Wheeler v. Gilsum , 73 N.H. 429 ( 1905 )

In repairing the highway under the direction of the selectmen (Laws 1897, c. 67, s. 1), the highway agent was a public officer, for whose negligent acts in the performance of his duty the town is not liable. O'Brien v. Perry, ante, p. 198; Hall v. Concord, 71 N.H. 367; Downes v. Hopkinton, 67 N.H. 456; Wakefield v. Newport, 62 N.H. 624; Grimes v. Keene,52 N.H. 330.

The principle under which a town may be liable for an injury to private property rights by an abuse of its possessory right in the highway — permitting an unreasonable use of the land to the injury of another (Clair v. Manchester, 72 N.H. 231; Flanders v. Franklin, 70 N.H. 168; Gilman v. Laconia, 55 N.H. 130) — has no application. The plaintiff's injury was not occasioned by an unreasonable use of the town's property right, made or permitted by the town. The dangerous condition in the river was due to natural causes, or to their action combined with the negligence of public officers. These causes created a nuisance which threatened alike the property of the town and that of the plaintiff. The nuisance was not within the highway, nor was it connected therewith in any way. It did not consist in anything appurtenant to the highway, which the town used for the benefit of its highway property, though without the limits of the highway. If the town could rightfully go without the limits of the highway to abate the nuisance created by the elements and the action of the highway agent, which threatened injury to its highway property, and would be liable to the plaintiff for an injury resulting from a negligent exercise of such right by the town, the power to abate such nuisance was merely a right which the town had for its own benefit — not a duty imposed upon it for the benefit of the plaintiff. As no duty rested with the town to act for the protection of the plaintiff, its failure merely to take action is not actionable negligence. Buch v. Company, 69 N.H. 257; McGill v. Granite Co.,70 N.H. 125.

Exception overruled.

All concurred.