may purchase such property as may be in their judgment necessary for said works and the purposes contemplated by this act." Laws 1891, c. 209, §§ 4-6, 8. The water commissioners are not the city's agents, but an independent board. The...