Altnow v. Town of Sibley
14 N.W. 877
Minn.
1883
Check Treatment
Beeby, J.

Is a statutory town liable in a civil action for damages resulting from the disrepair of a public highway?

This question, though new here, has often been answered by other courts. The very great preponderance of authority holds that no such liability exists, unless by express statute. A multitude of adjudged cases upon the subject are collected by Chief Justice Gray in Hill v. City of Boston, 122 Mass. 344. See, also, 2 Dillon, Mun. Corp. §§ 996, 1000; 1 Thompson, Negligence, 618, 620, and numerous citations. The ground upon which the exemption from liability is usually placed is substantially this: A town is a quasi and public corporation only, and, as such, a part of the government of the state. The duties enjoined upon it by law are enjoined upon it as a part of government, and not otherwise. They are, therefore, public in nature ; that is to say, they are duties to the state, and not to private persons. Hence, a breach of one of them creates a liability to the state only, — a public liability, — on account of which an offending town may be amenable to a public action by indictment. This is the general rule. Exceptions may, of course, be made by statute, so that, in addition to or in place of the public liability, a town may be subjected to a private action for damages.

In this state, while it is made the duty of towns to keep public highways in repair, there is no statute imposing upon them a liability to private persons for -damages resulting from a failure to perform the duty. We are, therefore, of opinion, in accordance with the great weight of authority, that a statutory town is not liable in a. civil action for damages resulting from the disrepair of a public highway. That this conclusion is also in accordance with the general understanding prevailing in the profession and in the community ever since *190the organization of the territory, (over 30 years,) is-pretty clear, when it is considered that there is no instance, so far as we discover from the briefs of counsel or otherwise, of an attempt to support such an action as this in this court. This is a consideration of weight when the frequency of the occasions for such actions, if they were maintainable, is borne in mind. As remarked by Ashurst, J., in Russell v. Men of Devon, 2 Term Rep. 667: “It is a strong presumption that that which never has been done cannot by law be done at all.”

Reference is made by counsel to the fact that, as held generally and by this court, (Shartle v. City of Minneapolis, 17 Minn. 284, (308;) O'Gorman v. Village of Morris, 26 Minn. 267; and many other cases,) municipal corporations having special charters, with provisions imposing the care of streets upon them, are liable, in private actions, for disrepair of streets; and it is contended that as by statute it is made the duty of towns to keep highways in repair, and taxation for -that purpose authorized, the rule of liability applicable to the corporations mentioned ought to be applied to them .also. But whatever may be the reasons assigned, and whether they are consistent, or, in all instances, sensible or not, the distinction .between the two cases is clearly and firmly established. See authorities supra.’

The fact referred to by plaintiff’s counsel, that, under the statute now in force, a town is organized upon the petition — the voluntary request — of a majority of the electors within its proposed territory, does not bring them within the rule applied to municipal corporations with special charters, or its alleged reason. It is said that this defendant was not organized under the present statute; but, irrespective of this, and, whatever the fact may be, the petitioners for a town organization simply avail themselves of a general law under which an organization of a town may be effected — that is to say, of a town with its ordinary and statutory powers and liabilities. In principle, we perceive no difference between this case and Dosdall v. County of Olmsted, ante, p. 96, in which a rule analogous to that above stated was applied to a county, and upon like grounds.

Order affirmed.

*191Gilfillan, C. J.

I find it hard to distinguish in principle between cities and towns in respect to their liability for neglect of the duty imposed upon them to repair streets and highways. But the distinction is established by the great mass of authorities, and was recognized and acted on by this court in Dosdall v. County of Olmsted, ante, p. 96. That case, I think, disposes of this.