Keeley v. City of Portland

• Decision Date: 19 June 1905
• Citation: 61 A. 180,100 Me. 260
• Parties: KEELEY v. CITY OF PORTLAND.
• Court: Maine Supreme Court

61 A. 180

100 Me. 260

KEELEY

v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

June 19, 1905.

Report from Superior Court, Cumberland County, at Law.

Action by George Keeley against the city of Portland. Action on the case to recover damages caused by the alleged negligent construction and maintenance of a sewer by the defendant, whereby water and sewage flowed back into the plaintiff's cellar. After the evidence had been taken out, it was agreed that the case should be reported, and that, "upon so much of the foregoing evidence as is competent and legally admissible, the law court is to render such judgment as the legal rights of the parties may require. If the law court holds the city to be liable, the case is to come back to this court [superior] for the assessment of damages." Judgment for defendant.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, and SPEAR, JJ.

George M. Seiders and Frank D. Marshall, for plaintiff. Scott Wilson, City Sol., for defendant.

WISWELL, C. J. This case comes to the law court from the superior court of Cumberland county, upon a report of the evidence, for this court to determine whether or not the action is maintainable. The plaintiff is the owner of property upon India street, in the city of Portland, which is connected with a public sewer in that street, and asks to recover of the city damages for injuries sustained by him caused by the flowing back of water and sewage from this sewer into the cellar of his premises.

The evidence shows that upon numerous occasions, especially during and after heavy rainstorms, the water and sewage in the sewer flowed back into the plaintiff's cellar, and caused him more or less injury. But the case does not disclose that there has been any failure upon the part of the city to properly maintain and keep in repair this India street sewer, or the sewer into which it emptied, and it is fairly to be inferred from the evidence that the injury to the plaintiff was entirely caused by reason of the insufficient size of the sewer, and of its outlet, to take care of the drainage and surface water upon these occasions.

In other words, so far as the case shows, the injury of which the plaintiff complained is wholly attributable to the plan of construction of the sewer and the general design of the system, and not at all to any fault upon the part of the city to maintain the same in good repair as originally laid out and constructed. The question presented, then, is whether or not a municipality is responsible in damages for injuries of this nature resulting entirely from some fault in the location or plan of construction of a sewer, and not at all because it has not been maintained to the standard of efficiency of its original location and plan of construction.

If this sewer had been located, designed, and built under the public statutes as they now exist and have for a long time existed, there could be, in view of the numerous decisions of this court, no doubt that this question would have to be answered in the negative. As to the determination of the question of the necessity of a public sewer, and as to its location, size and plan of construction, a town in its corporate capacity has no voice, duty, or responsibility. These duties are imposed by statute (Rev. St. c. 21, § 2) upon the municipal officers of a city or town; that is, in the case of a city, the mayor and aldermen. And in the performance of all of these duties of locating sewers, determining as to their size, grades, connections, and outlets, the municipal officers do not act as representatives or agents of the municipality by which they were chosen, but as public officers of the general state government, intrusted with discretionary powers which are to be exercised by them in quasi judicial capacity.

This view as to the capacity in which municipal officers act under the sewer statutes, and as to the responsibility of a city or town for their acts, has been frequently stated by this court in its previous decisions. Estes v. China, 56 Me. 409; Darling v. Bangor, 68 Me. 108; Bulger v. Eden, 82 Me. 352, 19 Atl. 829, 9 L. R. A. 205; Gilpatrick v. Biddeford, 86 Me. 534, 30 Atl. 99; Brunswick Gas Light Company v. Brunswick Village Corporation, 92 Me. 493, 43 Atl. 104. And it has recently been reaffirmed in two decisions by this court which will appear in the next volume of our published Reports. Atwood v. Biddeford, 99 Me. 78, 58 Atl. 417, and Kidson v. Bangor, 99 Me. 139, 58 Atl. 900. In the latter case, in enumerating the various propositions necessary for a plaintiff to establish in order to entitle him to a judgment for damages against the city, the court gave this, among others: "That the defendant had failed to maintain the sewer or to keep it in repair, so as to afford sufficient and suitable flow for all drainage entitled to pass through it. And on this point it must be shown that the defect was not in the original system established by the judicial act of the municipal officers, but that there was an actual failure on the part of the city to maintain and keep the drain in repair after its construction."

This liability of a municipality for failure to keep a public drain in repair after its construction is imposed upon it by Rev. St. c. 21, § 18, as follows: "After a public drain has been constructed, and any person has paid for connecting with it, it shall be constantly maintained and kept in repair by the town, so as to afford sufficient and suitable flow for all drainage entitled to pass through it; but its course may be altered, or other sufficient and suitable drains may be substituted therefor. If such town does not so maintain and keep it in repair, any person entitled to drainage through it may have an action against the town for his damages thereby sustained."

The case of Blood v. Bangor, 06 Me. 154, somewhat relied upon by the plaintiff, is not an authority to the contrary, but is entirely in harmony with the long line of cases which we have cited. As stated in the opinion in that case, it was admitted that the city had not maintained and kept in repair the sewer, so as to afford sufficient and suitable flow for all drainage entitled to pass through it. That fact, in and of itself, unquestionably made the city liable under the express provisions of the statute which we have already quoted.

But the sewer complained of in this case was not located, designed, or constructed under the provisions of the public statutes now existing, but under chapter 77, p. 90, of the Public Laws of 1854. And it is argued that the rule as to the liability of the city for faulty location and design of the sewerage system, or for insufficiency or...