Crandall v. Loomis

| Vt. | Jan 15, 1884

The opinion of the court was delivered by

Ross, J.

Upon the facts found by the- referee, the plaintiffs claim to recover of the defendant only upon the ground that he was, by agreeing to see the bill paid, the promoter of an unlawful act. The digging of a ditch in a public street without the permission of the proper authorities, is a nuisance per se, — an unlawful act. All who participate therein by counselling, directing, aiding, or in any way contributing thereto, are liable for the injurious consequences resulting to any one from the commission of such an act. But every ditch dug In a public street or highway is not a nuisance per se. The authorities may- have occasion to underdrain a portion of such street or highway and for such purpose have occasion to dig ditches therein. Such digging would not be unlawful. One of the uses frequently authorized to be made of streets in villages and cities, is, that of placing public sewers, gas pipes, and aequeducts therein. The city of Burlington had such a sewer in the street on which the plaintiff’s wife was injured. The city authorities having lawful authority to construct such a sewer in that street had the right to dig up the street for repairing the same, and for connecting private sewers with it. Having the lawful right to do these things, the proper authorities of the city had the right to license or grant permits to others to dig up such streets for such purposes. It had by ordinances prescribed the manner in which such licenses or permits should be granted. This was known to the defendant at the time of^ his interview with Lawrence Griffin, out of which the plaintiffs claim that the defendant’s liability arose. One, who had obtained in the manner prescribed, a license or permit to connect a private -drain with the public sewer, could lawfully dig up the street for such purpose, and if he did the work in the exercise of proper care and' prudence would not be liable for any injurious consequences which might result to a traveller upon such street.

Says Mr. Cooley in his work on Torts, 626, 627 : “ If however he has the consent of 'the proper public authorities, and what he does is consistent with the customary use of the way for private purposes, — as where he is making connections with a public sewer or gas main, and he observes a degree of care proportioned to the danger, and is consequently chargeable with no fault, he cannot be held responsible for accidental injuries inasmuch as in such case he has failed in the observance of no duty.” To the same effect is Wood on Nuisances, ss. 274, 275.

Hence, the act in contemplation, and for which the defendant told Lawrence Griffin he would see the bill paid, was capable of being performed in a lawful manner. As found by the referee, the defendant expressly refused to authorize or direct that a private drain should be laid from the Dodge house to connect with the public sewer in Pearl street; but gave Lawrence Griffin to understand, in the language of the referee, “that authority to proceed with the work must come from some other source than the defendant; and that the defendant expressly refused to take any responsibility in directing the work to be done ” ; and that, “ ‘ Tell your father that if ho does the job I will, seethe bill paid,’ was not intended by the defendant, or understood by Lawrence as a request or direction, to do the work, but simply as a promise to see the bill paid, if authority to do the work was obtained outside of the defendant.” Assuming, without deciding, that the defendant’s promise to see the bill paid, so far connected him with the act of Griffin in digging up the street, that he would be liable to the plaintiffs if such digging was necessarily unlawful, it cannot be assumed, nor presumed, that the defendent contemplated that Griffin should, or would, dig up the street without having first obtained a license or permit from the proper city authorities, and so commit a nuisance. When an act may be lawful or unlawful, dependent upon whether proper authority for doing the act, is obtained or not, and a man refuses to authorize or direct that it be done at all, but, being of a character highly necessary to be done, says, if done on authority, “ I will see the bill paid,” it would be extremely harsh, and against all presumptions that universally prevail in regard to innocence, to hold that lie intended and contemplated, that no lawful authority for doing the act should first be obtained, and that he thereby became a promoter of an unlawful act, occasioning injury. On the contrary, on these facts, the legal presumption is, that the defendant contemplated and intended, that Griffin, if he concluded to do the work, would obtain proper and lawful authority and direction, both from the' owner of the premises and from the proper city authorities ; and that when so done he wunld see that he was paid for the work.

On this view of the law, as applicable to the facts found by the referee, it is unnecessary to decide whether, what was done by Lawrence Griffin by way of obtaining authority from the city authorities, was so far a compliance with the city ordinances as at that time administered, as would render his interference with the street for the purpose of connecting the drain from the Dodge house with the public sewer, lawful, and the same is left undecided.

•Judgment affirmed.