The facts stated in the plaintiff’s declaration present an action on the case against the defendant town for damages caused by the negligent construction of a public sewer in a public street. The alleged negligence consists in the great length of time during which the street was dug up, and in filling the excavation with farm dressing, thereby creating a nuisance by which the plaintiff suffered special damages in his business, comfort, property and the enjoyment of his estate, and for which he claims to be entitled to recover of the defendant town. If the town is liable upon the facts set out in the declaration, the action is to stand for trial; otherwise the plaintiff is to become non-suit.
It is not denied that whatever was done, and for which it is claimed that the town should be held liable, was done by the municipal officers. The allegation in the writ is that the “town
While admitting the general doctrine that no private action can be maintained against a town or quasi public corporation for a neglect of corporate duty unless such right of action be given by statute, the plaintiff’s contention is, that if a town, while acting within the scope of its municipal power, creates a nuisance to the injury of an individual, it is liable in damages therefor.
If we concede the correctness of the plaintiff’s proposition, then the difficulty of maintaining this action is by no means removed, inasmuch as the allegations contained in the declaration do not bring the acts complained of within scope of the corporate powers of the town; nor is there any allegation that such acts were performed by its officers in the discharge of any corporate duty imposed by law upon the town. Seele v. Deering, 79 Maine, 347: Anthony v. Adams,
The earlier enactments, of which the present statute is only a condensation, upon examination will be found to contain directions to the municipal officers as to the manner in which they shall construct such drains. There is no general statute authorizing towns in their corporate capacity to lay out or construct drains or sowers, as there is respecting ways. It is only when such drains have been constructed and persons have paid for connecting with them, as provided in § 9, that the town becomes responsible in regard to maintaining and keeping the same in repair, and assumes responsibilities in reference thereto.
Though chosen and paid by the town, and for many purposes its agents, (as in making contracts within the scope of their authority about the affairs of the town, or acting under the direction of the town in matters pertaining to its corporate duties, Deane v. Randolph,
The liabilities of municipal corporations for the torts or negligent acts of their officers are fixed by statute. They are to be held liable for the negligence or misconduct of their officers only when made so by express statute, or the act out of which the ’claim originates was within the scope of their corporate powers, and was directly and expressly ordered by the corporation. Burrill v. Augusta, supra; Woodcock v. Calais, supra; Anthony v. Adams, supra; Deane v. Randolph,
A case very analagous to this in principle is Cushing v. Bedford,
Of course, the rule we have been considering has no application and does not exempt municipal corporations from liability to which other corporations are subject, for negligence in managing or dealing with property held by them for their own advantage
Nor is this case governed by the principles, enunciated in another class of decisions, where cities and other municipalities have been held chargeable for negligence in the construction of sewers, or other particular works, on account of some provision in their charter or ordinances,- — or where authorized by some special statute to construct such works and from which to receive profits as a private corporation might, and when they have, therefore, assumed duties and liabilities by the acceptance of obligations not imposed by general law, as in the case of Murphy v. Lowell,
Thus in Emery v. Lowell, supra, Gray, J., says : “A municipal corporation, voluntarily accepting a statute which authorizes it to make common sewers and to assess the expense thereof on lands benefited thereby, is not exempt from liability to private actions by persons injured by its negligence in exercising the power so granted and accepted, to the same extent as it is in the performance of duties imposed upon it by general law, exclusively for public purposes, and without its corporate assent.”
It is there held, as also in Child v. Boston, supra, that after a common sewer has been constructed, and become the property of the municipality under special authority conferred and accepted, it then becomes the duty of such municipality to maintain and keep the same in repair, and for any neglect of which it would be liable to any person injured.
And such have been the decisions of our own court in Blood v.
The allegations in the plaintiff’s declaration have reference only to the acts of the “town while in the course of constructing a public sewer, * * * * under and by virtue of the statutes of this state,” and not to any dereliction of duty, on the part of the town, in maintaining or keeping the same in repair after its construction by the tribunal authorized by general statute to construct it.
The town is not liable in tort for damages resulting to the plaintiff from the work done by its officers in the discharge of a public duty imposed upon them by a general law.
Plaintiff nonsuit.