Puell v. Inhabitants of Marion

• Citation: 86 A. 980,110 Me. 460
• Parties: PUELL v. INHABITANTS OF MARION.
• Decision Date: 27 May 1913
• Court: Supreme Judicial Court of Maine (US)

86 A. 980

110 Me. 460

PUELL

v. INHABITANTS OF MARION.

Supreme Judicial Court of Maine.

May 27, 1913.

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

Action by Frederick Tuell against the Inhabitants of Marion. A demurrer to the declaration was overruled, and defendant excepts. Exceptions overruled.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and HALEY, JJ.

C. B. & E. C. Donworth, of Machias, for plaintiff.

Ashley St. Clair, of Calais, and James H. Gray, of Lubec, for defendant.

HALEY, J. This is an action on the case to recover damages alleged to have been sustained by the plaintiff by reason of the defendants' negligence in carelessly constructing and maintaining two bridges, with the abutments thereto, across Cathance stream in the town of Marion, and by permitting them to fall into a condition of dilapidation, and by negligently omitting to provide said abutments with proper and suitable wings, and that thereby the navigation of said stream was unreasonably obstructed.

Cathance stream is alleged to be a non-tidal, floatable stream, a public highway through the town of Marion, and that during the time complained of the plaintiff was engaged in floating logs and lumber down said stream to a millpond below said bridges, and that by reason of the obstruction, caused by said bridges and abutments, the passage of said logs and lumber was greatly obstructed and delayed, and the plaintiff put to the expense of employing more men than he otherwise would have done but for said obstruction, and put to other expenses, which are specified in the declaration.

At the return term of the writ the defendants filed a general demurrer to the declaration, which, after joinder by the plaintiff, was overruled by the presiding justice. To this ruling the defendants excepted, and the case is before this court upon their exceptions.

The defendants rely upon two rules of law to sustain their demurrer:

First. That a common-law action cannot be maintained to recover special damages sustained by one against a municipal corporation or a town for damages received through its neglect or omission to perform a public or corporate duty, and that the statutes of this state do not authorize an action for the causes set forth in the declaration.

Second. That the cause of complaint, viz., an obstruction to the navigation of Cathance stream, constituted a public nuisance, and the plaintiff has not suffered such special damages thereby as gives him the right to maintain this action.

1. The general rule is that municipal corporations are not liable to a private action for their neglect to perform, or their negligent performance of, corporate duties imposed by statute; but if the acts complained of are not authorized by statute, and are done by authority of the municipal corporation, or are afterwards ratified by the corporation, they are liable, as an individual would be for the same wrongful acts. Keeley v. Portland, 100 Me. 265, 61 Atl. 180; Woodcock v. Calais, 66 Me. 234; Anthony v. Inhabitants of Adams, 1 Mete. (Mass.) 284; Small v. Inhabitants of Danville, 51 Me. 359; Deane v. Inhabitants of Randolph, 132 Mass. 475; Thayer v. Boston, 19 Pick. (Mass.) 511, 31 Am. Dec. 157. The law only exempts them from neglect, or their negligent performance of, their public or corporate duties Imposed by statute.

The declaration alleges, and the demurrer admits, that Cathance stream is a navigable stream and a public highway for all persons to go upon, and that the town constructed and maintained the bridges and the abutments in such condition that they were an obstruction to the navigation of said stream.

Navigable streams are public highways, that all persons have the right to pass over, to carry and to float logs, timber, and other merchandise upon; and they being public highways cities or towns have no right to obstruct the navigation thereof, unless they are given the right or the duty is imposed by statute. As stated in Commonwealth v. Coombs, 2 Mass. 492: "A navigable river is a common right, a public highway; and a general authority to lay out a new highway must not be so extended as to give a power to obstruct an open highway already in the use of the public." Arundel v. McCulloch, 10 Mass. 71; State v. Anthoine, 40 Me. 435; State v. Inhabitants of Freeport, 43 Me. 198; Rogers v. Kennebec & Portland R. R. Co., 35 Me. 319; Inhabitants of Cape Elizabeth v. County Commissioners, 64 Me. 456.

The building and maintaining of the bridges complained of not being duties imposed upon the town by the general law, the town cannot justify their construction or maintenance, if an obstruction to navigation, except by an act of the Legislature; and the pleadings do not show that they were authorized by the Legislature to erect and maintain the bridge. The declaration does contain the allegation that the town "was liable to keep in repair, and did then and there maintain them"; but the liability alleged is a statement of law which the demurrer does not admit. There are no facts stated in the declaration which authorize that conclusion.

In Cumberland & Oxford Canal Company v. Portland, 62 Me. 504, the court said: "The declaration avers, and therefore the demurrer admits, that the city of Portland did the acts complained of. Those acts are, prima facie, acts of trespass. No justification or excuse being shown, the plaintiffs are entitled to judgment." In this case the declaration avers and the demurrer admits that the defendants did the acts complained of. They were acts that obstructed the navigation of the public highway. Even when a town is authorized by the...