Lockwood v. City of Dover

CourtSupreme Court of New Hampshire
Writing for the CourtBINGHAM, J.
Citation61 A. 32,73 N.H. 209
Decision Date07 March 1905

Exceptions from Superior Court.

Case for negligence by John Lockwood, as administrator, etc., against the city of Dover. In the superior court a demurrer to the declaration was overruled, and defendant excepted. Exception overruled.

Case for negligence. The declaration contains three counts. The first count alleges that the defendants own and maintain a common sewer for carrying away surface water and sewerage from the dwelling houses in the city, which empties into a brook that runs through the lot on which the plaintiff's dwelling is located; that they so negligently managed the sewer that large quantities of filth and excrement were emptied into the brook, and were allowed to become deposited upon its bed and banks, and to remain exposed, rendering the plaintiff's premises unhealthy, and causing offensive and unwholesome smells and stenches to pervade the dwelling; and that by reason thereof the plaintiff's intestate sickened and died. The second count alleges that the defendants own and maintain a system of waterworks for the purpose of furnishing to citizens a supply of water for domestic and other uses, receiving compensation therefor; that the defendants were negligent in not cleaning out their water pipes and providing means whereby they could be cleaned out; and that in consequence thereof foreign and decayed matter became lodged in the city's pipes, entered the pipes leading to the plaintiff's dwelling, and was there drank by the plaintiff's intestate, causing him to sicken and die. In the third count the negligent acts and omissions alleged in the first two are set out as concurring causes.

The defendants filed a special demurrer, setting forth that the declaration contains separate causes of action, arising from the alleged negligent acts of two distinct boards —the board of street and park commissioners (Laws 1903, p. 220, c. 223), and the board of water commissioners (Laws 1881, p. 634, c. 256, § 20); that the street and park commissioners are public officers over whom the city has no control, and for whose negligent acts and omissions it is not responsible; and that the declaration is void for duplicity. The demurrer was overruled, and the defendants excepted.

Walter W. Scott, Frank E. Blackburn, and James A. Edgerly, for plaintiff. George T. Hughes, for defendants.

BINGHAM, J. Whether the negligence complained of in the first and third counts was due to the acts or omissions of the board of street and park commissioners while acting in pursuance of the legislative act under which they were created, or of other officers of the city, is matter of proof, and cannot be gathered from the declaration. If it was not due to the acts or omissions of the board of street and park commissioners, but of some recognized agency of the city, it seems clear that the demurrer was properly overruled. If, on the other hand, the negligent acts or omissions were those of the street and park commissioners, then the question is presented whether the commissioners, in the construction and management of the sewers of the city, are independent officers performing a public governmental duty, or are officers and agents of the city, engaged in the management of property owned or employed by the city in its private corporate capacity.

The charter of the city of Dover provides that "the city council shall have power to construct drains and common sewers through any highways, streets, or private lands, paying the owners such damages as they shall sustain thereby, such damages to be assessed by the may or and aldermen, in the same manner, with the same right of appeal, as is provided by law in regard to the laying out of highways by the selectmen of towns, and to require all persons to pay a reasonable sum for the right to open any drain into such public drain or sewer." Laws 1855. p. 1597, c. 1099, § 19. In 1867 this provision was made a general law applicable to all cities. Gen. St. c. 44, § 19. In 1870 the Legislature passed an act providing that the board of mayor and aldermen in cities "may lay, make, maintain, and repair all main drains or common sewers which they shall adjudge necessary for the public convenience or the preservation of the public health" in any city where the city council shall adopt the provisions of the act. Laws 1870, pp. 405, 406, c. 5, §§ 1, 6. Whether this act was adopted by the city councils of Dover does not appear; but in the revision of the laws in 1878 the act of 1870 was made a general law applicable to all cities, without regard to its being adopted by the city councils (Gen. Laws 1878, c. 78, § 6), and section 9, c. 44, of the General Statutes of 1867 was re-enacted. Gen. Laws 1878, c. 48, § 8. In the revision of 1891 these provisions were not changed. Pub. St. 1891, c. 50, § 8; Id. c. 79, § 2. Whether section 2, c. 79, Is inconsistent with section 8, c. 50, or simply confers additional authority, it is now unnecessary to consider. It is clear that the city had authority to construct sewers. Portsmouth Gaslight Co. v. Shanahan, 65 N. H. 233, 241, 19 Atl. 1002.

