Woodward v. Livermore Palls Water Dist

• Decision Date: 06 March 1917
• Citation: 100 A. 317,116 Me. 86
• Parties: WOODWARD v. LIVERMORE PALLS WATER DIST.
• Court: Maine Supreme Court

100 A. 317

116 Me. 86

WOODWARD

v. LIVERMORE PALLS WATER DIST.

Supreme Judicial Court of Maine.

March 6, 1917.

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by E. S. Woodward against Livermore Falls Water District. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

Argued before SAVAGE, C. J., and MADIGAN, CORNISH, KING, BIRD, HALEY, and PHILBROOK, JJ.

George S. McCarty, of Lewiston, for plaintiff. George C. Wing and George C. Wing, Jr., both of Auburn, and I. B. Clary, of Livermore Falls, for defendant.

PHILBROOK, J. The defendant is declared by its charter, found in chapter 390 of the Private and Special Laws of 1907, to be a public municipal corporation. The territorial limits of the district comprise only a portion of the town of East Livermore. The purpose for which the corporation was formed is "supplying the inhabitants of said district and of the towns of Livermore and Jay and such municipalities, together with the town of East Livermore, with pure water for domestic, sanitary and municipal purposes." The charter authorizes the corporation to fix and collect rates for water furnished to individuals, firms and corporations, which rates are to be so established as to provide revenue to pay the current expenses of operation, provide for payment of interest on all indebtedness created or assumed by the district, provide a sinking fund, and if any surplus remains at the end of any year, it may be paid to the town of East Livermore. The plaintiff is an inhabitant of the district, and brings this action to recover damages for the failure of the defendant to furnish him with a sufficient and regular supply of water.

The case was heard before a referee. From the report of his findings we learn that during the summer of 1913, by reason of lack of pressure, the supply of water which came to the plaintiff's house was insufficient at certain hours of the day, both for his own family use and for the use of his tenant in the upper part of the house. The shortage of water occurred during the hours when the defendant was engaged in pumping water through its street mains into its reservoir. This pumping reduced the pressure, and thus caused the shortage of supply. Because of this insufficient service the plaintiff refused to pay the regular and usual rates, but offered to pay for what water he had received. The defendant refused this offer, and shut off the water from the plaintiff's house for nonpayment of rates. Through mandamus proceedings the defendant was ordered to restore service upon payment by the plaintiff of a certain sum of money, found to be due by the Justice who heard the case, but less than the regular rates.

This suit was then instituted, as we have said, to recover damages sustained by reason of insufficient service before shutting off the water, and for those caused by shutting off the water entirely. The referee found as matters of fact that the water service rendered to the plaintiff had been insufficient, and not a fair and reasonable performance of its duty; that the insufficiency was caused by the defendant's own conduct; that when the plaintiff refused to pay full charges and, as a consequence thereof, the defendant shut off the water, such conduct on the part of the latter was not justifiable. In order to afford the parties an opportunity to test the legal questions necessarily involved, the following finding was made subject to the opinion of the court:

"If the court is of opinion that the defendant is liable for want of sufficient service before it shut off the water entirely, and as well for damages occasioned by unjustifiable shutting off of water, judgment is to be rendered for the plaintiff for the sum of $40 damage. If the defendant is liable for damages occasioned by the shutting off of water, but not for want of sufficient service before that time, judgment is to be rendered for the sum of $21 damage. If the defendant is not liable either for the want of sufficient service before, or for shutting off the water, judgment is to be rendered for the defendant."

At the hearing in the court below, upon motion to accept the report, it was ordered that the report be accepted and judgment rendered in favor of the plaintiff for $40 damages. Exceptions to these rulings bring the case before us.

In this state, as well as in many others, there has arisen a somewhat general legislative practice of creating subdivisions of territory and people which are denominated districts, and which are empowered to perform some public function more commonly performed by cities or towns.

"It is beyond question that the state, in the exercise of its governmental powers, may create subdivisions of its territory and people, and impose upon the subdivisions the performance of public duties for the good and welfare of the people. Such subdivisions are merely the instrumentalities or agencies appointed by the state to fulfill some part of its own functions, within a limited territory. They are public instrumentalities, or agencies, both because they are doing the state's proper work, and because they are concerned with public uses for the general public benefit. * * * These territorial subdivisions may be conterminous with city or town limits, or they may embrace more or less than the territory of a city or town. The character of a subdivision depends not upon the limits of its territory, but upon the nature of its public duties, whether municipal or not. For the term 'municipal' relates not only to a town or city, as a territorial entity, but it also pertains to local self-government in general, and in a broader sense to the internal government of a state."

The same opinion holds that:

"A body politic and corporate, created for the sole purpose of performing one or more municipal functions, is a quasi municipal corporation, and as we have said, in common interpretation, is deemed a municipal corporation." Augusta v. Augusta Water District, 101 Me. 148, 63 Atl. 663.

This defendant is one of those territorial subdivisions and, as such have been declared to be municipal corporations, its powers, duties, and liabilities must be measured by the same standards used in determining the powers, duties, and liabilities of other municipal corporations when exercising the same functions, under the same circumstances.

"In the absence of any special rights conferred or liabilities imposed by legislative charter, towns and cities act in a dual capacity, the one corporate, the other governmental. To the former belongs the performance of acts done in what may be called their private character, in the management of property or rights held voluntarily for their own immediate profit and advantage as a corporation, although ultimately inuring to the benefit of the public, such as the ownership and management of real estate, the making of contracts and the right to sue and be sued; to the latter belong the discharge of duties imposed upon them by the Legislature for the public benefit, such as the support of the poor, the maintenance of schools, the construction and maintenance of highways and bridges, and the assessment and collection of taxes." Libby v. Portland, 105 Me. 370, 74 Atl. 805, 26 L. R. A. (N. S.) 141, 18 Ann. Cas. 547.

Since this district claims, as a full legal defense to this action, that it is performing only a governmental function for the nonuser or misuser of which it is not liable in a suit at law, we must again call attention to the fact that its only function is that of furnishing a public water supply for itself and its inhabitants for the contiguous town of Jay and its inhabitants, and for the towns of Livermore and East Livermore. Moreover, by the very terms of its charter, the assumption and performance of the creative act depended upon the affirmative will of the voters of East Livermore, the town...