Clark v. Manchester , 62 N.H. 577 ( 1883 )

In the absence of a statute creating the liability, no action can be maintained against a municipal corporation for an injury arising from the neglect of a public corporate duty, from the performance of which the corporation receives no special benefit, pecuniary or otherwise. Edgerly v. Concord, 8 ante. But when the neglect is not of a public but of a private duty, and is in respect to the care and management of property from which a pecuniary or other special advantage is received by the corporation, it is liable for an injury arising from the neglect in the same manner that individuals would be liable. Cool. Torts 619, 620; 2 Dill. Mun. Cor. 981; Hill v. Boston, 122 Mass. 344, 359.

So long as the defendants maintained and used the reservoir for the public purpose of extinguishing fires within the city, they were exercising a public corporate duty, and for an injury arising from any neglect in the performance of that duty they could not have been liable. But, at the time of the injury complained of, the reservoir had not been used for any public purpose, nor in fact for any purpose, for nearly a year. Its use as a reservoir for water had been abandoned, and the defendants were engaged in filling the excavation so as to use the land for some valuable and more profitable purpose. The city was dealing with and managing the land as a private owner deals with and manages his own property. Under such circumstances the defendants would be liable for an injury resulting from their want of care, in the same manner and to the same extent that an individual would for his negligent acts in the care and management of his property.

But the owner of land, for whatever purpose it may be used, is under no obligation to keep his premises in a safe condition for the prevention of injury to trespassers and persons intruding, without license or invitation expressed or implied. He owes them no such duty. For injuries received by strangers upon his premises through his want of care, he is liable only to those who may at the time be there by invitation, by license express or implied, or upon legitimate errand. Beck v. Carter, 68 N.Y. 283, citing Blyth v. Topham, 2 Cro. Jac. 158; Pierce v. Whitcomb, 48 Vt. 127; Sweeny v. Old Colony R. R. Co., 10 Allen 368; Tobin v. Railroad Co., 59 Me. 183. The plaintiff's intestate was not upon the land of the defendants, where he was drowned, by express or implied invitation, for any purpose. The fact that the ground was unenclosed, and that the deceased and people at their pleasure went there without objection, was not an invitation; and from that fact alone no license to go there can be inferred. Cool. Torts 606; Severy v. Nickerson, 120 Mass. 306; Hargreaves v. Deacon, 25 Mich. 1. The fact that the person who suffered injury and death was an infant child does not change the question, nor create a liability against the defendants where none would have existed in case of an injury to an adult person under similar circumstances. The defendants owed no special duty to the child straying from its parents, guardians, and attendants, beyond what they owed generally to all classes of persons, and were not bound to make special provision against its falling into mischief when wandering at random upon the corporation's land. The duty of protecting the child and saving it from injury and destruction is not shifted from the parents or its proper guardians to the municipality where it resides by its chance escape from their care. Gillespie v. McGowan, 100 Pa. St. 144.

On the facts stated, the action cannot be maintained.

Case discharged.

The foregoing opinion was given at the June term, 1882. Since that time the plaintiff has amended his declaration by the addition of two counts; and the question is reserved, whether the action can be maintained upon the facts alleged in either of the new counts, and if so, what the rule of damages may be.