Gilman v. Laconia , 55 N.H. 130 ( 1875 )

The subject of the duties and liabilities of municipal corporations, as applied to towns in this state, was discussed in Ball v. Winchester, 32 N.H. 435, Eastman v. Meredith, 36 N.H. 284, and Groton v. Haines, 36 N.H. 388.

In Ball v. Winchester, the complaint was that a highway surveyor had raised an embankment for the purpose of turning the water into a culvert which he had placed across the highway; that, the culvert being too small, the water ran over the embankment so that it ran down, united with other water, and ran further down to an older culvert which the town had permitted to become stopped up, and there, for want of a sufficient culvert, had flowed back and flooded the plaintiff's warehouse.

Here were in point of fact two causes of the injury, — an embankment and insufficient culvert, alleged to have been improperly erected by the surveyor, and another culvert permitted to become stopped by the negligence of the town.

These two causes of action were described in the declaration, that of the embankment being described in the second count, and the obstructed culvert in the first and third counts, and the allegation in each count was for permitting the highway to become defective and out of repair. The court held that the plaintiff could not recover on either of his counts, in order to which, as I understand it, it was necessary to hold not only that the town could not be made liable for the negligence of the surveyor, but, also, in regard to its keeping its highways in repair, the town owed no duty excepting that imposed upon it by statute in favor of those persons who had occasion to use the highway; and it was held that the plaintiff could not recover. The doctrine was broadly stated that ordinarily a town owed no duties except those imposed upon it by statute.

It should be noticed that in this case the cause of action stated was negligence in suffering the highway to be out of repair, and not the erecting and maintaining a nuisance.

In Eastman v. Meredith the same general doctrine was maintained, and the plaintiff there failed in his action, it being held by the court that even admitting the public duty of the town to furnish a town-hall for the holding of town-meetings, still, the statute had imposed no duty in regard to private individuals which could be the subject-matter of an action.

In the course of his opinion, however, the learned chief justice alluded to and perhaps recognized a class of cases in which municipal corporations, by reason of their ownership of property from which they derived a profit, or of being allowed some privilege, assumed or were subjected to certain liabilities in regard to private persons.

He also alluded to another class of cases in which a municipal corporation might perform its recognized duties in such way as either by negligence or otherwise to invade the rights of individuals, and so become liable to an action at common law. In the course of his opinion, he says, — "In several of the cases cited for the plaintiff, cities and towns have been held liable for private injuries done by them in the course of executing works which they were by law authorized to perform. In Scott v. The Mayor and Aldermen of Manchester, 37 Law and Eq. 495, by the 'carelessness of workmen whom the defendants employed in laying gas-pipes, a piece of metal was thrown into the plaintiff's eye, and the city was held to be liable. So, in Delmonico v. The Mayor, etc., of New York, 1 Sanford 222, an action was maintained for damage suffered by the plaintiff from the negligence of the defendants in the process of constructing a sewer. The remarks of the court in Anthony v. Adams, 1 Met. 285, are to the point, that an action may be maintained against a town in such a case."

And further on he says, — "So if a town or city maintain an erection or structure which is a private nuisance, and causes a special damage, or, in the performance of an authorized act, invade any right of property, the corporation has been held liable to a civil action. Thayer v. Boston, 19 Pick. 511; Akron v. McComb, 18 Ohio 229; Rhodes v. Cleveland, 10 Ohio 159. If the defendants in the present case had laid and maintained the foundations of their town-house across a stream, and caused the water to flow back on the plaintiff's land, according to these authorities, they would have been liable to an action for the damage.

I do not understand that the learned chief justice intimates any disapprobation of this doctrine.

In the case of Groton v. Haines, 36 N.H. 388, the same court, the same learned judge delivering the opinion, held that a town has no right, in the execution of its duty in building and maintaining a highway, unnecessarily to obstruct a watercourse, to the damage of riparian owners. He says in the course of his opinion, — "The defendant, then, had a right to a suitable culvert to convey the water in this watercourse across the road, and it was the duty of the town, or the officers of the town, to provide and maintain it for him; and when the culvert was filled up and stopped by neglect of that duty, it was a nuisance, which caused the plaintiff a private and individual damage, and, on general principles, he had a right to remove it himself, in a proper manner, doing no unnecessary damage. No complaint is made that he proceeded without due notice. He called on the surveyor to do his duty, which he neglected."

The cause of action, therefore, which is the subject of complaint in the plaintiff's writ, is, according to this authority, a nuisance, which the plaintiff might lawfully abate, and for which, according to the authorities cited by PERLEY, C. J., in Eastman v. Meredith, and apparently with approbation, an action at common law may be maintained.

The action, however, would technically be case for erecting and maintaining a nuisance, and not an action for negligence in suffering a highway to be defective.

