32 N.H. 435 | N.H. | 1855
The first and third counts in the declaration proceed upon the ground that the town have neglected a duty which, by law, was imposed upon them, and that damages have resulted to the plaintiff from that neglect. The plaintiff’s case, as thus set out, will be considered, after disposing of the questions arising on the second count.
The second count alleges that the channel of the stream ac customed to flow along on the south side of the road was
The surveyor of highways, in performing his official duties, is not the agent of the town, but a public officer, clothed with such powers and burthened with such duties as the law prescribes. His authority is not derived from the town, nor is he under their control, and he cannot in any proper sense be said to act for or in behalf of the town. His powers in reference to the repairing of highways cannot be enlarged nor abridged by any action of the town upon that subject, and what he does or declines to do in the rightful exercise of his authority, is done or withheld because the law enjoins it upon him, and not because he is to act, or refrain from acting, in obedience to the injunctions of the town. He may in certain cases subject the town to liability by his official doings ; as in the case of purchasing, at the cost and charge of the town, such materials as may be necessary for the repair of highways and bridges. Rev. Stat., chap. 55, sec. 14; Comp. Stat,, p. 147. ' And for this purpose he may be regarded as the agent of the town, to the extent of purchasing materials for which they are to be liable. Brown v. Rundlett, 15 N. H. 360. So, too, he may subject the town to the payment of damages, by raising or lowering a highway, or making a ditch at the side of it, to the injury of the adjoining estate. Acts of 1848, chap. 725, sec. 1; Comp. Stat., p. 136. In the exercise of these
In the case of Benden v. Nashua, decided in Hillsborough county, at the December term, 1845, substantially the same questions which are raised under, the second count in this case came under the consideration of the court, and the principles recognized in that case are decisive of this under that count. There, the town having rebuilt a bridge across the Nashua river, considerably higher than the old bridge, the street was raised, by the selectmen acting as surveyors of highways, to correspond with the bridge immediately in front of the plaintiff’s dwelling-house, which was situated close to the line of the street, thereby seriously injuring the estate, by causing the rain water to flow into the house, and also by creating an embankment immediately in front of it. This, being prior to the act of 1848, was held to furnish no ground of action in favor of the owner of the estate against the town. And in the reasoning of the court
We do not understand, however, that the case of the plaintiff is placed, in the argument, so much upon the ground set out in the second count, as in the first and third. Here, 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 special 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 character that it may properly be considered as one owing to the party suffering from the neglect, and that of an individual occasioning such damage by a like neglect. The reasons assigned by the court for the decision in Russell v. The Men of Devon, 2 T. R. 667, cited on this point in the argument for the defendants, have no application to town corporations under our laws. That action was case against the men dwelling in the county of Devon, for an injury to the wagon of the plaintiff, in consequence of a bridge being out of repair, which ought to have been repaired by the county; to which two of the inhabitants, for themselves and the rest of the men dwelling in the county, appeared and demurred generally. Ld. Kenyon, Oh. J., said, the question was whether this body of men sued in the action were a corporation or qua a corporation against whom such an action could be maintained ; that the attempt was to maintain it by borrowing the
Assuming that the town may be held to answer for special damage resulting from their neglect of duty, at the suit of the party injured, what is the duty which, according to the allegations of the first and third counts, the defendants have been guilty of neglecting ? It is there alleged that they suffered and permitted the channel of the stream running along by the highway, and the culvert by which it was conducted across it to the river, to become filled and choked up, so that the water was thereby turned upon the plaintiff’s premises. This contains no averment of a breach of duty. It does not amount to an allegation that the town suffered the highway to become insufficient and out of repair. Indeed, all may be true, as alleged in these counts, and 'yet the highway be in proper condition and repair for the purposes 'of travel upon it. But considering it, as it has been considered in the argument, as equivalent to an allegation that it was insuffi
The next act upon the subject was that of 27th of February, 1786, entitled “ An act for mending and repairing the highways in this State;” in which was enacted, in substance, the same provision which now exists upon our statute book, rendering towns liable for damages resulting from any defect in the highways within their limits; and, though not in express terms, as in the provincial act, confining the remedy to those “ passing” upon the highway, yet manifestly implying such a limitation, by restricting it to cases of special damage happening “ to any person, his team or carriage,” thus expressing, in briefer terms, the same kind of injuries as those described more at length in the provincial act. Indeed, this act of 1786, with two other acts passed on the same day, one “ to prevent encroachments upon highways,” and the other “ for laying out new highways,” constituted a complete revision of all the laws on the .subject of highways, and the object of this change of phraseology was manifestly not to enact new provisions in this particular, but to reenact the old in a more brief and comprehensive form.
At the subsequent revisions of the statutes, in 1829 and 1843, the provision was reenacted, and at each time in a form slightly modified, but manifestly aiming at nothing more than brevity in the expression.
In this case the attempt .is made to extend the liability of towns for damages arising from defects in their highways beyond the limits prescribed for that liability in the enactments of the Legislature on that subject. The question is not, therefore, whether an action lies at common law against a public municipal corporation for damages occasioned by the neglect of a duty imposed upon such corporation, but whether, when the Legislature have enacted that they shall be answerable for the damages happening directly to a person, his team or.carriage, through a defect in the highway while using it as such, that liability can be extended, without further action of the Legislature, to consequential damages, resulting indirectly from such defect, to his build
Judgment must be entered thereon.