Resnick v. City of Manchester
| Decision Date | 20 April 1955 |
| Citation | 113 A.2d 496,99 N.H. 436 |
| Parties | Helene RESNICK v. CITY OF MANCHESTER. |
| Court | New Hampshire Supreme Court |
Sheehan, Phinney & Bass and Frederick W. Branch, Manchester, for plaintiff.
J. Francis Roche, City Sol., Manchester, for defendant.
The authority under which the City of Manchester was acting in the construction of the sewer in question was that granted by Laws 1945, c. 188, pt. 22, § 4, which provides: Persons whose drains enter such sewers or whose lands receive special benefit therefrom may be assessed their just share of the expense of constructing and maintaining them, § 7, and sewer rents may be established to defray 'the cost of construction * * * management, maintenance, operation, and repairs.' § 8.
In Lockwood v. City of Dover, 73 N.H. 209, 211, 61 A. 32, 33, it was held that work undertaken under similar statutory authority '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 [the city] may be liable in damages for injury to persons or property.' This rule has been consistently followed in connection with the maintenance and operation of sewers and is too strongly established in this state to be questioned. Mitchel v. Dover, 98 N.H. 285, 99 A.2d 409.
No reasons appear why a distinction should be made between work performed in the course of construction of sewers and that done in connection with their maintenance and operation after their completion. The authority granted by the statute applies to both the construction and maintenance of sewers. Neither type of work is required of cities but both are authorized in the discretion of the mayor and aldermen. Both the cost of construction and the cost of maintenance may be collected by means of assessments or sewer rents from those benefiting from the work. It seems apparent that the Legislature did not regard either activity as a governmental function but as undertakings 'for the local accommodation and convenience'. Roberts v. Dover, 72 N.H. 147, 154, 55 A. 895, 899.
It is of no significance that the defendant in this case...
To continue reading
Request your trial
-
Hurley v. Town of Hudson
...system. Allen v. Hampton, 107 N.H. 377, 222 A.2d 833 (1966); Mitchel v. Dover, 98 N.H. 285, 99 A.2d 409 (1953); Resnick v. Manchester, 99 N.H. 436, 113 A.2d 496 (1955); Roberts v. Dover, 72 N.H. 147, 55 A. 895 (1903). Nor is this a case where a municipality invades an adjoining landowner's ......
-
Opinion of the Justices
...v. City of Nashua, 93 N.H. 28, 35 A.2d 194. See Kardulas v. City of Dover, 99 N.H. 359, 360, 111 A.2d 327. Cf. Resnick v. City of Manchester, 99 N.H. 436, 113 A.2d 496; Mitchel v. Dover, 98 N.H. 285, 99 A.2d 409. The same immunity extends to counties. Cushman v. Grafton, 97 N.H. 32, 79 A.2d......
-
Allen v. Town of Hampton
...defendant in its private capacity, it is liable for damages resulting from its negligent conduct of that work. Resnick v. City of Manchester, 99 N.H. 436, 437, 113 A.2d 496; Wadleigh v. City of Manchester, 100 N.H. 277, 278, 123 A.2d Defendant's motions to dismiss were properly denied. Exce......
-
Wadleigh v. City of Manchester
...defendant in its private capacity, it is liable for damages resulting from its negligent conduct of that work. Resnick v. City of Manchester, 99 N.H. 436, 437, 113 A.2d 496. The plaintiff's declaration also contains a count in case based on strict liability and one in trespass which would l......