Wilde v. Inhabitants of Town of Madison

• Decision Date: 09 March 1950
• Citation: 72 A.2d 635,145 Me. 83
• Parties: WILDE v. INHABITANTS OF TOWN OF MADISON.
• Court: Maine Supreme Court

Page 635

72 A.2d 635

145 Me. 83

WILDE v. INHABITANTS OF TOWN OF MADISON.

Supreme Judicial Court of Maine.

March 9, 1950.

Dubord & Dubord, F. Harold Dubord, Richard J. Dubord, Waterville, Jerome G. Daviau, Waterville, for plaintiff.

Bernard Gibbs, Madison, for defendants.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

FELLOWS, Justice.

This case is on report. The record shows that a forest fire occurred in the town of Madison on October 21, 1947 and the plaintiff suffered damage to his woodlands thereby. The season was very dry. The fire started near a dump, whereon was a fire or fires kept burning to dispose of rubbish. Not far from the dump with its fires there was much accumulated slash, underbrush, and other combustible material. On the day in question there was a high wind blowing in a direction from the dump towards this debris.

The land on which this dump was situate belonged to one Harry E. Fall, and on February 24, 1948, after the forest fire, the town of Madison paid to Fall the sum of $75.00 for permitting its use as a dump for the year 1947. There was no collection of rubbish by the town, but any resident was allowed to bring and to deposit his refuse there without charge.

The facts indicate that the town of Madison, or its citizens, had been accustomed for many years to use this dumping ground, and the town paid to one Max Daigle in 1947 the sum of $160.00 for smoothing and otherwise caring for the dump, with other items for labor in clearing and constructing the road to the dump, amounting to $464.56.

The plaintiff claims that the dumping ground was maintained by the defendant town; that the town was negligent during this dry season in maintaining it; that the fire which damaged the plaintiff originated at the dump and spread to the plaintiff's property; that this dumping ground negligently maintained, although not a nuisance per se, became and was a nuisance, and the plaintiff is entitled to recover for his loss.

The defendant denies the plaintiff's contentions and says that the town was not negligent; that if the town did maintain the dump, its conduct was in the exercise of a governmental function from which the town derived no benefit or advantage; that there is no statute authorizing suit; that the acts were ultra vires; that if there was any negligence, the municipality, under the circumstances, is not liable.

This case is by agreement of the parties 'reported to the Law Court in pursuance of the provisions of Revised Statutes, Chapter 91, Section 14 for submission of the whole controversy and for final decision including the questions of damages.' In a case 'on report' the plaintiff has the burden of proof. Kerr v. State, 127 Me. 142, 143, 142 A. 197; Linn v. Barker, 106 Me. 339, 76 A. 700, 20 Ann.Cas. 697.

Harry Webber testified that he lived only 200 feet from the dump; that on October 21, 1947 he went home to noon meal; that there were slash and dry underbrush southeast of the dump where one Pinkham had been cutting lumber; that fires were burning on the dump; that he was at the dump and 'we looked it over' at a 'quarter or ten minutes of twelve;' that there was a strong northwest wind; that he saw no one about the dump at the time; that later while he and his son were eating, his son 'noticed the fire' and 'he started to call the fire department but somebody called ahead of him;' that he does not know whether any person brought papers or other inflammables to the dump between 10:30 and 12 o'clock.

The forest fire was seen by the State Forest Service from the fire station on Kelley Mountain at 12:30. The report of the Forest Service shows a strong northwest wind.

Max Daigle, paid by the town of Madison as caretaker, testified that he left the dump at 10:30 and as usual went to his home for lunch; that he did not know of any person being at the dump or going to the dump while he was at home; that there was some slash 50 or 60 feet away from the dump; that fires were always burning on the dump; that on October 21 the dump was 'smudging, no blazes;' that at times the town furnished another man to help; that the town furnished some items of fire fighting equipment; that while at home on October 21 he saw from his porch the fire and it looked to be 'somewhere around 400 feet from the dump;' that when he arrived at the fire men were fighting fire 150 to 200 feet from the dump; that after the fire was under control, he saw that the fire had burned 'right up to the dump.'

Charles Worster, a member of Madison Fire Company, testified that he went to the dump in the middle of the forenoon and found a 'small amount of fire smouldering at the base of the dump;' that Mr. Daigle 'got a shovel and put the fire out;' that later in the day he helped to fight the forest fire, and that the forest fire, because of the high wind and dry conditions, could have started from the dump but he could not tell whether it actually did or not.

