Sargent v. Town of Gilford

• Decision Date: 31 July 1891
• Citation: 66 N.H. 543,27 A. 306
• Parties: SARGENT v. TOWN OF GILFORD.
• Court: New Hampshire Supreme Court

27 A. 306

66 N.H. 543

SARGENT

v. TOWN OF GILFORD.

Supreme Court of New Hampshire. Belknap.

July 31, 1891.

Case by Walter B. Sargent against the town of Gilford for loss suffered in consequence of injuries to the plaintiff's wife caused by a defective highway. The wife, having been allowed, on petition, to file a statement of her claim under Gen. Laws, c. 75, § 9, brought an action against the defendant for her injuries. The defendant moved to dismiss this action because the plaintiff has not filed a statement of his claim.

W. S. Peaslee, for plaintiff.

E. A. & C. B. Hibbard and S. C. Clark, for defendant.

CHASE, J. The state provides public roads in part by making special appropriations for particular highways, (see joint resolutions making such appropriations passed at each session of the legislature,) in part directly by its own officers, (Laws 1887, c. 97,) and generally through the agency of counties and towns, (Gen. Laws, tit. 9.) In the performance of this duty, towns are instruments of the state,—"mere pieces of governmental machinery." One object of their creation by the state was to enable the state to perform this duty more conveniently, thoroughly, and economically through their Instrumentality. The duty is a public one, and it was placed upon towns without their procurement or assent They derive no special benefit, pecuniary or otherwise, from the performance of it. The service is not due from them to the state or public by force of a common-law obligation, but is imposed upon them by statute. If the state had undertaken to perform the duty without the intervention of towns, parties suffering damages from its neglect would have do remedy unless the state permitted itself to be sued. Beers v. State, 20 How. 527; Oarr v. U. S., 98 U. S. 433; Troy & G. R, Co. v. Com., 127 Mass. 43; Connecticut River R. Co. v. Commissioners, Id. 50, 57; Dewey v. Garvey, 130 Mass. 86; Wesson v. Com., 144 Mass. 60, 10 N. E. Rep. 762; Murdock Parlor Grate Co. v. Com., 152 Mass. 31, 24 N. E. Rep. 854. The liability of towns in respect to highways does not differ in character or extent from that which would attach to the state if it provided and maintained highways directly. It depends upon the same conditions. It is limited to that which the state permits, as set forth in the statutes on the subject Wooster v. Plymouth, 62 N. H. 193, 204, 223; Farnum v. Concord, 2 N. H. 392; Morrill v. Deering, 3 N. H. 53; Rowe v. Portsmouth, 56 N. H. 291, 294; Clark v. Manchester, 62 N. H. 577. Wheeler v. Troy, 20 N. H. 77, in which the contrary view is reported, has never been accepted as the law of the state. Assuming that the case was correctly reported, (a point on which serious doubts have been entertained,) it failed to acquire the position of an important authority in consequence of comments made before its publication In Eastman v. Meredith, 36 N. H. 284, 299, 300. There is no reported case since it was decided in which the plaintiff's cause of action is based upon the common law. There are several cases in which much thought and labor were expended to show that they came within statutory provisions, which would have been unnecessary.

If it had been understood that there was a common law, as well as a statutory liability. Conway v. Jefferson, 46 N. H 521; Woodman v. Nottingham, 49 N. H. 387; Elliott v. Lisbon, 57 N. H. 27. The fact that no one has set up a common-law liability in such cases for so many years is evidence that no such liability exists. It is so held in other jurisdictions. Mower v. Leicester, 9 Mass. 247; Oliver v. Worcester, 102 Mass. 489, 499; Hill v. Boston, 122 Mass. 344; Nash v. South Hadley, 145 Mass. 105, 107, 13 N. E. Rep. 376; Chidsey v. Canton, 17 Conn. 475; Reed v. Belfast, 20 Me. 246; Mitchell v. Rockland, 52 Me. 118; Hyde v. Jamaica, 27 Vt 443; State v. Burlington, 36 Vt. 521; 2 Dill. Mun. Corp. (3d Ed.) §§ 997, 1000; Cooley, Const. Lim. 247. Sections 7, 8, 9, c. 75, of the General Laws, were introduced into the law in 1878 as an amendment to "chapter 69 of the General Statutes, relating to damages happening in the use of highways," (Laws 1878, c. 35.) The words "every person sustaining damage to his person, team or carriage while traveling upon any highway," etc., in the amendment, were intended to cover the Idea expressed in section 1 of the chapter to be amended by the words "damages...