Seele v. Inhabitants of Deering

• Decision Date: 05 April 1887
• Parties: SEELE v. INHABITANTS OF DEERING.
• Court: Maine Supreme Court

10 A. 45

79 Me. 343

SEELE

v. INHABITANTS OF DEERING.¹

Supreme Judicial Court of Maine.

April 5, 1887.

On exceptions by plaintiff from superior court, Cumberland county.

Action on the case to recover damages for injuries to plaintiff's mill-pond, caused, as is alleged in the writ, by the highway surveyor of the defendant town digging a ditch which turned the drainage from Belknaps' tripe factory into the pond, thereby rendering the water unfit for use or for cutting ice. The defendants Hied a demurrer to the writ, which was sustained by the presiding judge, and the plaintiff alleged exceptions.

John J. Perry and D. A. Meaher, for plaintiff. N. & U. B. Cleaves, for defendant. Brummond & Drummond, for Belknaps.

VIRGIN, J. Assuming, what the demurrer admits, the allegations in the declaration to be true, it is obvious that a most unmitigated nuisance has been created on and about the premises of the plaintiff, to his great injury; and were the defendant an incorporated city its alleged acts would constitute prima facie such a cause of action" as might render it liable, in the absence of any justification. Cumberland & O. C. Corp. v. Portland, 62 Me. 505. But we have looked in vain through both counts for any allegations which in our view render the defendant town liable for the alleged acts which have resulted so injuriously to the plaintiff's property.

The authority and liability of our quasi public corporations known as towns, distinguished from municipal corporations, incorporated under special charters, are generally only such as are defined and prescribed by general statutory provisions. Some things they may lawfully do, and other things they have no authority for doing. To create a liability on the part of a town not connected with its private advantage, the act complained of must be within the scope of its corporate powers as defined by the statute. If the particular act relied on as the cause of action be wholly outside of the general powers conferred on towns, they can in no event be liable therefor, whether the performance of the act was expressly directed by a majority vote, or was subsequently ratified. Morrison v. Lawrence, 98 Mass. 219. So, a town is not liable for the unauthorized and illegal acts of its officers, even when acting within the scope of their duties, (Brown v. Vinalhaven, 65 Me. 402; Small v. Danville, 51 Me. 359;) but it may become so when the acts complained of were illegal, but done under its direct authority, previously conferred or subsequently ratified, (Woodcock v. Calais, 66 Me. 234, and cases there cited.)

The difficulty with the counts is that the allegations therein do not bring the acts complained of within the scope of the corporate powers of the town, or aver that they were performed by its officers in the execution of any corporate duty imposed by law upon the town. Anthony v. Adams, 1 Mete. 284. There is no intimation that the acts were done in connection with the...