Portsmouth Gas-Light Co. v. Shanahan

• Decision Date: 13 March 1890
• Parties: PORTSMOUTH GAS-LIGHT CO. v. SHANAHAN.
• Court: New Hampshire Supreme Court

19 A. 1002

65 N.H. 233

PORTSMOUTH GAS-LIGHT CO.

v. SHANAHAN.

Supreme Court of New Hampshire. Rockingham.

March 13, 1890.

Case for injuries to plaintiffs' gas-pipes caused by defendant's negligence in constructing a sewer, with a count in trespass for the same injuries. Plaintiff is a corporation authorized "to lay gas-pipes in any of the public streets or highways in the city of Portsmouth, the consent of the authorities of said city having first been there for obtained to relay and repair the same, subject to such regulations, as to the health and safety of the citizens and the security of the public travel, as may be prescribed by the authorities aforesaid," and prior to 1885, with the consent of the city council, laid the pipes in question. In 1885 the city contracted with defendant to build a sewer through Deer street. Defendant executed the work with due care to prevent injury to plaintiff's pipes, and to avoid uncovering or undermining them. It was necessary to use explosives in blasting ledges, and by their use some pipes were broken, and the gas escaped. It was also necessary, from time to time, to uncover, expose, and undermine the pipes. Plaintiff seeks to recover the damages caused by breaking the pipes, and the escape of gas, and also for the expense of removing exposed pipes which would otherwise have been broken, and of establishing temporary lines of surface pipe for the supply of its customers.

Mr. Page, for plaintiff. Frink & Batchelder, for defendant.

CARPENTER, J. The city had authority to construct the sewer. Gen. Laws, c. 48, § 8; c. 78, § 6. If the plaintiffs have any interest or easement in the soil of the city streets, no part of it was taken for the sewer. They have now the same unimpaired right or interest which they had before the sewer was constructed. No damages could have been awarded the plaintiffs for a taking of their property under the law of eminent domain, (Gen. Laws, c. 48, § 8; c. 78, § 13,) if all that happened in the process of building the sewer had been foreseen, (In re Kennett, 24 N. H. 139; In re Mt. Washington Road Co., 35 X. H. 134; Eaton v. Railroad Co., 51 N. H. 504; Thompson v. Improvement Co., 54 N. H. 545.) The right of the city to build the sewer was at least equal to that of the plaintiffs to maintain their gas-pipes in the street. Assuming that their rights were equal, each was bound so to exercise his right as not unnecessarily, negligently, or unreasonably to interfere with the other's...