Shea v. City of Portsmouth
| Court | Supreme Court of New Hampshire |
| Writing for the Court | GOODNOW |
| Citation | 98 N.H. 22,94 A.2d 902 |
| Decision Date | 06 January 1953 |
| Parties | SHEA v. CITY OF PORTSMOUTH. |
Page 902
v.
CITY OF PORTSMOUTH.
Rehearing Denied March 4, 1953.
Hughes & Burns and Donald R. Bryant, Dover, for plaintiff.
Page 903
Thomas E. Flynn, Jr., City Sol., Portsmouth, and Upton, Sanders & Upton, and Richard F. Upton, Concord, for defendant.
[98 N.H. 23] GOODNOW, Justice.
The first count of the plaintiff's declaration is one for negligence. In it the plaintiff states that on December 23, 1947, he slipped and fell on the public sidewalk of Court Street in Portsmouth because of ice which had formed there as a result of water escaping from a hydrant and from a fire hose which had been attached to the hydrant on the previous day. The claim is based on the negligent use and maintenance of the hydrant and hose and also on the improper design, style, type and construction of the hydrant and hose. His cause of action in this respect rests on his allegations that the hydrant was a part of the water system of the defendant city and that in its operation of this system, the defendant was acting in a proprietary capacity.
It is conceded by the defendant that its waterworks system, as such, is a private business undertaking in the operation of which it does not act in the performance of a public corporate duty. Lockwood v. City of Dover, 73 N.H. 209, 213, 61 A. 178; Shea v. City of Manchester, 89 N.H. 547, 3 A.2d 103. The defendant claims as a matter of law that the hydrant in question was not a part of the water system but that in the use, maintenance and construction of hydrants, the city acted in a governmental capacity through the chief and board of engineers of the fire department of the city.
The hydrants of the defendant were not made a part of the waterworks system by any special legislation. The act under which the city was authorized to operate the waterworks, Laws of 1891, c. 209, states that the city has acquired the stock of the corporation known as the Proprietors of the Portsmouth Aqueduct and empowers the city to 'possess the rights, powers, privileges, franchises, and property of said Proprietors' in the same manner as if the same had been originally granted to said city. The act creating the Proprietors of the Portsmouth Aqueduct in 1797, Vol. 6, Laws of N.H., page 465, states the corporate purpose as the 'bringing of fresh water by subterraneous pipes into the said Town of Portsmouth' and includes no statement of purpose or grant of power relating to fire prevention or the establishment of hydrants. The preamble of the 1891 act states that the public good requires that the works should be enlarged to enable the city 'to afford better protection against fire' as well as an adequate supply of water for use of the inhabitants. The act also authorized the city, by ordinance, to 'prevent the use of its hydrants and reservoirs by any person except those duly authorized by the board of water commissioners,' § 11, in whom the act placed the control and management,[98 N.H. 24] § 4, and the power to construct and enlarge the works, establish rates, make regulations as to use and sell and purchase property, § 8.
For many years prior to 1891, the general laws of the state provided that the selectmen of a town, being authorized by vote of the town, 'shall appoint a chief engineer and assistant engineers, * * * who shall respectively have the powers and perform the duties of the chief and other firewards * * * and as a board shall have the powers and perform the duties of the board of firewards'. G.L. c. 106, § 21. To the board of firewards was granted 'control of all fire engines, fire-hooks, hose, and all other implements designed or used for the extinguishment of fire,' Id. § 2, and the chief fireward was directed to 'keep * * * in order all apparatus * * * and cause all cisterns and sources of water prepared for the fire department to be fully supplied and kept in order'. Id. § 11. In 1882, this court had said in connection with the same statute that public hydrants were 'sources of water' and were 'a part of the machinery under the control and management of the engineers'. Edgerly v. Concord, 62 N.H. 8, 20. The city councils of the defendant, having the powers of towns, G.L. c. 44, § 2, established a fire department prior to 1891 and provided for the appointment of a chief engineer and assistant engineers. See ordinance of City of Portsmouth adopted August 21, 1890.
Page 904
Under the special legislation of 1891, supra, c. 209, the city was authorized to purchase and operate, through a board of water commissioners, an existing waterworks system to which were attached hydrants. The mention of better protection against fire in the preamble to that act granted...
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...surviving claims. 364. Robie v. Lillis, 112 N.H. 492, 495, 299 A.2d 155 (1972). 365. Id. 366. See id. 367. Shea v. City of Portsmouth, 98 N.H. 22, 27, 94 A.2d 902 (1953). 368. State of New Hampshire v. Charpentier, 126 N.H. 56, 62, 489 A.2d 594 (1985) (emphasis omitted). 369. See Town of Ho......
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City of Manchester v. National Gypsum Co., Civ. A. No. 84-0443 P.
...control over the instrumentality alleged to constitute the nuisance, either through ownership or otherwise. See Shea v. City of Portsmouth, 98 N.H. 22, 27, 94 A.2d 902, 906 (1953) ("a nuisance arises from the use of property, either actively or passively, in an unreasonable manner"); Town o......
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...fact as a result of their location, the manner in which they are operated, or because of other circumstances. Shea v. City of Portsmouth, 98 N.H. 22, 27, 94 A.2d 902: City of Chicago v. Fritz, 36 Ill.App.2d 457, 467, 184 N.E.2d 713; In re Petition of St. George, 125 Vt. 408, 412, 217 A.2d 4......
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...Leary v. Manchester, 91 N.H. 442, 446, 21 A.2d 156; Clapp v. Town of Jaffrey, 97 N.H. 456, 458, 91 A.2d 464; Shea v. City of Portsmouth, 98 N.H. 22, 94 A.2d 902. The foregoing statutes and decisions are adequate authority for the town to contract for fire protection and a supply of water an......
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In re Methyl Tertiary Butyl Ether Products Liab., No. MDL 1358(SAS).
...surviving claims. 364. Robie v. Lillis, 112 N.H. 492, 495, 299 A.2d 155 (1972). 365. Id. 366. See id. 367. Shea v. City of Portsmouth, 98 N.H. 22, 27, 94 A.2d 902 (1953). 368. State of New Hampshire v. Charpentier, 126 N.H. 56, 62, 489 A.2d 594 (1985) (emphasis omitted). 369. See Town of Ho......
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City of Manchester v. National Gypsum Co., Civ. A. No. 84-0443 P.
...control over the instrumentality alleged to constitute the nuisance, either through ownership or otherwise. See Shea v. City of Portsmouth, 98 N.H. 22, 27, 94 A.2d 902, 906 (1953) ("a nuisance arises from the use of property, either actively or passively, in an unreasonable manner"); Town o......
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Webb v. Town of Rye
...fact as a result of their location, the manner in which they are operated, or because of other circumstances. Shea v. City of Portsmouth, 98 N.H. 22, 27, 94 A.2d 902: City of Chicago v. Fritz, 36 Ill.App.2d 457, 467, 184 N.E.2d 713; In re Petition of St. George, 125 Vt. 408, 412, 217 A.2d 4......
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