Other witnesses testified as to the dry season; the fires always burning on the dump; the atmospheric conditions of the day of the forest fire, and the apparent path of the fire. No person, however, saw the forest fire when it started, and witnesses disagreed as to the exact point where it started, but stated that it was 'near' the dump fire. The dump had been used for nearly forty years as a dumping ground, and during that period no fires had previously 'got away from the dump.' No one had ever complained that the dump was a danger, or that the conditions were dangerous. The town had no notice at any time that the dump was a 'nuisance' or that anyone claimed that it was.

The Court finds that the forest fire started from the dump because of the proximity of its starting point to the dump fire; the direction of the wind; the slash and brush nearby; the dry conditions, and the absence of other probable sources. The facts proved compel this inference, although no eye saw the 'flying spark.' Duplissey v. Maine Cent. Railroad Co., 112 Me. 263, 91 A. 983; Jones v. Maine Cent. Railroad Co., 106 Me. 442, 76 A. 710.

Is the defendant town liable under the facts in this case? It has long been the general rule in Maine, as in most other jurisdictions, that towns and other public corporations are not liable for unauthorized and wrongful acts of their officers, though done in the course and within the scope of their employment. In the case of private corporations the rule is that a corporation is liable for unlawful acts and neglects of their officers and agents when done within the scope of their employment. Small v. Inhabitants of Danville, 51 Me. 359.

Where the statute authorizes or requires a municipal corporation to do some governmental act or carry out some duty, the corporation is not liable for the negligent acts of its officers in its performance, unless the liability is created by statute. Towns are then but subdivisions of the State. If the statute permits, authorizes, or directs, and the municipal corporation for its own profit or advantage negligently performs some act, there may be liability as in the case of private corporations. Moulton v. Inhabitants of Scarborough, 71 Me. 267, 36 Am.Rep. 308; Libby v. City of Portland, 105 Me. 370, 74 A. 805, 26 L.R.A.,N.S., 141, 18 Ann.Cas. 547; Palmer v. Inhabitants of Town of Sumner, 133 Me. 337, 177 A. 711, 97 A.L.R. 1292. There is no liability on the part of a town, however, if the act is ultra vires. Seele v. Deering, 79 Me. 343, 10 A. 45, 1 Am.St.Rep. 314.

The law exempts municipal corporations from neglect, or negligent performance of public or governmental duties that have been imposed, or authorized by statute. Woodcock v. City of Calais, 66 Me. 234; Burrill v. Augusta, 78 Me. 118, 3 A. 177, 57 Am.Rep. 788; Tuell v. Inhabitants of Marion, 110 Me. 460, 86 A. 980, 46 L.R.A.,N.S., 35; Bowden v. City of Rockland, 96 Me. 129, 51 A. 815; Keeley v. City of Portland, 100 Me. 260, 265, 61 A. 180; Palmer v. Sumner, 133 Me. 337, 177 A. 711, 97 A.L.R. 1292.

When a public benefit, as a hospital authorized by statute, 'descends to private profit, even incidentally, liability (of the municipality) attaches.' Anderson v. City of Portland, 130 Me. 214, 154 A. 572, 574; Libby v. City of Portland, 105 Me. 370, 74 A. 805, 26 L.R.A.,N.S., 141, 18 Ann.Cas. 547; or negligence in the keeping of stock for profit on a farm used in support of paupers, Moulton v. Inhabitants of Scarborough, 71 Me. 267, 36 Am.Rep. 308.

There may be, of course, an express statute authorizing action where otherwise there would be no liability, as in the case of defective highways. Revised Statutes (1944), Chapter 84, Section 88; or drains and sewers, Revised Statutes (1944), Chapter 84, Section 148.

The Courts have always recognized that a town may act within the scope of its authority as a town in two capacities. One is its governmental and the other its private capacity, although the line of demarcation is often indistinct and difficult to ascertain. Speaking generally, the public or governmental capacity of the municipal governmental agency is the discharge of acts or duties for the benefit of the general public. The private capacity is acting in its own matters, such as the acts as owners of property held for profit or advantage. In almost all affairs of local concern some indirect relation may be traced to a matter of health, safety, or other subject of governmental cognizance. The test is not the casual or incidental connection, it is whether there is a duty or an authorization under the statute. Libby v. City of Portland, 105 Me. 370, 74 A. 805, 26 L.R.A.,N.S., 141, 18 Ann.Cas. 547; Anderson v. City of Portland, 130 Me. 214, 154 A. 572. See also Opinions of the Justices, 58 Me. 590, 591; Bulger v. Inhabitants of Eden, 82 Me. 352, 19 A. 829, 9 L.R.A. 205.

It is well known to all citizens of this State that for more than a generation some towns and some municipal corporations have provided and maintained...