Stockwell v. Town of Rutland

• Decision Date: 28 October 1902
• Citation: 53 A. 132,75 Vt. 76
• Court: Vermont Supreme Court
• Parties: STOCKWELL v. TOWN OF RUTLAND.

53 A. 132

75 Vt. 76

STOCKWELL

v. TOWN OF RUTLAND.

Supreme Court of Vermont. Rutland.

Oct. 28, 1902.

Exceptions from Rutland county court; Munson, Judge.

Action by Mary P. Stockwell against the town of Rutland. Judgment for plaintiff, and defendant brings exceptions. Reversed.

Butler & Moloney, for plaintiff.

Joel C. Baker, for defendant.

ROWELL, J. This is case for negligence in leaving improperly lighted and guarded an open ditch in a highway, into which the plaintiff fell, dug for the purpose of taking up disused water pipe, to which the defendant acquired title under No. 190 of the Acts of 1894, annexing a part of the city of Rutland to the town of Rutland, and providing that the public property of the city in the annexed territory should become the property of the town, and that the town should pay to the city, among other things, the cost of the water mains the city had laid in said territory, and the cost of laying the same, but silent as to what use the town should make of the pipe. The court overruled defendant's motion for a verdict, treated the act as authorizing the town to secure to itself the value of the property thus transferred, and charged that, if the town was digging up the pipe to be used for highway purposes, it was not liable, however negligently the work was done, but if it was digging it up without reference to its duty to the public regarding highways, but for the purpose, in the first instance, of converting it into money for the benefit of its treasury it would be liable, if the case was otherwise made out. The defendant says it was error to overrule its motion and to submit the case to the jury, for that the evidence did not tend to show that the pipe was being dug up to sell, but only to be used for highway purposes, and for that the act conferred upon the town no authority to use the pipe for its private gain and advantage, nor for any purpose outside of its governmental agency.

The distinction drawn by the charge is well settled, namely, that municipal corporations proper are not liable when acting in their public and governmental capacity, unless made so by statute, but are liable when acting in their private and nongovernmental capacity, the same as corporations aggregate and natural persons. But the question here is whether the defendant was acting in its private and nongovernmental capacity in digging up this pipe for the purpose, in the first instance, of converting it into money for the benefit of its treasury. There were 37 or 38 lengths of it in all—about 450 feet-some of it 8-inch and some of it 6. The question of when a municipal corporation is acting in its private capacity, so as to make it liable, has frequently been before this court, and it is pretty well settled. Winn v. Village of Rutland, 52 Vt. 481, is a leading case on the...