55 A. 935 | N.H. | 1903
By the special legislative enactment of 1893 (Laws 1893, c. 264, s. 1) the whole territory of the defendant city was constituted one highway district and placed under the superintendence of a board of street and park commissioners. The act provides that the board "shall have full charge, management, and control of the building, constructing, repairing, and maintaining of all the streets, highways, lanes, sidewalks, and bridges, and public sewers and drains, and of the public parks and commons, in said city of Manchester, and shall have the expenditure of all appropriations which the city councils of said city shall from year to year vote for such purposes; and all bills for expenditures from the appropriations voted from year to year by the city councils for such purposes shall be approved by said board before the same are paid by the city treasurer. Said board shall for such purposes have all the powers now by law vested in the board of mayor and aldermen, the city councils, and the highway surveyors of the various highway districts of said city."
As a result of this legislation, it is contended that the commissioners are not the agents or servants of the city, but are public officers deriving their authority from the legislature; that neither the city nor the board of mayor and aldermen can direct or control them in the performance of their duties; and that being public officers, the city is not responsible for their negligent acts or omissions, or those of their employees, in constructing the highway in question. Gross v. Portsmouth,
But the fact that the inadequate culvert — a constituent part of the *233
highway — was constructed by the commissioners is not necessarily determinative of the defendants' freedom from liability in this action. Prior to the act in question, towns and cities were made liable by statute (P. S., c. 76; Laws 1893, c. 59) for injuries suffered by travelers upon their highways, due to their obstruction, insufficiency, or want of repair, provided the defect or insufficiency was one the town or city ought to have remedied, and it knew, or in the exercise of due care could have known, of the defect or insufficiency and remedied it; and this was so whether the creation of the defect or insufficiency was due to the act or acts of their agents, of public officers, strangers, or to some natural cause. Johnson v. Haverhill,
In Hardy v. Keene, supra, the proposition was stated as follows: "Whether the defect was caused by the negligence of the surveyor or not, the liability of the town depends upon the further questions: whether, under the circumstances, the town were in fault; whether they had or should have had notice of the defect; and whether they had a reasonable opportunity to remove it."
Towns and cities were also held liable at common law for damages occasioned an owner of land adjoining a highway, caused by the act of a public officer in obstructing a natural waterway, or by his so constructing the highway as to turn water upon the adjoining land, provided the city or town neglected, after reasonable notice, to remedy the difficulty; that it was not only the duty of the town in constructing the highway to provide some suitable and sufficient means by which to care for the water, but, if improperly constructed by a public officer, to remedy the defect after it knew of it and had a reasonable opportunity to do so. Gilman v. Laconia,
This right of ownership in the highways in the city of Manchester is still vested in the city, unless it was the intention of the legislature, in enacting the law creating the board of street and park commissioners (Laws 1893, c. 264), to repeal the provisions of chapter 75 of the Public Statutes, rendering towns liable to indictment for neglecting to make new highways lawfully established, and for neglecting to keep its highways "in good repair suitable for the travel thereon," and to repeal the provisions of chapter 59 of the Laws of 1893, rendering towns liable to travelers upon highways for damages happening to them by reason of certain defects therein, so far as they pertain to the city of Manchester. We are of the opinion that it was not the intention of the legislature, in enacting chapter 264, that the city should be freed from the liabilities and duties imposed by chapter 75 and chapter 59, or stripped of all power to perform those duties, — at least, in cases where the commissioners neglect to perform them.
The city being charged with the duty of constructing and maintaining highways, the law, in the absence of express authority, by implication confers upon it the power to employ a suitable agency to perform the duty; otherwise, as said in Henry v. Haverhill,
Judgment for the plaintiff.
All concurred. *235