Considered in this point of view, the judgment in Ball v. Winchester was perhaps technically correct, the action not being case for maintaining a nuisance, but case for negligently permitting the highway to be defective and out of repair, although the broad doctrine laid down in that case seems hardly consistent with the case of Groton v. Haines. I am therefore of opinion, that, both on sound principle and the doctrine of Eastman v. Meredith and Groton v. Haines, and cases cited, this action may be maintained, although it may be technically necessary for the plaintiff to amend his declaration.

SMITH, J. In Wheeler v. Troy, 20 N.H. 77, it was held that towns, for neglect to keep in repair the highways within their limits, are liable at common law and independently of the statute giving an action to the party injured. But in Eastman v. Meredith, 36 N.H. 300, the correctness of the decision in Wheeler v. Troy was questioned, and the court expressed themselves as feeling at liberty to reverse it, but were not called upon at that time to do so. The doctrine of Farnum v. Concord, 2 N.H. 392, however, was reaffirmed, where it was held that no action lies at common law against a town for damages sustained through defects in highways.

In Ball v. Winchester, 32 N.H. 442, occurs the following language: "The position is taken that the damages sustained by the plaintiff have resulted from the neglect of the town to perform a duty imposed upon them by law, and that for damage happening in consequence of such neglect of duty, the suffering party may have his remedy against the town independent of any statute provision to that effect. We are not prepared to say that there exists any sound reason for distinguishing, in the application of that principle, between the case of a town or other corporation aggregate, occasioning special damage by the neglect of a duty expressly imposed upon them, if the duty be of such a character that it may properly be considered as one owing to the party suffering from the neglect, and that of all individual occasioning such damage by a like neglect."

The principle upon which Groton v. Haines, 36 N.H. 388, was decided, is consistent with the suggestion raised in the above quotation from Ball v. Winchester.

In the later case, of Eaton v. B. C. M. R. R., 51 N.H. 504, is an able and exhaustive opinion by JEREMIAH SMITH, J., upon the subject of damages caused by municipal and other public corporations to the property of another, where it is said "that the decisions, which go to the length of exempting municipalities from liability for the infliction of injury upon the land of another, are erroneous in principle. If in the repair of highways there is a physical interference with land outside the limits of the highway, a substantial taking away of the soil of the adjacent owner, or an imposition of foreign substances upon it, so as to amount to a substantial abridgement of his right of exclusive user, the mere fact that the injury is done by a town or city ought not to deprive the land-owner of all redress. The opposite view `places individual property * * at the mercy of municipal power.' `We can solve more easily and safely questions of this character if we take pains to free our minds from the false notion that a municipality has some indefinable element of sovereign power, which takes from the property of the citizen, as against its aggressions, the protection enjoyed against the aggressions of a natural person.' The same constitutional provision that protects the right of private property against invasion by private individuals, `must protect it from similar aggression on the part of municipal corporations.'"

To the same effect are the later decisions in Massachusetts, — see Perry v. Worcester, 6 Gray 544, — where it was held that "where damage is necessarily done to the property of an individual by taking his land for a highway when authorized by public authority for public use, all damage necessarily incident to such work is regarded as contemplated when the land is so appropriated, and no action therefor will lie. Such works are legally regarded as warranted by the public in the exercise of eminent domain, and are not unlawful. But," said SHAW, C. J., "this presupposes that the public work thus authorized will be executed in a reasonable, proper, and skilful manner, with a just regard to the rights of private owners of estates. If done otherwise, the damage is not necessarily incident to the accomplishment of the public object, but to the improper and unskilful manner of doing it. Such damage to private property is not warranted by the authority under color of which it is done, and is not justifiable under it. It is unlawful and a wrong, for the redress of which an action of tort will lie;" — see, also, Sprague v. Worcester, 13 Gray 193, and Merrifield v. Worcester, 110 Mass. 216, and authorities cited.

However this principle may be regarded as having been settled in the earlier cases in this state and in Massachusetts, by the later decisions in the latter state a municipal corporation is held liable to the person suffering damage, whether from the improper construction or the improper state of repairs of its highways, not using them as such; while the cases of Wheeler v. Troy, Groton v. Haines, and Eaton v. Railroad, in our own state, recognize the same doctrine. In Wheeler v. Troy, Judge GILCHRIST remarks as follows: "These facts are adverted to as having a tendency to show that by immemorial custom, and independently of any statute that has been preserved, the towns in this state have been held liable to keep in repair the highways within their limits, and that for neglect of that duty common-law remedies, both of a public and a private character, have existed, and those of a public character, at least, put in force from a very early period. * * We are inclined, therefore, to the opinion that the general maxim of the common law, that he who is specially damaged by the breach of a duty on the part of another shall have his remedy by action, is properly applicable to the case of one who has received an injury through the neglect of a town to repair its roads."

Whether this action can be maintained depends upon the question whether the defendants' care and management of the highway was reasonable and proper under the circumstances.

Demurrer overruled.