Inhabitants of Milford v. Bangor Ry. & Electric Co.

• Decision Date: 11 June 1908
• Citation: 71 A. 759,104 Me. 233
• Parties: INHABITANTS OF MILFORD v. BANGOR RY. & ELECTRIC CO.
• Court: Maine Supreme Court

71 A. 759

104 Me. 233

INHABITANTS OF MILFORD

v. BANGOR RY. & ELECTRIC CO.

Supreme Judicial Court of Maine.

June 11, 1908.

(Official.)

Report from Supreme Judicial Court, Penobscot County.

Action on the case by the Inhabitants of the Town of Milford against the Bangor Railway & Electric Company. Defendant filed a demurrer to the declaration, and the cause was then, by agreement of the parties, reported to the law court for determination. Demurrer overruled; defendant to plead anew.

Action on the case, brought by the inhabitants of the town of Milford against the defendant corporation to recover the value of the town hall and certain sidewalks and hose, which were the property of the municipality, and were destroyed by fire in April, 1905. It was alleged that this loss was caused by the negligence of the defendant corporation in failing to perform its contract to supply through its pipes water of sufficient current, pressure, and volume to extinguish fires within the range of its hydrants.

The two counts especially relied upon by the plaintiff town were the second count in the original declaration and an "amended count," both of which appear in the opinion.

The defendant corporation filed a general demurrer to the declaration, with joinder by plaintiff town, and then by agreement the cause was reported to the law court for determination, with the stipulations that the case should "be heard by the law court on declaration as amended, demurrer, and joinder. If the demurrer is overruled, defendant shall have the right to plead anew; if sustained, the plaintiff shall be nonsuited."

Argued before WHTTEHOUSE, SAVAGE, PEABODY, SPEAR, CORNISH, and KING, JJ.

Louis C. Stearns and Taber D. Bailey, for plaintiff.

E. C. Ryder, for defendant.

WHITEHOUSE, J. This is an action on the case, brought by the inhabitants of the town of Milford against the defendant corporation to recover the value of the town hall and certain sidewalks and hose, which were the property of the municipality, and were destroyed by fire in April, 1905. It is alleged that this loss was caused by the negligence of the defendant in failing to perform its contract to supply through its pipes water of sufficient current, pressure, and volume to extinguish fires within the range of its hydrants.

A general demurrer to the declaration was filed by the defendant, and it was stipulated by the parties that the cause should be heard by the law court on the amended declaration, demurrer, and joinder; that if the demurrer was overruled, the defendant should have the right to plead anew, and if sustained, the plaintiff should be nonsuited.

The two counts especially relied upon by the plaintiffs are the second count in the original declaration and the "amended count." The second count is as follows:

