Merrill v. Inhabitants of Town of Harpswell

• Citation: 112 A. 834
• Parties: MERRILL v. INHABITANTS OF TOWN OF HARPSWELL.
• Decision Date: 10 March 1921
• Court: Supreme Judicial Court of Maine (US)

112 A. 834

MERRILL

v. INHABITANTS OF TOWN OF HARPSWELL.

Supreme Judicial Court of Maine.

March 10, 1921.

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Action by George B. Merrill against the Inhabitants of the Town of Harpswell. Findings for defendant, and plaintiff brings exceptions. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, and DEASY, JJ.

E. H. Wilson, of Portland, for plaintiff.

E. G. Wilson, of Portland, for defendant.

SPEAR, J. This case comes up on the following exceptions.

This is an action of assumpsit, commenced November 15, 1919, entered at the January term, 1920, and tried by the justice, without the intervention of a jury, at the May term, 1920, subject to exceptions in matters of law.

The ad damnum is $2,000.

The plea is the general issue.

The justice found as follows:

"It was enacted in chapter 356 of the Private and Special Laws of 1883 that—

"'Authority is hereby given to lay out, construct and maintain a bridge with a draw, suited to the purposes of navigation, across and over the tidewaters separating Orr's Island from Bailey's Island, in the town of Harpswell.'

"On February 23, 1912, the selectmen of Harpswell made return of the laying out of a way connecting the southerly extremity of an existing way on Orr's Island with the northerly extremity of an existing way on Bailey's Island. This return makes no mention of a bridge, a draw, or of any contemplated adaptation to the requirements of navigation.

"At the annual town meeting of 1912 in Harpswell it was voted—

"'To accept the road and way for a bridge as laid out by the selectmen from Orr's Island to Bailey's Island.'

"At a special town meeting in Harpswell, held on April 2, 1912, acting upon an article in the warrant of the following tenor:

"'To see if the town will vote to construct a bridge between Orr's and Bailey's Island on the way as laid out by the selectmen, and accepted by the town at the annual meeting March 4, 1912, determine kind and cost of same and manner in which the money will be provided to build the bridge'

—it was voted:

"'To accept proposition as per motion of C. S. Thomas read at the meeting, being tie same as drawn up by Mr. Gulliver and as follows Voted that the town proceed to construct a bridge with necessary approaches and abutments thereto, between Orr's Island and Bailey's Island on the town way as laid out by the selectmen and accepted by the town March 4, 1912, and that the selectmen be and they hereby are authorized and directed to procure plans, specifications, and estimates for the same, to advertise for bids and to enter into contract therefor in the name and in behalf of the town, with authority to reject any or all bids; and the selectmen are hereby constituted a committee with the power to build the bridge and its approaches as herein provided.'

"The record of this vote contains further provisions relating to the method of financing the proposition, which are immaterial to the determination of the matters in issue.

"Subsequently, at the request of the selectmen of Harpswell, the plaintiff prepared and submitted plans and specifications for a bridge from Orr's Island to Bailey's Island, which plans and specifications were used by the selectmen in connection with the advertising for bids for construction, which bids were opened on December 13, 1913, in the presence of the entire board of selectmen and the plaintiff.

"The case does not show that any building contract was ever made, or that any bridge has ever been constructed.

"It is a well-settled rule of law that whoever contracts with persons assuming to act in behalf of a municipality does so at his peril, and is bound to ascertain the authority of such persons to act for and bind the municipality which they assume to represent.

"In the present case I hold, as a matter of law, that, inasmuch as the contemplated bridge was to cross tidewaters, authority for its construction must come from the Legislature, and that in exercising the authority granted the town must follow strictly the legislative provisions conferring it.

"In the case at bar, authority was granted to 'lay out, construct and maintain a bridge with draw, suited to the purposes of navigation,' but the first step taken in pursuance of the legislative authority, as the case shows, was the laying out of a 'way,' and, if it were to be granted that the laying out of a way should be held to be equivalent in law to the laying out of a bridge, it nowhere appears that such a bridge was laid out as was authorized by the Legislature, namely, 'a bridge with a draw, suited to the purposes of navigation.' Indeed, the first appearance of this essential element in the proceedings is disclosed in the testimony of the plaintiff, who says that he provided for a draw in the plans which he drew.

"I hold, therefore, as a matter of law, that the selectmen were acting without authority in directing the plaintiff to prepare the plans and specifications which he undoubtedly did prepare, and that therefore the town cannot be held for payment.

"I therefore find for the defendant.

"To which finding of law the plaintiff takes exceptions and prays that his exceptions may be allowed. The evidence in the case is made a part of the exceptions."

Upon an inspection of the finding of the justice, his decision seems to be based upon the following conclusion, that—

"It nowhere appears that such a bridge was laid out as was authorized...