Shea v. City of Portsmouth
| Citation | 98 N.H. 22,94 A.2d 902 |
| Parties | SHEA v. CITY OF PORTSMOUTH. |
| Decision Date | 06 January 1953 |
| Court | Supreme Court of New Hampshire |
Hughes & Burns and Donald R. Bryant, Dover, for plaintiff.
Thomas E. Flynn, Jr., City Sol., Portsmouth, and Upton, Sanders & Upton, and Richard F. Upton, Concord, for defendant.
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, § 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.
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 no powers to the city beyond those already possessed and exercised by it under the general laws of the state. Section 11 of that act authorized the city to enact such ordinances as might be required to prevent pollution of the water and to prevent the use of hydrants by persons not authorized by the board of water commissioners. This section was intended to provide means by which the pollution and waste of water might be avoided. To accomplish this purpose, the act granted to the city the authority to prevent the use of hydrants except when authorized by the commissioners. This grant of authority to the city did not place the full control over the hydrants in the commissioners to the exclusion of the public officers in whom a duty of control and management had previously been placed by state law, but merely authorized the city, in the interests of avoiding pollution and waste, to regulate the use of hydrants for purposes subsidiary and incidental to their primary use in extinguishing fires. The general law giving control and management of hydrants to the fire engineers was well established in 1891. The city councils had acted under that law in establishing a fire department and in providing for the appointment of engineers. Control in the fire engineers, as provided by the general law, attached to the hydrants in Portsmouth as soon as they were acquired by the city. There is no inconsistency in separating control of the hydrants from the general water system. 'Though water commissioners * * * had the control and management of the water works, their powers and duties did not conflict with the powers given by statute to the board of engineers, which included the control and management of the hydrants as sources of water for the extinguishment of fires.' Edgerly v. Concord, 62 N.H. 8, 21. So far as the legislation of 1891 is concerned, it did not change the general law so as to relieve the chief and board of engineers of the fire department of the city of responsibility for the control and management of the hydrants.
The plaintiff contends that on the facts alleged in his declaration, the hydrant must be held to be an integral part of the...
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