"Also for that there was on the 23d day of July, A. D. 1891, a corporation called the Penobscot Water & Power Company, organized under the laws of Maine, among other things, for the purpose of supplying towns and communities with water for domestic use and the extinguishment of fires, and said corporation then and there entered into a contract with the plaintiffs, whereby for the sum of $800 per year it agreed, among other things, to supply the plaintiff with 16 post hydrants, and water for the same, before the 1st day of August, 1892. It also agreed that said hydrants would have two nozzles, and should be supplied with pipes at least four inches in diameter, and that said hydrants should be so placed that proper protection against fire should be secured. It was also agreed that the waterworks to be established under the contract should be supplied by a pump, or pumps, of a capacity of not less than 1,000,000 gallons per day, and the plaintiffs say that said hydrants were erected according to contract, and that they ever paid the sum of $800 per annum to the said Penobscot Water & Power Company; and the plaintiffs say that said Penobscot Water & Power Company assigned said contract, by its deed in writing, with all its property and franchises, to a corporation called Public Works Company, organized under the laws of Maine, and having its principal place of business in Bangor in said comity, whereupon the Public Works Company maintained said hydrants and supplied them with water, and the plaintiffs paid them by and after the same rate of $800 per year for the use of the same until the 7th day of April, 1905. On said 7th day of April the Public Works Company, by its deed in writing duly executed, assigned and delivered to a corporation called Bangor Railway & Electric Company, the defendant, all its property and franchises, including said contract, whereupon the said Bangor Railway & Electric Company undertook to maintain said mains and hydrants and assume control thereof, and to supply the same with water, and the plaintiffs say that they paid the said company up to and beyond the 28th day of April, 1905, for the use of said hydrants by and after the rate of $800 per year, in accordance with the terms of their contract with the Penobscot Water & Power Company, and now the plaintiffs say that by reason of the premises and the matters hereinbefore stated the defendant was bound and obliged and owed the duty to maintain said hydrants with a supply of water therein for the extinguishment of fires in the town of Milford, and particularly for the extinguishment of fires communicated to the property of the inhabitants of said town as a corporation; and the plaintiffs further say that on said 28th day of April they were the owners of a certain public building called a town hall, of the value of $5,000, and of a certain large number of planks constituting a sidewalk, of the value of $250, and a hose pipe of the value of $250. Now on said 28th day of April the defendant did not fulfill its duty and obligation to furnish water in said hydrants; but, on the contrary, wrongfully and negligently failed to supply said hydrants with water capable of use for the extinguishment of fires, and left the same empty and useless, and on said 28th day of April said building of the plaintiffs took fire, and although the defendant's hydrants were in easy reach of said building, they supplied no water, and albeit the plaintiffs used their utmost endeavor to extinguish said fire, they failed because of the lack of water, and pressure of water, in said hydrants, and the building and the sidewalk and the hose aforesaid were utterly consumed, all which results were entirely due to the wrongful conduct of the defendant in not supplying water in said hydrants according to its obligation and duty."

The "amended count" is as follows:

"In a plea of the case, for that on the 28th day of April, A. D. 1905, the said inhabitants of Milford were the owners of a certain public building called a town hall, of the value of $5,000, and certain planks and timbers, constituting a sidewalk of the value of $250, and certain fire hose of the value of $250; and the plaintiffs aver that on said 28th day of April, 1905, the defendant had engaged and was bound and obliged to furnish through its mains, conduits, pipes, and hydrants, the same being laid and placed in the streets of said plaintiffs' town, water of sufficient current pressure, and volume to extinguish fire within range of said hydrants, and especially and particularly fires originating in, or communicated to, plaintiffs' said building and property, in consideration of the sum of $800 per annum paid to it by said plaintiffs. Now the plaintiffs say that on said 28th day of April a fire started in a board pile at a considerable distance, to wit, a quarter of a mile, from plaintiffs' said buildings and property, which said fire might easily have been extinguished and put out had there been any pressure and volume of water in said mains and hydrants, but the defendant, unmindful of the duty and obligations in this behalf, wrongfully, carelessly, and negligently suffered and allowed said mains, pipes, and hydrants to be destitute of any current of water of sufficient pressure, force, and volume to be of any value or utility in extinguishing said fire, or any fire, so that the plaintiffs were unable, by the use of the greatest diligence and the strongest efforts, to quench the fire in said pile of boards, although they were in the use of due care in this behalf; and the plaintiffs aver that said fire in said board pile was communicated to the said buildings and property of plaintiffs by sparks, firebrands, or cinders, so that the same were utterly burned and consumed, although hydrants were at hand and in close proximity to said buildings and property, and competent and capable men were at hand with suitable hose and appliances ready to extinguish the fires started by said cinders and firebrands upon plaintiffs' said building and property, and were prevented from doing so solely by the lack and want of water in said hydrants, which it was the duty and obligation of said defendant to furnish; and the plaintiffs aver that the sole cause of the said loss and damage was the wrongful neglect of duty of said defendant, to the damage of said plaintiffs (as they say) the sum of $6,000."

In support of the demurrer the following statement of the defendant's claims was presented as the basis of the argument in its behalf, viz.:

"(1) The company does not agree to extinguish fires, or to insure property against loss by fire. Its agreement is simply to furnish a water system and supply it with water. It is impossible to say that failure to furnish water was the proximate cause of the loss, and consequently no action can be maintained to recover for the loss of property by fire. The cause of the loss is too remote, and the damages too uncertain, to allow of a recovery.

"(2) Damages must be such as were in contemplation at the time the contract was made. It cannot be claimed that it was the intention of the company to make good loss by fire for the small...