Our statutes also provide that all main drains and common sewers, when constructed, shall be "the property of the city" (Pub. St. 1891, c. 79, § 2); and, as a consideration for undertaking the work, the city may require all persons to pay a reasonable sum for the right to open any drain into any public drain or common sewer (Pub. St. 1891, c. 50, § 8); or may cause to be "assessed upon the persons whose drains enter such main drains or common sewers, or whose lands receive especial benefit therefrom in any way, their just share of the expense of constructing and maintaining the same." Pub. St. 1891, c. 79, § 4. When cities voluntarily accept the provisions of such laws by acting under them, it is held that the work which they undertake is not a mere matter of public service, for the general and common good, and governmental in its nature, but of private corporate advantage, for The negligent performance of which they may be liable in damages for injury to persons or property. Eastman v. Meredith, 36 N. H. 284, 291, 292, 72 Am. Dec. 302; Rowe v. Portsmouth, 56 N. H. 291, 22 Am. Rep. 464; Clark v. Manchester, 62 N. H. 577, 579; Portsmouth Gaslight Co. v. Shanahan, 65 N. H. 233, 241, 242, 19 Atl. 1002; Roberts v. Dover, 72 N. H. 147, 55 Atl. 895; Child v. Boston, 4 Allen, 41, 81 Am. Dec. 680; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; Emery v. Lowell, 104 Mass. 13, 15; Haskell v. New Bedford, 108 Mass. 208; Murphy v. Lowell, 124 Mass. 564; Bates v. Westborough, 151 Mass. 174, 182, 184, 23 N. E. 1070, 7 L. R. A. 156; Coan v. Marlborough, 164 Mass. 206, 208, 41 N. E. 238, and cases there cited; Will. Mun. Liab. §§ 156, 157, 160.

In Roberts v. Dover, supra, this court said: "In Rowe v. Portsmouth, 56 N. H. 291, 22 Am. Rep. 464, it was held that in maintaining a public sewer a city is bound to use that degree of care and prudence which a discreet and cautious individual would use if the whole loss or risk was to be his alone. * * * The fact that it is a public corporation, performing certain public duties, does not exempt it from liability for negligence when performing a work not imposed upon it as a public agent, but voluntarily assumed by it under a legislative license. Having undertaken the construction and management of a system of sewerage for the local accommodation and convenience, its duties to individuals liable to be damaged thereby is measured by the same rule of ordinary care and prudence under the circumstances as would be applied if it were a private business corporation, partnership, or individual engaged in the same work."

It may be regarded as settled by our decisions that a municipality is liable to an action for negligence in building and maintaining sewers, not because they are a source of direct pecuniary profit, but because they are built and maintained for the particular local advantage of the municipality, and because the charge of their construction and maintenance is not an obligation imposed by law without the assent of the municipality, but voluntarily assumed.

The same rule of liability is recognized and enforced where cities accept a statute authorizing them to lay and maintain water pipes for the purpose of supplying their inhabitants with water and to receive payment therefor. Grimes v. Keene, 52 N. H. 330; Rhobidas v. Concord, 70 N. H. 90, 47 Atl. 82, 51 L. R. A. 381, 85 Am. St. Rep. 604; Hand v. Brookline, 126 Mass. 324; Bacon v. Boston, 154 Mass. 100, 28 N. E. 9; Powers v. Fall River, 168 Mass. 60, 46 N. E. 408; Aldrich v. Tripp, 11 R. I. 141, 23 Am. Rep....

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    ...negligence where the board was engaged in the performance of a municipal duty rather than a corporate one. Lockwood v. City of Dover, 73 N.H. 209, 61 A. 32 (1905). A municipality was held liable for defective sewers under the control of board of public works in Googin v. Lewiston, 103 Me. 1......
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